Would-be single dad’s dream blocked in court
I empathise with the applicant’s desire to have a child, and would have helped him if I thought I could. Regrettably, I do not think I can.
Judge Johan Ploos van Amstel, a father of five
When you’re a single man who desperately wants a child of your own, a surrogate mother is the obvious answer.
But a KwaZulu-Natal man in this position is also infertile, so he turned to a US sperm bank, Fairfax Cryobank, to find a father for his child. There, he settled on an accountant with a dimpled chin, blue eyes and tousled brown hair as his first choice.
Then he faced his biggest problem: a stipulation in the Children’s Act that a single man can father a child with a surrogate only if his own sperm is used.
The man — a lawyer identified as DW — provided his own interpretation of the law to the high court in Pietermaritzburg and asked it to give him the goahead. Instead, in a judgment last week, it ended his dream.
“I empathise with the applicant’s desire to have a child, and would have helped him if I thought I could,” said judge Johan Ploos van Amstel, himself a father of five. “Regrettably, I do not think I can.”
The would-be father argued that a “purposive interpretation” of the law “seeks to ensure that the child will in due course know its genetic origin”, said Ploos van Amstel.
“He accordingly wants the court to declare that he is entitled to use sperm from a donor ... who has agreed to his identity being disclosed to the child when it reaches 18 years of age. The applicant says this differs from the practice in SA, where sperm banks only offer anonymous donors.
“He submitted that in those circumstances it does not matter that the child will not have a genetic link with the commissioning parent, because the child’s genetic origin can be made known to it at the appropriate time.
“The applicant accepts that such an interpretation is contrary to the express wording of the section.”
DW referred to a 2017 Constitutional Court judgment that said the surrogacy law’s “rational purpose” was to “create a bond between the child and the commissioning parent or parents, which is designed to protect the best interests of the child to be born so that it has a genetic link with its parent(s).”
Ploos van Amstel, however, said the wording of the law was clear: “No surrogate agreement is valid unless the conception of the child ... is to be effected, where the commissioning parent is a single person, by the gamete (sperm or egg) of that person. The wording is not capable of another possible meaning.”
Reacting to the judgment, DW told the Sunday Times: “The genetic link requirement for surrogacy is a cruel piece of legislation. It shatters infertile people’s dreams of parenthood. It is unbelievable that such a provision can still be part of our law.”
The judgment means Fairfax Cryobank’s donor 6293, described as fun-loving and charming, even though he is an accountant, will not earn the $700$1,200 (R10,000-R17,500) he would have received from the lawyer.
The sperm bank has 450 donors and says its screening eliminates 199 in every 200 applicants.
Donor 6293 made it through but a genetic test accessible to would-be buyers of his sperm says he is a carrier for cystic fibrosis, which damages the lungs and digestive system, and Smith-Lemli-Opitz Syndrome, a developmental disorder characterised by distinctive facial features, small head size (microcephaly), intellectual disability or learning problems, and behavioural problems.
On the plus side, he has degrees in business and accounting, collects first editions of his favourite comic book series and owns several boats.
“Athletic and passionate, this donor has an affinity for hiking and basketball,” according to Fairfax Cryobank.
“The staff finds this donor undeniably charming and easy to get along with. Very attractive, he has a toned physique and muscular legs due to his daily morning runs with his two dogs.
“He has fair skin with rosy, pink cheeks and sapphire blue eyes. His thick, dark-brown, curly hair is always perfectly tousled and styled to match his laidback personality.
“He has a strong, narrow jawline that creates a dimple on his chin when he smiles while talking about his latest hiking adventures.”
In addition to the hyperbole, the sperm bank describes the donor’s background as “Cherokee-German/English” and reports that his parents and siblings are healthy.
His star sign is Capricorn, he is 1.77m tall and weighs 68kg. A childhood photo is free to download, and for $37 would-be customers can listen to an interview with him. Another $95 buys a set of photos showing him throughout his life and a full personal profile costs $26.
Information about the donor that is available for free includes revelations that he has three tattoos and a pierced left ear. He has broken a rib, foot and arm in sporting mishaps, and he had a hernia repaired when he was four.
He has one current sexual partner, drinks beer and wine but does not smoke, and has no allergies.