Is a sperm donor agreement enforceable?

This was the question before the Pretoria High Court in the case of QG v CS. The answer to the question in general is yes, but if the welfare of the donor-conceived child conflicts with any term of the sperm donor agreement, the child’s welfare will supersede such term. 

I was admitted as amicus curiae (friend of the court) in QG v CS. With the assistance of two of my postgraduate students, I filed written submissions. I also presented oral argument in court. Here is the eventual judgment.  

The court expressed sympathy with the sperm donor, but dismissed his application for contact rights with the child. The crux of the judgment – and of my amicus submission – is that a sperm donor’s biological link with a donor-conceived child provides no basis for the donor to sue for parental rights and responsibilities in respect of the child. On the other hand, if a sperm donor has truly developed a father-like relationship with the donor-conceived child, his status as sperm donor does not bar him from suing for parental rights and responsibilities in respect of the child. 

In other words, parents who conceived a child by making use of a sperm donor who is known to them need not be afraid to allow the sperm donor occasional contact with the donor-conceived child, as such occasional contact – like with an uncle or a family friend – will not entitle the sperm donor to any parental rights and responsibilities.