Introduction
In A.V and Another v D.C and Others (40522/19) [2024] ZAGPJHC 626 (26 June 2024), the applicants, AV and NZ, and the first respondent, DC, initially believed that certain sections of the Children’s Act 38 of 2005 were constitutionally deficient. AV and NZ specifically challenged Section 40, while DC raised issues with Sections 1, 25, 26, and 40. However, subsequent to their applications, the Constitutional Court addressed the concerns raised by AV and NZ in the case of VJV and Another v Minister of Social Development and Another 2023 (6) SA 87 (CC). As a result, AV and NZ no longer pursued their constitutional challenge, and DC also withdrew his.
History of the Matter
AV and NZ, a lesbian couple, began their romantic relationship in 2017. AV, intent on becoming a mother, enlisted NZ’s support to raise a child together. They chose to seek a known sperm donor to ensure the child would be aware of their heritage. After an extensive search on platforms like ‘co-parentmatch.com’, they found DC, a gay man who met their ethnic requirements. DC’s profile clearly stated his desire for co-parenting, which AV and NZ contested from the outset, insisting that they did not wish to share parental responsibilities.
The initial online interactions led to a personal meeting where AV asked DC if he would donate sperm without becoming actively involved in raising the child. Despite DC’s profile indicating an interest in co-parenting, AV claimed they made their intentions clear during their first meeting. However, DC maintained that an agreement to co-parent was reached before October 2017, a claim vehemently denied by AV and NZ.
The couple moved in together in February 2018, and after several unsuccessful attempts at artificial fertilisation, AV became pregnant in June 2018. DC was informed and participated in some of the prenatal activities, including choosing part of the child’s name and contributing to the purchase of baby items.
The child, Z, was born on 24 March 2019. DC was involved during the early days, including being listed as Z’s father on the birth certificate, which required his consent for travel documents. This setup caused considerable tension, especially when AV and NZ sought to travel to country B, necessitating DC’s consent.
DC’s increasing involvement, including sharing photos of Z on social media and portraying an image of a nuclear family, alarmed AV and NZ. This culminated in disputes over travel permissions and DC’s parental rights. By October 2019, AV allowed DC limited contact, but following a disagreement over a parenting plan and travel consent, DC’s access to Z ceased by mid-October 2019.
An urgent court application in November 2019 resolved the immediate travel dispute, with the Family Advocate tasked to investigate Z’s circumstances. The Family Advocate’s report, filed in February 2020, played a crucial role in the ongoing legal proceedings. The history of interactions and legal steps, including the final meeting at the consulate in July 2020 where DC granted travel consent, set the stage for the complex custody battle adjudicated in this case.
The Manner by Which the Artificial Insemination Was Undertaken
The manner by which the artificial insemination was undertaken became a pivotal issue. The Minister of Health has established regulations governing the artificial fertilisation of a person, which are designed to ensure a tightly regulated process. These regulations were intended to be followed meticulously to maintain legal and medical standards.
The regulations stipulate that only a qualified medical practitioner specialising in gynaecology or a medical professional with specific training in reproductive medicine and related laboratory procedures is authorised to perform the removal or withdrawal of gametes for the purpose of artificial fertilisation. Regulation 7 details comprehensive prerequisites for this process, including the creation of a gamete donor file, submission of information to a central data bank, verification of donor history, obtaining informed consent, and conducting medical tests for sexually transmissible diseases.
Contrary to these prescribed procedures, the parties in this case opted for a self-help approach. The artificial fertilisation was carried out at AV’s home, where she resided alone at the time. The procedure was conducted by NZ, who, despite being a qualified nurse, lacked the competency to legally perform artificial fertilisation. More critically, none of the stringent requirements set out in Regulation 7 were adhered to. This deviation from the established legal framework resulted in a process that was not only medically unsanctioned but also legally non-compliant.
The court highlighted the total disregard for the law exhibited by the parties. The self-help route they chose ignored the necessary medical and legal safeguards designed to protect all involved parties and ensure the legitimacy of the artificial fertilisation process. Vally J pointed out that had the parties followed the legal protocols, many of the subsequent problems and disputes that led to this litigation might have been anticipated and avoided. The court’s critical analysis of the artificial insemination procedure underscores the importance of adhering to regulated medical practices to prevent legal complications and ensure the welfare of all parties involved, particularly the child.
The Family Advocate’s Report
The Family Advocate’s report played a crucial role in the court’s. Despite being prepared under a time constraint, the report provided invaluable insights into the complex dynamics between AV, NZ, and DC, especially regarding parental rights and responsibilities.
