Sperm saga at heart of battle over a baby boy
Mother and father take donor dispute to the high court
DOES your sperm entitle you to be a daddy?
That’s the question at the heart of a battle in the High Court in Durban between two people over the parental rights of their 23-month-old son.
The couple split in 2012 but rekindled a sexual relationship in June 2014 when the mother asked her former lover to be the father of her baby.
She told him that she didn’t like the idea of using an unknown sperm donor and wanted her child to know the identity of the biological father. The mother, a marketing co-ordinator from Morningside, said there would be no obligations on the father and that he could have a relationship with the child.
After considering the proposal, the father agreed. The man, from Durban North, was 41 at the time and said he realised “this may be my only opportunity to become a father”.
About six weeks later, on July 31 2014, a home pregnancy test confirmed that the woman was expecting.
As the pregnancy progressed and after the baby’s birth, relations soured between the two. The mother threatened to forbid the father from being present at the birth and to exclude the father’s name from the baby’s birth certificate.
Despite the threats, the father was present when the boy was born on March 12 2015 and his details were included on the birth certificate.
Tension in the relationship continued and in July that year an e-mail war broke out over the mother’s request for a passport for the child. The father claimed the mother was using “visitation rights as currency” despite his attempts to seek mediation over co-parenting rights.
This prompted the father to go to court in November 2015 and ask for scheduled contact with the child. He asked the court to grant him, or his own mother, permission to fetch and drop off the child at its home and for the mother and father of the child to share full parental responsibilities.
He was granted visiting rights pending the finalisation of the court order. The mother opposed the ruling on the grounds that the father didn’t acknowledge his parental rights in the initial stages of the pregnancy. She also claimed that a spermdonor agreement had been in place and as such the father was not entitled to parental rights. The case was set down for argument in May.
In his papers, the father said there was no sperm-donor agreement. He said he had made an informed decision to be actively involved in the child’s life, and be recognised as his father.
He said he approached a family advocate to mediate but this was unsuccessful. The mother then sent him a known donor agreement, a contract which waives rights and responsibilities of the biological father. He rejected it.
“I’m only going to dignify the sperm-donor thing with this response,” he said in an affidavit. “Had you actually asked me to agree to these terms and signed a donor agreement before he was born, we would not have a child today because I would never have agreed.”
In an opposing affidavit the mother said she had conceived the child under the impression that she would hold full parental rights and responsibilities to the child. The mother said the father’s court application was “out of the ordinary, unreasonable in the circumstance and not in the child’s best interests”.
She said there should be an order awarding her sole guardianship.
The court ordered that the family advocate investigate the case and compile a report with recommendations.
According to a family advocate report, family counsellor Anusha Sewcharan recommended the mother and father be declared co-holders of parental responsibilities and rights, that the child stay with the mother and that the father be entitled to phase in contact with his son.
Professor Ann Skelton, director for the Centre for Child Law at the University of Pretoria, said the court would make its decision based on the best interests of the child.