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Lesbian couple forced to take legal action after sperm donor tries to claim parental rights

Emma Powys Maurice January 13, 2021
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A woman holding her pregnant belly

A Johannesburg couple are litigating against their sperm donor, who is demanding he be recognised as father (Envato)

A lesbian couple in South Africa have been forced to take legal action against their sperm donor, who is demanding parental rights to their child.

Anita Virga and Nonkululeko Ziqubu, who live in Johannesburg, were familiar with the donor before fertilisation but had a standing agreement that he wouldn’t seek recognition as a father or be involved in the child’s life in any way.

That all changed after the child was born. He is now demanding full parental rights to the child – and unfortunately for Virga and Ziqubu, he may have the law on his side.

Section 40 of the Children’s Act in South Africa recognises that the legal parents of a child conceived via artificial fertilisation are the spouses who raise them, not the donor, but Virga and Ziqubu are not married.

They argue that this legislation should be declared unconstitutional on the grounds that it only identifies spouses as parents, and not permanent life partners.

“Section 40 of the Children’s Act [should] be declared to be inconsistent with the Constitution of the Republic of South Africa to the extent that [it] does not include the words ‘or permanent life partner’ after the word ‘spouse’ and ‘husband,'” said the notice filed in South Gauteng High Court, seen by the Star.

“The section should be amended to stipulate that ‘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,'” it added.

The couple want the court to amend the legislation to also state that the artificially inseminated mother should share no right, responsibility, duty or obligation with any person except her husband or permanent life partner.

For the avoidance of any doubt, they will seek a formal declaration that “the minor child who is the subject of this application must, for all purposes, be regarded to be the child of the first applicant and second applicant”.

The sperm donor reportedly intends to challenge this in court.

Related topics: artificial insemination, johannesburg, LGBT parents, South Africa, sperm donor

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