The Family Advocate recognized that DC had no formal rights and responsibilities under Section 40 of the Children’s Act. However, the report noted that DC demonstrated a legitimate interest in the care and well-being of Z, which went beyond that of a typical sperm donor as envisaged in Section 40(3) of the Act. The report concluded that DC’s commitment and the actions of AV and NZ suggested that his interest in Z was far more pronounced. If the provisions of Section 21 of the Act, which pertain to the rights of unmarried fathers, were applicable, DC would have met the requirements long ago, as he had been acting like a reasonable unmarried father.
Based on these findings, the Family Advocate recommended that all parties—AV, NZ, and DC—retain full parental rights and responsibilities as outlined in Section 18 of the Act. The primary residence of Z was to be with AV and NZ, but DC was to be granted two hours of contact on either a Saturday or Sunday under the supervision of AV or NZ at a neutral venue until a detailed parenting plan could be agreed upon or imposed by the court. Additionally, AV was to be allowed to travel with Z outside of the country for no longer than 30 days in any given year without needing to secure DC’s consent.
Permanent Life Partnership Agreement of AV and NZ
Shortly after the Family Advocate issued his report, AV and NZ formalised their relationship through a notarially executed life partnership agreement on 21 February 2020. The agreement outlined their commitment to each other, the absence of community property, and their shared responsibilities for household expenses, emphasizing their intent to act with good faith and fair dealing.
DC criticised this agreement, suggesting it was orchestrated to frustrate the co-parenting arrangement he believed had been agreed upon with AV and NZ’s knowledge and consent. Despite DC’s scepticism, the agreement’s validity was not legally challenged, and thus, its legal consequences had to be respected.
The Relief Sought by AV and NZ and the Counter-Relief Sought by DC
Initially, AV and NZ sought several specific forms of relief, including a declarator that DC was merely a sperm donor as per Section 40 of the Act, the removal of DC’s surname from Z’s birth certificate, limited contact rights for DC, and a declaration that DC had no maintenance or decision-making obligations regarding Z. This relief was aligned with an agreement AV claimed to have reached with DC after their second mediation meeting.
Subsequently, AV and NZ amended their notice of motion to seek different relief, excluding the contact rights initially proposed. They continued to seek a declaration under Section 40(3) of the Act, which states that no rights, responsibilities, duties, or obligations arise between a child born from artificial fertilisation and the sperm donor or his relatives. If granted, this would sever DC’s legal relationship with Z entirely.
DC, aggrieved by the prospect of losing contact with Z, initially sought to have various sections of the Act declared unconstitutional. He later abandoned this challenge and instead sought parental rights and responsibilities under Section 18 of the Act, asserting that this was consistent with the agreement he believed had been reached with AV and NZ’s consent.
VJV and Another v Minister of Social Development and Another 2023 (6) SA 87 (CC)
The Constitutional Court (CC) addressed the concerns raised by AV and NZ in VJV and Another v Minister of Social Development and Another 2023 (6) SA 87 (CC). In this case, the CC declared Section 40 of the Children’s Act 38 of 2005 constitutionally invalid. The court found that Section 40 unfairly and unjustifiably discriminated on the basis of marital status and sexual orientation by excluding the words ‘permanent life partner’ after the words ‘spouse’ and ‘husband’ wherever they appeared in the section. The declaration of invalidity was suspended for 24 months, during which time Section 40 would read with the inclusion of ‘permanent life partner.’
The relevant amended parts of Section 40 now state: ‘(1) (a) Whenever the gamete or gametes of any person other than a married person or his or her spouse or permanent life partner have been used with the consent of both such spouses or permanent life partners for the artificial fertilisation of one spouse or one permanent life partner, any child born of that spouse or permanent life partner as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses or permanent life partners as if the gamete or gametes of those spouses or permanent life partners had been used for such artificial fertilisation. (3) Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when— (b) that person was the husband or permanent life partner of such woman at the time of such artificial fertilisation. (5) In respect of the period 1 July 2007 until the date of this order, the following shall be the position: (a) The reading in provided for in paragraph 4 above will not apply to persons who were permanent life partners at the time of the artificial fertilisation unless they invoke the benefit of this order by a written declaration signed by both of them. In such event the provisions of section 40(1)(a) as read in will apply.’
The impact of this decision is that AV and NZ, if they chose to invoke the benefits of this ruling, would legally qualify as co-parents of Z. They have elected to do so, and thus the law now recognises both as Z’s parents, conferring upon them all the rights and responsibilities set out in Section 18 of the Act. This includes the rights and duties concerning the care, contact, guardianship, and maintenance of Z.
