WHILE a judge said he had considerable understanding for the anguish of a sperm donor who wanted access to his son, it was not in the child’s best interests.
Gauteng High Court, Pretoria Judge Jody Kollapen turned down the first part of an application by the sperm donor to see the child, 5, on some weekends, birthdays and holidays.
The father wanted the arrangement pending an investigation by a family advocate into what is in the child’s best interest. He then wanted to bring a later application for a more permanent arrangement regarding access to the boy.
But Judge Kollapen said the child’s parents, a lesbian couple of which one was the biological mother, were entitled to their nuclear family’s privacy.
He said all indications were that despite claims to the contrary by the sperm donor, they were good parents.
While the sperm donor (applicant) could lodge the second part of his application, the judge made it clear that he did not think it would be in the child’s interest.
In the opening to his judgment, Judge Kollapen recited a poem by a Lebanese poet:
Your children are not your own They are life's longing for itself.
They come through you, but not from you. And though they are with you yet they belong not to you.
Judge Kollapen said this case was about a young child and, while the dispute in law related to contact and further rights to the child, in many respects it raised philosophical questions about “who children are and who, if anyone, they belong to, if not to themselves”.
The sperm donor, in his application to have access to the child, said 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 judge was sympathetic, he pointed out that there was also a contract in place that the donor should honour.
While the man who donated sperm to the same-sex couple had played an active role in his son’s life up until now, the couple no longer wanted him in the child’s life.
The parties may not be identified, in order to safeguard the rights of the child, who is referred to as L.
The father and his mother (the child’s biological grandmother) want immediate contact with L, pending a later ruling on a more permanent arrangement.
Both the donor and his mother made allegations that the lesbian couple was failing in their parental roles. These included that the granny saw the child fall out of the car and that they were taking him to the pub where they often had drinks. They were also criticising his schooling.
But the judge frowned upon that, as it emerged the mothers visited a family restaurant and that the child fell out of the car in excitement when he saw his dog.
The matter raised important constitutional issues regarding the rights of children born by gamete donation as well as the adults involved.
The sperm donor said the mothers did allow him to see the child on occasions. When they lived on his plot, in a different house, he saw the child daily for about a year.
Judge Kollapen, however, said: “It is a far stretch to suggest that someone who, out of goodwill and gratitude, reaches out and is warm and inviting to another, must then carry the consequence that such conduct may trigger a rights claim on the part of the other.”
He said it was important to recognise that the application was not a contest between the parties. A starting point must be the recognition that the respondents were the child’s mothers.
He said the concept of mothering was determined by the quality and function thereof and was no longer determined by the gender of the parent and the proposed role that they were classified as in society.
“Ultimately, it must be about the environment of love and caring that is created for a growing child and not the sexual orientation of its parents.”
Judge Kollapen said the application must fail, not because the applicants were ill-suited in their commitment to L, but rather in recognition that the family the respondents had made for themselves in their relationship with their child was intimate and special and worthy of constitutional protection from outside interference.
Although the donor’s intentions were good, they were not in the best interest of the child, he said.
Pretoria News