A Johannesburg man's attempt to avoid a claim for maintenance to support his twin children by asserting he had merely agreed to be a sperm donor for a lover has been rebuffed by the high court.
The lawyer, who is a senior counsel, had an on-off extramarital affair from 2002 with a woman with whom he had twins, a boy and a girl, in October 2021. He is their biological father, though they were conceived by her undergoing artificial fertilisation.
The married man also has one child with his wife and two older children.
Last year the mother of the twins went to maintenance court and asked for an increase in the allowance he paid towards the children's care because her work contract was not renewed. He responded by filing a case in the high court, saying he had a “gamete donor agreement” with her for use of his sperm to become pregnant during fertility treatment.
A maintenance claim, he said, was “contrary to their agreement” and he must “protect his rights”. He asked the court for a declaratory order that he not be considered as the children's father or a person holding parental responsibilities and rights for them as envisaged by the Children's Act.
He said he had agreed to assist her because of his care and affection for her “to allow her to fulfil her dearest wish”. He did not want and could not afford another child and his condition was clearly expressed to her, which she accepted and on which basis he donated his sperm, he said.
At a clinic, using an alias, he said he signed a standard “sperm donor consent” form. The document contemplated donation to an anonymous recipient and no contact by the donor or any of his family with any child which might be conceived.
“He does not have it or any copies,” acting judge Ceri von Ludwig noted in her judgment this month.
It is common cause that after the fertilisation process, the duo kept in touch in person and by WhatsApp messages, the judge said.
The mother of the twins has a substantially different version of their relationship. She said they had actively tried to conceive from 2010 and had also tried IVF in 2018, without mention of him being a gamete donor. In late 2020 they spoke about it again. This resulted in the January 2021 fertility process.
They “invested a lot of time and energy into bringing a child to this earth”, and she assured him “I was not using the child to trap him or break up his marriage”.
It was only after she asked for an increase in the 'stipend' he paid for the children, she said, that he 'played the sperm donor card'
He visited, supported and built a relationship with the children, who know him as their father. It was only after she asked for an increase in the “stipend” he paid for the children, she said, that he “played the sperm donor card”.
He countered by saying he “assisted her” since the twins' birth because he “cared for her”, not “imposing on himself” any financial obligation.
The “hand of friendship” should not be mistaken for a paternal role, he said.
The court went to the factual basics in the judgment, noting he fathered twins with a woman with whom he had an on-off but long-term romantic and intimate relationship. Because this was done by artificial fertilisation, it does not follow that he cannot be considered as having any responsibilities or rights towards the children.
The claim of a gamete donor agreement is disputed by the mother of the twins.
“Her version is not improbable and is far from a bald denial,” the judge found.
As a practising senior counsel, Von Ludwig said “the fact that he did not reduce his alleged agreement with her to a formal document cannot be ignored, specially in light of all the emotional messages exchanged between them over the years and at the particular time relevant to this 'transaction'.
“He has failed very simply at the first hurdle in that he has not shown to this court there is a gamete donor agreement.”
The judge was concerned about the potential prejudice towards the twins, saying the Children’s Act provides that in all child related matters the interests of the children are paramount.
His “sperm donor” application to the court would have “the effect of declaring these children do not have a father and deprive them of all the benefits attendant on such relationship”.
While laws provide for the protection of parties donating gametes [sperm or ova] to enable childless people to bear children without risk to the donors, the judge said “it is not there as an escape for biological fathers from their parental responsibilities”.
“The effect of the declaratory order which he seeks on the minor children, whose interests must be paramount, would be gravely prejudicial.
“The prejudice to [the mother] in carrying the entire financial burden for the children alone, specially in her financial predicament, albeit unforeseen by the two parties, is likewise severe.
“The 'prejudice' to him in having to comply with a duty to support children whom he participated in bringing into this world as a highly qualified, employed adult is negligible by comparison.”
His application was dismissed. He was ordered to pay the costs of her lawyers, with the judge saying she found it “distasteful” that he had tried to claim legal costs from her while seeking to put an end to her claim for maintenance.
TimesLIVE
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