Section 21 of the Act
In A.V and Another v D.C and Others (40522/19) [2024] ZAGPJHC 626 (26 June 2024), DC submitted that he should acquire full parental rights and responsibilities under Section 21 of the Children’s Act 38 of 2005 in respect of Z. He argued that the facts of the case supported his claim. Section 21 allows a “biological father,” who does not have parental rights and responsibilities because he is not married to the mother, to acquire such rights if he consents to be identified as the child’s father and contributes or attempts in good faith to contribute to the child’s upbringing and maintenance for a reasonable period.
AV and NZ contested this claim, citing Section 40(3) of the Act, which excludes a gamete donor from being considered a parent. They argued that the definition of “parent” in Section 1 of the Act specifically excludes individuals who are biologically related to a child solely by virtue of being a gamete donor for artificial fertilisation. Therefore, they contended, the term “father” in Section 21 does not apply to someone who is only a gamete donor.
The court found that while DC is the “biological father” as contemplated in Section 21, he is not a “parent” as defined in Section 1 of the Act. Allowing him to claim parental rights under Section 21 would effectively negate his non-qualification as a parent per Section 1, rewriting the definition of “parent” and removing the disqualification imposed by Section 40(3). Consequently, his genetic link to Z is irrelevant under Section 40 when read with the definition of “parent” in Section 1. In essence, DC may be a biological father, but he cannot become a legal parent under the Act.
Pathways to Rights of Contact and Care
The court outlined alternative routes for DC to gain contact and care rights without declaring the disqualifying sections unconstitutional:
Agreement with AV and NZ: DC could obtain contact and care rights through an agreement with AV and NZ. Although the court found no co-parenting agreement had been concluded, it acknowledged that an agreement regarding limited contact and care existed. This agreement included DC having limited contact with Z, paying half her school fees, and registering her as a dependent on his medical aid. The key question was whether this agreement served Z’s best interests, a matter explored further in the judgment.
Court Application: DC could apply to a court for the assignment of contact and care rights under Section 23(1) of the Act. This section allows any person with an interest in the child’s care, well-being, or development to apply for such an order. The court must consider factors outlined in Section 23(2), including the best interests of the child, the relationship between the applicant and the child, the applicant’s commitment, financial contributions, and any other relevant factors.
The Best Interests of the Child
Section 28(2) of the Constitution of the Republic of South Africa, Act 108 of 1996, stipulates that a child’s best interests are paramount in all matters concerning the child. The court reiterated the profound responsibility of determining a child’s best interests, noting that this often involves choosing between competing and compelling visions of what best serves the child’s needs.
The court emphasised that parents embroiled in conflict often conflate their personal interests with those of the child, but the court must remain focused on the child’s best interests. This involves protecting the child’s physical, psychological, and emotional safety, security, and well-being.
Z, now five years old, has had no contact with DC since October 2019. AV and NZ argued that reintroducing DC would disrupt Z’s life and not be in her best interests. The court, however, found that DC’s lack of contact was due to AV and NZ’s actions, not his conduct or lack of effort. The court deemed DC’s conditional withdrawal of travel consent inappropriate and contrary to Z’s best interests, yet not sufficient to warrant removing him from Z’s life altogether.
The court concluded that DC had shown genuine commitment towards Z, both emotionally and financially, and removing him entirely from her life would not be in her best interests. Despite the issues raised by AV and NZ, the court held that contact between DC and Z should be restored. This decision aligns with the original notice of motion filed by AV and NZ, advocating for gradual contact to minimise disruption to Z’s life. Thus, DC was awarded the privilege of contributing to Z’s care and maintaining contact with her, in a manner that prioritises her best interests.
Medical Aid
Since the litigation began, the inclusion of Z on DC’s medical aid has been a contentious issue between the parties. AV and NZ requested that DC de-register Z from his medical aid so she could be registered on AV’s superior medical aid plan. DC refused, citing concerns that Z might end up without medical cover. He stated he would agree to de-register Z if AV could demonstrate that her medical aid would indeed accommodate Z. As DC had no fundamental objection to de-registering Z provided her coverage was ensured, the court ruled in favour of AV and NZ’s request. Alternatively, the court suggested that DC could upgrade Z’s cover on his medical aid plan to match AV’s superior coverage. As there were no submissions on this alternative, the court left it to the parties to amicably resolve the issue, crafting the order to allow for self-resolution.
