Blood is thicker than water, but is it thicker than ink? An analysis of parenthood and sperm donor agreements in the wake of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

• Author: Shozi, B.
• DOI: https://doi.org/10.47348/SLR/2022/i3a9
• Published date: 27 October 2022
• Date: 27 October 2022
• Citation: (2022) 33 Stell LR 529
• Pages: 529-547

529

https://doi.org /10.47348/ SLR/2 022/i3 a9

BLOOD IS THICKER THAN WATER, BUT

IS IT THICKER THAN INK? AN ANALYSIS

OF PARENTHOOD AND SPERM DONOR

AGREEMENTS IN THE WAKE OF QG v CS

(32200/2020) 2021 ZAGPPHC 366 (17 JUNE

2021)

Bonginkosi Shozi

LLB LLM PhD

Postdoctoral Scholar, Institute for Practical Ethics, UC San Diego

Honorary Research Fellow, University of KwaZulu-Natal

Roasia Hazarilall

LLB

Masters candidate, University of KwaZulu-Natal

Donrich Thaldar

BLC LLB MPPS PGDip PhD

Professor, University of KwaZulu-Natal

Abstract

The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366

(17 June 2021) concerns a sperm donor who applied to the court for parental

responsibilities and rights in respect of a child conceived with his sperm. This

is despite the fact that he had concluded a written agreement with the child’s

legal parents before the child’s conception which stipulated, inter alia, that

he would have no such responsibilities and rights in respect of the child. The

ruling of the High Court in this case is a signicant development in South

African reproductive law, as the rst case that deals with the legal position of

a sperm donor with regard to a donor-conceived child.

The following important legal principles that were laid down in the case are

identied and analysed. First, there is no prohibition on a sperm donor or his

family members from approaching the court in terms of section 23 or 24 of the

Children’s Act 38 of 2005 to acquire parental responsibilities and rights in

respect of the donor-conceived child. However, if a sperm donor or his family

members bring an application in terms of section 23 or 24, they cannot rely

on their genetic link with the donor-conceived child. Secondly, sperm donor

agreements are in principle legal and enforceable, but the court is not bound

to enforce provisions dealing with parental responsibilities and rights if it is

of the opinion that such provisions are not in the best interests of the child.

A sperm donor agreement may, however, be informative regarding the parties’

intentions.

Criticism is expressed about the way in which the court dealt with the issues

of the locus standi of donors and the psychological evaluation of donors and

recipients where known donors are used.

(2022) 33 Stell LR 529

© Juta and Company (Pty) Ltd

https://doi.org /10.47348/ SLR/2 022/i3 a9

Keywords: Articial conception; sperm donor; parenthood, genetic-

relatedness; sperm donor agreement

1 Introduction

What does it mean to be a parent? From a biological perspective, a parent is

usually dened as an individual whose gametes contributed to the creation of

offspring.1 In social animals, including humans, biological parents also often

have a social function to full in rearing their biological offspring – perhaps

in the hopes of furthering their own bloodline. In human society, however,

it has long been the case that individuals can, and do, raise children that are

not biologically their own.2 As such, parenthood has come to be understood

as something which is not necessarily about furthering one’s own bloodline

but rather about fullling a particular social role in a child’s life.3 Many

people, such as the medically infertile and same-sex couples, cannot become

biological parents. However, they can become social parents by using assisted

reproductive technology and the gametes of others – so-called “gamete donors”.

This is a reality that the law has also awoken to in recent years.4 For this

reason, South Africa, like many countries, has enacted legislation that provides

for and protects the freedom of individuals to form families – even where the

individuals who full the role of parents in a child’s life do not share biological

ties with the child.5 Through judgments such as the recent case of Wilsnach

NO v M

6 (“Wilsnach”), our courts have made it clear that parenthood is about

more than just a biological link between a parent and a child in South African

law:

“[W]hile biological parenthood may well be the starting point of parenthood in all instances, the

role and place of a parent beyond birth becomes much more than simply a matter of biology. It often

happens that the biological parent ceases to play any further role in the life of the child as would be in

the case of adoption or a child born through an agreement of surrogacy or a child who was abandoned

and deserted.”7

However, in a seemingly conicting fashion, our law still sometimes

places great signicance on biological links. For instance, section 294 of the

Children’s Act 38 of 2005 prohibits persons from having a child by means of

surrogacy unless they can contribute at least one of the gametes to the in vitro

1 Colli n’s Dictionary “Biological par ent” (2019) Collin’s Dictionary

dictionar y/english/biological- parent> (accessed 17-08-2022); M Piet erse “In Loco Parent is: Third Party

Parenting R ights in South Af rica” (2000) 11 Stell LR 324 331

2 South A frican Law Co mmission Revi ew of Child Status Act Projec t 110 Discu ssion Paper (200 2)

175, 178 and 179 For examples of South Afr ican case law dealing with ge netically un related persons

suing for pare ntal responsi bilities and rig hts, see CM v NG 2012 4 SA 452 (WCC) and Du Plessis v

Vent er (4120/2020) 2021 ZAFSHC 25 (21 Januar y 2021) SAFLII /www safliiorg/za/cases/

ZAFSHC/2021/25 html> (accessed 17-08-2022)

3 Piete rse (2000) Stell LR 332 The author des cribes “socia l” or “psychological” pa renthood as pla cing

emphasis on the “ relationship betwee n child and adult (whether biolog ical ties are present or n ot) in the

context of the fam ily as a social unit ”

4 See D NeJa ime “The Nature of Pa renthood” (2017) 8 Yale LJ 2260

5 See th e National Health Act 61 of 2003 and the Regul ations Relating to the Ar tificial Fertilisat ion of

Persons GN R 175 in GG 35099 of 02-03-2012 that wer e issued in term s of s 68 of the Act

6 2021 3 SA 568 (GP)

7 Para 4 0

530 STELL LR 2022 3

© Juta and Company (Pty) Ltd