02/11/2018
Whether a ‘known s***m donor agreement’ is valid in South Africa: The facts in BR v LS 2018 (5) SA 308 (KZD) concerned a boy, ES, who was born on 12 March 2015, after having been naturally conceived by the applicant (the father) and the respondent (the mother). The couple, never married, had in June 2014 revived an earlier relationship after the father agreed to the mother’s request to impregnate her via natural insemination. By July 2014 the mother was pregnant. The father had, inter alia, accompanied her on visits to obstetricians, attended pre-natal classes with her, and had paid certain expenses in respect of the pregnancy. But when the father told her he wanted to take on parental responsibilities, she objected. The relationship remained under strain, and in September 2015 the mother, having obtained legal advice, sent the father an e-mail in which she raised the notion of a ‘known s***m donor agreement’, pointing out that it was more ‘appropriate’ than the parenting plan suggested by the father. The father did not sign the agreement and in November 2015 he applied for an order granting him scheduled contact and assigning him the full rights and obligations of unmarried fathers set out in s 21(1)(b) of the Children’s Act 38 of 2005.
The court granted an interim order and referred the following questions for oral evidence:
◦whether the father met the requirements of s 21(1)(b);
◦whether the parties had concluded a ‘known s***m donor agreement’; and
◦whether it was in the best interest of ES for the father to be assigned rights of contact.
While the father stated that the agreement between him and the mother was that he could choose his level of involvement in ES’s life, the mother argued that the alleged ‘known s***m donor agreement’ meant that the usual consequences of biological fatherhood in s 21(1)(b) did not apply. She acknowledged that such agreements were not recognised by the Act and would be novel in South African law, but contended that they were increasingly common and that their recognition would be consistent with mothers’ rights to dignity and sexual preference.
Koen J held that the ‘known s***m donor agreement’ contended for by the mother was an innominate contract, the terms of which she had to establish on a preponderance of probabilities. The recognition of such agreements, which were not necessarily invalid, was a novel issue, which required the benefit of detailed argument. Any such inquiry would have to consider the best interest of the child and whether recognition might be contra bonos mores.
The court assumed – without deciding – that a ‘known s***m donor agreement’ could be validly concluded in South Africa to vary the rights and responsibilities the Act awarded to biological fathers. In the present case, however, the father had satisfied the level of commitment required by the Act to confer on him the rights and responsibilities mentioned in s 21. The mother’s conduct was consistent with the father’s view that he could elect to involve himself in ES’s life, and the fact that a parenting plan was even considered also pointed in this direction. Since the mother failed to prove, on a balance, the agreement alleged by her or to contradict the father’s more probable version that there had been no variation of the normal consequences of biological fatherhood, the father was entitled to an order declaring that he had acquired full parental rights and responsibilities under s 21.
No costs order was made.
Source: De Rebus Newsletter - November 2018