Maintenance Payments for Z
The court noted a lack of detailed evidence regarding Z’s physical and mental health, her living conditions, and the financial circumstances of AV, NZ, and DC. Consequently, the court found it challenging to issue a comprehensive order addressing all of Z’s present and future interests. To ensure Z’s best interests are continually met, the court proposed an order allowing for re-evaluation within six months to a year. The court emphasised the need for swift determination of Z’s future to minimise harm from delays and encouraged the parties to avoid protracted litigation, which would strain financial resources and emotional strengths, ultimately detracting from Z’s well-being. The court expressed hope that future maintenance arrangements for Z would be finalized cooperatively by AV, NZ, and DC, without further rancour.
The Name of DC on Z’s Birth Certificate
AV and NZ sought an order to remove DC’s name from Z’s birth certificate and replace it with NZ’s name. The rationale was to relieve AV from needing DC’s consent for international travel and passport renewals for Z. The court deemed it sufficient to declare that AV does not require DC’s consent for temporary international travel with Z. If this measure fails to prevent DC from vetoing travel plans, a court could interdict him from refusing consent where required. The court found no evidence suggesting that having DC’s name on Z’s birth certificate was contrary to Z’s best interests. On the contrary, the double-barrelled surname reflecting DC’s and AV’s identities was deemed crucial to Z’s sense of identity. Therefore, the court refused the request to remove DC’s name from Z’s birth certificate.
Guardianship of Z
AV and NZ were recognised as having full parental rights and responsibilities for Z, including guardianship rights under Section 18(2) of the Children’s Act. DC sought similar rights, but the court found no evidence that granting him guardianship would be in Z’s best interests. Given the current animosity between DC and AV/NZ, granting such rights was deemed perilous. The court noted that DC was not being awarded co-parental rights and responsibilities under Section 18 but rather contact and care rights under Section 23. Assigning guardianship rights amidst the prevailing animosity was considered too risky for Z’s welfare.
Order
The court issued the following orders:
Child Recognition:
Z shall be regarded as the child of AV and NZ under Section 40 of the Children’s Act.
Parental Rights and Responsibilities:
AV and NZ have full parental rights and responsibilities for Z.
DC is recognised as a gamete donor under Section 40 of the Act.
AV does not require DC’s consent for temporary international travel with Z. If necessary, DC must grant his consent for such travel and for the renewal of Z’s passport.
Contact Rights:
Until Z turns six, DC will have contact with Z on the first Tuesday of every month from 17h00 to 19h00 at AV and NZ’s residence. This contact is forfeited during vacations, and AV and NZ must inform DC in advance of travel plans.
Once Z turns six, the Tuesday contact will cease, and DC will have contact on the second Saturday of each month for four hours at an agreed venue. This contact is also forfeited during vacations, with prior notice required.
DC will have contact with Z every Father’s Day for four hours, arranged with AV and NZ.
Maintenance:
The matter is referred to the Maintenance Court to determine DC’s maintenance contributions for Z’s living and travel expenses.
Medical Aid:
DC must either upgrade Z’s medical aid cover to match AV’s plan or de-register Z from his plan, allowing AV to enroll Z as a dependent on her medical aid.
Costs:
No order as to costs.
These orders reflect a balanced approach, prioritizing Z’s best interests while addressing the parties’ concerns and maintaining legal compliance.
Questions and Answers
What was the main constitutional issue raised by the applicants (AV and NZ)? The applicants (AV and NZ) contended that Section 40 of the Children’s Act 38 of 2005 was constitutionally deficient as it discriminated against permanent life partners by excluding them from the definition of parents.
How did the Constitutional Court address the issue raised by AV and NZ? The Constitutional Court declared Section 40 of the Children’s Act constitutionally invalid and read in the words “permanent life partner” wherever the words “spouse” or “husband” appeared in the section, as per the case VJV.
What was the agreement between AV, NZ, and DC regarding the child’s upbringing? The agreement initially was that DC would donate his sperm, would be known to the child, and would have occasional contact. However, DC later claimed a co-parenting role which was contested by AV and NZ.
On what basis did DC claim full parental rights under Section 21 of the Children’s Act? DC claimed full parental rights under Section 21 by asserting he was a biological father who had contributed to the child’s upbringing and maintenance, thus meeting the criteria outlined in the section.
How did the court interpret the applicability of Section 21 in this case? The court found that Section 21 was not applicable to DC as he was disqualified from being a parent under Section 40(3) of the Children’s Act, which excludes gamete donors from acquiring parental rights.
What was the significance of the Family Advocate’s report in this case? The Family Advocate’s report concluded that DC had a legitimate interest in the child’s welfare and recommended that DC be granted contact rights and responsibilities, recognizing his involvement beyond that of a mere sperm donor.
