A sperm donor has failed in his bid to have contact with the child he ‘fathered’. This is the effect of a ruling by Gauteng High Court (Pretoria) Judge Jody Kollapen in an unusual battle in which the donor and his mother sought visitation rights for the now five-year-old child.

The application was dismissed with costs, notes a Sunday Times Daily report by legal writer Tania Broughton.

The application was strongly opposed by the child’s parents, a same-sex couple who underwent artificial insemination to enable one of them to conceive. The judge said while the applicant, whom he referred to as QG, and his biological grandmother may well love and feel a strong bond with the child, that did not give them the right to interfere in ‘the little special place (the respondents) have created for themselves’.

‘While it may appear to be harsh, that is ultimately what is needed to respect and protect the intention and choice of the respondents in constituting their family.’

The applicant, an interior decorator, brought the application in two parts. The first, which was dealt with by Kollapen, was for visitation rights. The second will be launched after a still-to-be-held inquiry by the Family Advocate. In that, QG wants rights of contact and care and joint guardianship.

In his application QG did not rely on a ‘biological right’, but on the bond. This is because SA law is clear that sperm donors do not have any rights.

‘This legal certainty is essential for sustaining the artificial reproductive system in SA. If this is compromised, donors would not be willing to donate, recipients would not be willing to accept donations and infertility would become an unsolvable burden,’ Kollapen said.

The judge said it was clear when the agreement was reached, no role was envisaged for the applicant in the child’s life, says the Sunday Times Daily report.

'They say, and this is not unreasonable, that out of a sense of gratitude they allowed him to have some limited contact with the child, but they did not open the door to the kind of rights he now seeks,' notes Kollapen.

'It must be so that a family is often about intimate space and special bonds. While that space may be open to scrutiny when it involves the best-interests-of-the-child principal, it is also a space that requires protection and insulation from undue outside influence. 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 consequences that such conduct may trigger a rights claim on the part of the other. This is not tenable and were it allowed it would have a chilling effect on ordinary human relations,’ the judge said.

Regarding QG’s claim that the child needed a father figure, Kollapen said the focus should be the environment of love and caring created for the child, not the sexual orientation of its parents.

Full Sunday Times Daily report