Judge: I cannot help you have a child

AN INFERTILE single man’s hopes to become a father were dashed when the court turned down his application in which he challenged sections of the Children’s Act that barred him from concluding a surrogacy agreement if his sperm was not used.

The Act requires that in order for a surrogacy agreement to be valid, there must be the use of the gametes of both commissioning parents, or if that is not possible, at least one of the parents.

The applicant, referred to as DW in the Pietermaritzburg High Court judgment, could father a child with a surrogate only if his sperm was used, the court ordered.

But DW said that was not possible as he was relying on sperm from donor 6293 of Fairfax Cryobank.

The court pointed out Section 294 of the Children’s Act was clear that “no surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of gametes of both commissioning parents”.

If that was not possible due to biological or medical or other valid reasons, the Act stipulated the gamete of at least one of the commissioning parents was needed.

DW said his case was different, as he intended to use sperm from a donor in the US. The donor had donated to a sperm bank and agreed his identity be revealed to the child once the child reached 18 years.

DW said the practice in America differed from that in South Africa, where sperm banks offered anonymous donors.

He relied on a Constitutional Court judgment where a want-to-be mother also challenged the legislation.

The Concourt turned down her application as it held the purpose of the sections of the Act was to establish a bond between the commissioning parent or parents through a genetic link, in order to protect the interests of the child to be born.

According to arguments on behalf of DW, the fact the child would one day know who his biological father was would safeguard the bond.

He said it did not matter that the child would not have a genetic bond with the commissioning parent (him in this case) as the child’s genetic link would, at the appropriate time, be revealed to him or her.

DW accepted Section 294 of the Act was not unconstitutional but argued the purpose of the Act – to safeguard the child by establishing a genetic link – was served if the child would one day know who donated the sperm that gave him or her life.

He said that under the circumstances, it did not matter that the child would not have a genetic link with the commissioning parent, because the child’s genetic origin would be made known one day to him or her.

Judge Andries Ploos van Amstel said “there is nothing that can be said in favour of such an interpretation”.

He added it “flies in the face of the wording of the section”, which required the gametes of both commissioning parents, or at least one where both was not possible.

He said even if he ruled in favour of DW, it would not be binding on others in the same circumstances, as the minister of social development was not added to this challenge to give an input.

Judge Ploos van Amstel said while he had to turn down this application, he had empathy with DW’s desire to have a child and he would have helped him if he could.