How did AV and NZ’s relationship and actions influence the court’s decision? AV and NZ’s actions, including their agreement to allow DC to have limited contact and contribute financially, demonstrated that DC was more than a sperm donor, which influenced the court’s decision to grant him certain rights.
What is the legal distinction between a biological father and a parent under the Children’s Act? The Children’s Act distinguishes a biological father as someone with a genetic link to the child, while a parent includes those who have parental rights and responsibilities. A gamete donor does not qualify as a parent under Section 40(3).
How does Section 23 of the Children’s Act apply to this case? Section 23 allows any person with an interest in the child’s well-being to apply for contact and care rights. The court found that DC qualified under this section due to his genuine commitment and contributions to the child’s upbringing.
What were the court’s considerations regarding the best interests of the child? The court emphasised that the best interests of the child are paramount, considering factors such as the child’s physical, psychological, and emotional safety, security, and well-being.
How did the court view DC’s involvement with the child before the dispute? The court acknowledged that DC had been involved in the child’s life, including attending medical appointments, contributing financially, and being present at the birth, which supported his claim for contact rights.
What role did the agreement between AV, NZ, and DC play in the court’s decision? The agreement, although contested in terms of co-parenting, showed that DC was given certain rights and responsibilities, influencing the court’s decision to grant him limited contact rights.
Why did the court reject DC’s claim to co-parenting rights? The court rejected DC’s claim to co-parenting rights because the agreement lacked key elements such as guardianship and comprehensive details required for a co-parenting agreement.
What did the court order regarding DC’s contact with the child? The court ordered that DC be granted limited contact rights, including regular visits and the ability to attend certain events, recognizing his role in the child’s life.
What was the court’s stance on the removal of DC’s name from the child’s birth certificate? The court refused to remove DC’s name from the birth certificate, citing the importance of the child’s identity and the lack of evidence that it was not in the child’s best interests.
How did the court address the issue of DC’s consent for international travel? The court ordered that AV does not require DC’s consent for temporary international travel with the child but required DC to provide timely consent for passport applications and renewals.
What did the court say about the medical aid dispute? The court allowed for Z to be removed from DC’s medical aid if AV demonstrated superior coverage, otherwise ordering DC to upgrade the medical aid cover provided for Z.
How did the court plan to address the maintenance payments for Z? The court referred the matter to the Maintenance Court to determine the amount of maintenance DC should pay towards Z’s living and travel expenses, noting the need for a comprehensive future arrangement.
Why did the court emphasize the need for a re-evaluation of the best interests of the child? The court highlighted the lack of comprehensive evidence regarding Z’s current conditions and emphasised that future arrangements should be re-evaluated to ensure they serve Z’s best interests.
What were the court’s instructions regarding future co-operation between the parties? The court urged the parties to avoid further litigation and co-operate in finalising future arrangements, noting that prolonged conflict would be detrimental to Z’s well-being.
How did the court address the issue of costs? The court decided not to award costs against any party, recognizing that all parties acted in what they believed to be the best interests of Z.
What was the final declaration regarding AV and NZ’s parental status? The court declared that AV and NZ have full parental rights and responsibilities for Z, recognizing their status as parents under the Children’s Act.
What was the outcome for DC regarding his claim for guardianship rights? The court denied DC’s claim for guardianship rights, citing the current animosity between the parties and the potential risk to Z’s best interests.
What was the court’s final order regarding the matter? The court issued a comprehensive order addressing parental rights, contact arrangements, medical aid, maintenance, and consent for international travel, aiming to protect the best interests of Z.
Conclusion
The judge’s decision in A.V and Another v D.C and Others (40522/19) [2024] ZAGPJHC 626 (26 June 2024) was correct as it meticulously balanced the legal and factual complexities of the case while prioritising the best interests of the child, Z, in accordance with Section 28(2) of the Constitution and the Children’s Act 38 of 2005. The judge acknowledged DC’s genuine commitment and contributions to Z’s life, granting him limited contact rights that reflect his role beyond that of a mere sperm donor. At the same time, the decision upheld the legal provisions of Section 40(3), which exclude gamete donors from acquiring parental rights, thereby maintaining the integrity of the legislative framework. By ensuring that AV and NZ retain full parental rights and responsibilities, the judge safeguarded the stability and welfare of the child.
The judgment also included practical measures, such as addressing the medical aid issue and allowing for future re-evaluation of Z’s best interests, demonstrating a thorough and nuanced approach to family law that considers both current and evolving circumstances. This comprehensive and balanced resolution underscores the court’s commitment to the child’s holistic well-being, aligning legal principles with the practical realities of the case.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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