KZN court dashes infertile man’s hopes of having child with help of surrogate mother, sperm donor

The KwaZulu-Natal High Court dismissed the application of a man hoping to have a child with the help of surrogate parents.

  • The man, who is single, is unable to produce his own reproductive cells.
  • As part of the application, the man asserted that he would make sure the child would know its “genetic origin”.
  • In South Africa, legislation only allows a surrogate agreement to be valid through the use of both parents or one parent’s reproductive cells.

A single infertile man’s hopes to have a child with the help of a surrogate mother and sperm donor were dashed when the KwaZulu-Natal High Court dismissed his application.

This comes after the man, who wanted to have a child through a surrogate mother, approached the High Court seeking a declaratory order regarding what was permissible in terms of Section 294 of the Children’s Act 38 of 2005, on the genetic origin of the child.

In South Africa, legislation only allowed a surrogate agreement to be valid through the use of both parents or one parent’s reproductive cells and the court therefore dismissed his application.

Judge Johan Ploos van Amstel said in the recent judgment: 

The application for a declaratory order, therefore, cannot succeed. 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.

According to court papers, the single man was unable to produce his own gamete (a reproductive cell) and as a result, sought an order that, for the purposes of his intended surrogate motherhood agreement, he could use a sperm donor.

“He seeks a further order declaring that the first order will relate ‘only to this one aspect of the applicant’s intended surrogate motherhood agreement, namely compliance with Section 294 of the Children’s Act… and that the applicant shall further be required to bring an application to the court to confirm the intended surrogate motherhood agreement’,” the papers stated.

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Section 294 of the Act, however, stipulated that no surrogate mother agreement was valid unless the conception of the child in the agreement was to be effected in three different scenarios: by the use “of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person”.

While the order sought by the applicant was inconsistent with the legislation, the applicant asserted that the said section, on a purposive interpretation, sought to ensure that the child would know its genetic origin.

The judgment read: 

He accordingly wants the court to declare that he is entitled to use sperm from a donor who lives in the United States of America and 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 South Africa where sperm banks only offer anonymous donors.”

The applicant made submissions regarding the proper interpretation of Section 294 of the Act. However, the court noted, among other things, that the said section did not have more than one possible meaning.

The court also found the submission that the words “the gamete of that person”, at the end of the section could mean either the gamete genetically derived from the single commissioning parent or a gamete owned by or in control of the single commissioning parent, was without merit.

“It follows that I do not agree with either of the interpretations contended for by the applicant,” Ploos van Amstel said.

As a result, the application was dismissed.

Read the full judgment here.

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