LAW ON SPERM DONATION: WHAT RIGHTS DO SPERM DONORS HAVE?
DEFINITION UNDER THE CHILDREN’S ACT 38 OF 2005
Section 1 of the Children’s Act 38 of 2005 states that the definition of “parent” does not extend to any person who is merely a gamete (sperm) donor for artificial fertilization purposes.
SECTIONS 40 AND 41 OF THE CHILDREN’S ACT 38 OF 2005
No right, responsibility, duty, or obligation arises between a child born of a woman as a result of artificial fertilization and any person (sperm donor) whose gamete has or gametes have been used for such artificial fertilization or the blood relations of that person, except when
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband of such woman at the time of such artificial fertilization.
Section 41 of the Children’s Act provides among other things that a child born as a result of artificial fertilization is entitled to have access upon reaching the age of 18 to any medical information and other information concerning that child’s genetic parents (in other words to certain details pertaining to the sperm donor) but that the child may not receive any information that reveals the identity of the person (sperm donor) whose gamete was or gametes were used for such artificial fertilization.
SECTION 26 OF THE CHILDREN’S ACT
In terms of Section 26 of the Children’s Act, a father who is a gamete (sperm) donor for artificial fertilization purposes may not apply to be identified in terms of the Births and Deaths Registration Act as the father of the child nor may he apply to Court for an Order confirming his paternity over the child. In a nutshell, he is not entitled to any rights to the child.
REGULATIONS RELATING TO THE ARTIFICIAL FERTILIZATION OF PERSONS
In terms of the Regulations Relating to the Artificial Fertilization of Persons (2016) a “gamete donor” refers to a living person from whose body a gamete or gametes are removed or withdrawn, for the purpose of artificial fertilization. Regulation 19 thereof provides that no person may disclose the identity of any person who donated a gamete or received a gamete, or any matter related to the artificial fertilization of such gametes, or reproduction resulting from such artificial fertilization except where a law provides otherwise or a Court so orders.
SOUTH AFRICAN LAW ON SPERM DONATION
It is clear from the foregoing that as a general rule a Sperm Donor acquires no rights or responsibilities of parentage over a child born of his donated sperm. The current Law on Sperm Donation is however being steadily challenged both by the recent case of BR V LS 2018(5) SA 308 (KZD) as well as the 2017 investigation by the South African Law Reform Commission under Project 140 aptly entitled “The Right to Know One’s Biological Origins”.