By President Sambo and Konanani Raligilia
Last year, it was reported that the High Court and Labour Court’s top advocate and acting judge, Vuyani Ngalwana SC, is intending to appeal a ruling that ordered him to pay maintenance for twins he had with a woman he says he had a sperm donor agreement with. The current case of Adv Ngalwana SC reminds us of another comparable and much publicised case of sperm donation in the North Gauteng High Court, in which one John consented to donate sperm to help her friend become a mother, believing he was only making a kind gesture. However, years later, when he wished to be a part of the child’s life, the law did not appear to have a clear answer as to whether he was simply a donor or a father with parental rights and responsibilities.
The landscape of family formation is rapidly evolving in South Africa, with more individuals and couples, particularly LGBTQ+ families and single parents, turning to assisted reproductive technologies (ART) to conceive children. Among these, known sperm donation is gaining prominence. Unlike anonymous donations through fertility clinics, known sperm donations involve a donor who is personally known to the recipient, as in the case of Adv Ngalwana SC. While this route offers relational and emotional benefits, it also raises significant legal questions. Is the donor a father or merely a genetic contributor, and what rights and responsibilities do they have? The Children’s Act 38 of 2005 (the Children’s Act) regulates ART and parentage but does not specifically address known sperm donors.
Section 40 of the Children’s Act assumes that children conceived through artificial fertilisation come from anonymous donors at fertility clinics and are thus legitimate children of the recipient parents. When a known donor is involved, particularly in informal arrangements, the issue of parental rights and responsibilities becomes uncertain. Courts must navigate the lack of statutory guidance while ensuring the best interests of the child, as mandated by Section 28(2) of the Constitution of the Republic of South Africa, 1996.
One mechanism increasingly used to clarify roles and responsibilities is the known donor agreement. These are private contracts between the donor and recipient(s) setting out expectations regarding parentage, financial support, contact, and decision-making. However, South African law does not formally recognise or enforce such agreements, particularly where they may conflict with the child’s best interests, as outlined in the Constitution and the Children’s Act. Although these agreements can offer a useful framework, they cannot supersede statutory provisions or the jurisdiction of the High Court, which serves as the upper guardian of all minor children. In the case of BR v LS 2018 (5) SA 308 (KZD), the Court had to decide whether a “known sperm donor agreement” is legally valid. Whilst the Court was not persuaded by the arguments of either party, the Judge remarked that such agreements may be contra bones mores (contrary to good morals or public policy). The Court however granted the donor parental rights and responsibilities, including the right to have contact with the minor child. In deciding that matter, the Court considered whether the involvement of the donor prior to, during and after the child’s birth complied with the requirements of section 21 of the Children’s Act.
It is trite that in all matters pertaining to a child, the best interests of the child are paramount. In accordance with section 24 of the Cildren’s Act, when an application for guardianship of a child is sought, the Court must consider the following factors:
- The best interests of the child.
- The relationship between the applicant and the child, and any other relevant person and the child; and
- Any other fact that should, in the opinion of the court, be taken into account.
In South African law, a biological father can obtain parental rights and responsibilities automatically (if married to the mother at conception or birth), by agreement, or through a court order. For known sperm donors who are involved in the child’s life, the lines between donor and father can blur, leading to potential legal disputes over custody, maintenance, and guardianship. The Children’s Act allows the High Court to grant parental rights to a donor if it serves the child’s best interests.
Comparatively, the UK and Australia have more structured legal frameworks for sperm donation compared to some other countries. In the UK, the Human Fertilisation and Embryology Act 2008 specifies that sperm donors are not legal fathers if conception happens through a licensed clinic. In Australia, laws vary by state, but generally, known sperm donors have no legal or financial responsibilities toward a child unless a court identifies them as legal parents. The legal assumption is that the child belongs to the parents who register the birth. In Re Patrick [2002] FamCA 193, Guest J held that the sperm donor was permitted contact with the child to the extent that this was in the child’s best interests. Guest J did, however, hold that due to the way particular provisions of Australia’s Family Law Act 1975 are drafted, a sperm donor cannot be regarded as the ‘parent’ of the child. This distinction between a donor and a father has significant implications for families, and without clear legislation, courts often face complex interpretations of the law.
To ensure certainty which support diverse parenthood pathways in South Africa, legal reform is urgently needed. The Children’s Act should be amended to include provisions for known sperm donation, recognising donor agreements with judicial oversight. Furthermore, the legal system must clarify when known donors can acquire or be excluded from parental rights.
Authors:
- President Sambo: Senior Partner at Sambo and Makgabutlane Attorneys
- Konanani Raligilia: Senior Lecturer at the Department of Jurisprudence at UNISA
Authors write in their personal capacities.