Pretoria - When he held the newborn in his arms, he realised he had not appreciated the psychological effect his sperm donation would have on him when he entered into the donorship agreement.
While the man who donated sperm to a same-sex couple had played an active role in his son’s life up to now, the couple no longer want him in the child’s life. The boy will turn 5 later this year.
The man, who cannot be identified to safeguard the rights of the child, and his mother will turn to the Gauteng High Court, Pretoria, next week in the first part of a legal bid to have access to the child.
They want immediate contact with the child, pending an investigation by the Family Advocate to determine what is in the child’s best interest. The man and his mother have approached the court, under the Children’s Act for an order that they be granted parental rights and responsibilities over the child.
He is questioning many aspects of the upbringing of his biological child by the two mothers, cited as respondents in the case.
The matter raises important constitutional issues regarding the rights of children born by gamete donation as well as the adults involved. The couple are opposing the application.
The child was born to the two women as a result of the successful execution of a sperm donorship agreement between them and the man, who is homosexual. He reacted to an advertisement they had posted on social media in 2015 and he offered to donate his sperm to them.
The parties met and a donorship agreement was prepared and signed. It will be argued on behalf of the man that he did not receive legal advice before signing the donorship agreement.
The mothers allege the agreement was prepared by an attorney, but the man maintains no consultations between him and an attorney took place. He said he never underwent a psychological evaluation before signing the agreement.
Under this, the man agreed he would neither make contact with nor be entitled to any rights to the child to be born from the donation.
After the child was born, an unusual situation arose. Instead of the man not seeing the child or being involved in his life, the donor and his mother (the child’s biological grandmother), became close friends with the newly established family. A bond developed between them and the child.
It will be argued that the man, who never expected to become a father, having regard to his own sexual orientation, experienced a love he had never imagined he would for the child.
The donor says he and his mother became actively involved in the life and upbringing of the child, which the couple deny.
The two mothers lived on the biological father’s smallholding for some years in a separate house, while the grandmother lived on a smallholding next door.
According to court documents, the man built an emotional bond with the child over the years. He paid towards a lot of his needs as well as his birthday parties and bought him gifts.
However, early last year, after the donor had spent four years seeing his son growing up and the grandmother being involved in the boy’s life, the couple cut all ties with the man and his mother.
They had since refused them any contact or involvement with the child.
The man is questioning whether it is in the best interest of the child to remain solely in the care of the respondents. Aspects raised are that they have removed him from nursery school and opted for home schooling and they occasionally take him to inappropriate places such as pubs.
The respondents are relying on the agreement they reached with the sperm donor, in which they said he had renounced his rights. They say the grandmother has no legal standing in being a party to the application, as she has nothing to do with the issue.
It will be argued, on behalf of the grandmother, that she does have rights as the biological grandmother. She says she had nothing to do with the agreement between the respondents and her son.
Shani van Niekerk of Adams & Adams Attorneys, assisted by two senior advocates, is acting for the applicants in the case which is due to make legal history.
Pretoria News