BR v LS 2018(5) SA 308 (KZD)

The case of BR v LS 2018(5) SA 308 (KZD) dealt with the issue of whether a Biological father of a 2 year old child who had been conceived through the natural insemination of the mother satisfied the requirements set out in Section 21 of the Children’s Act 38of 2005 for the conferring of Parental Responsibilities and Rights upon him or whether the father was merely a Known Sperm Donor and as such had no legal right to the child.

BR v LS : THE FACTS OF THE CASE

In BR v LS, The Applicant (father) and the Respondent (Mother) had been in a romantic relationship for an approximate period of 18(eighteen) months. Two years after the breakdown of the relationship, the Respondent approached the Applicant requesting that he father her child through natural insemination but with no obligations from his side to co-parent the child or assist with any financial obligations to the child. The Respondent contended that it was envisaged that the Applicant’s status was that of a Known Sperm Donor and not that of a parent as envisaged by Section 21 of the Children’s Act. The Applicant on the other hand contended that he qualified ex lege as a parent of the child in terms of the provisions of the Children’s Act.

The undisputed facts of the matter were that:

The Applicant contributed towards some of the medical costs of the pregnancy and the lying-in expenses of the Respondent, he attended antenatal class with the Respondent, put forward his suggested names for the child, was reflected on the child’s birth certificate as the father of the child and he was permitted contact with the child. When the child was six months of age, and during a time of heightened tension between the parties, the Applicant suggested to the Respondent that a Parenting Plan should be concluded between them. The Respondent’s response hereto being “Please go ahead and get the Parenting Plan in place, seeing that you feel that it is important right now. When I know how often you are supposed to visit and when and hours appropriate from an expert, that would be a starting point for us to plan your next visit.”

Notwithstanding the above, the Respondent’s position was that the normal sequelae of parenthood should not follow in the Applicant’s favour given that the starting point at the time of the child’s conception, was that the Applicant’s status was that of a Known Sperm Donor with his having no rights to the child, save for any concession that she could from time to time confer upon him viz the child. The Respondent further contended that a Known Sperm Donor arrangement was a common type of agreement and consistent with her constitutional right to dignity and to choose single motherhood as her chosen family structure.

During argument, the Applicant stated that the Children’s Act does not recognize Known Sperm Donor agreements and that as such it had no validity in our Law.

BR v LS : THE COURT FINDINGS

The Court held that it was not persuaded that a Known Sperm Donor Agreement was not valid but that as it did not have the benefit of detailed argument on the lawfulness of such agreement, for purposes of the present enquiry, it would, without specifically deciding on the issue, assume in favour of the Respondent viz the validity of such agreements. The Judge noted obiter that legal recognition of a Known Sperm Donor Agreement may well be contra bonos mores (against public policy)

Regarding the requirements set out in Section 21 of the Children’s Act, the Court held that it was satisfied that the Applicant satisfied the level of commitment required by Section 21 of the Act for the conferring of Parental responsibilities and rights upon him in respect of the child.

The Court questioned why the Respondent at the time of tension developing between the Applicant and Respondent in respect of the Applicant’s legal rights over the child, would even consider a Parenting Plan if the Applicant was not to be considered a parent. Further, that the Known Sperm Donor Agreement which the Respondent had sent through to the Applicant for his consideration was only sent to him after the birth of the child. (The draft agreement was never signed by the Applicant).

The Court held that the Respondent had not discharged the onus on her to prove the Known Sperm Donor Agreement or to disprove the Applicant’s contention that there was no agreement entered into between them varying the normal legal consequences which would flow from the application of the provisions of the Children’s Act. The Applicant accordingly acquired full Parental Responsibilities and Rights over the child in terms of Section 21 of the Children’s Act.

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