Sperm does not a father make and being a biological parent does not confer absolute rights, according to a ruling by the Pension Funds Adjudicator.

Muvhango Lukhaimane dismissed a complaint by a woman who was aggrieved when Old Mutual Wealth Retirement Annuity Fund refused to recognise her twin children as beneficiaries following the death of the sperm donor.

The deceased was a member of the fund until he passed away on 4 January 2021. The deceased was survived by a minor daughter, minor son, major son, stepson, customary spouse, stepson, another customary spouse, niece, sister, another niece and nephew.

Upon the deceased’s death, a gross death benefit of R787 524.00 before tax became available for allocation to his beneficiaries. The board allocated 80 percent of the death benefit to the deceased’s major son and 20% to one customary spouse.

The complainant was unhappy that the twins were not considered as beneficiaries. She submitted that she met the deceased in early 2020. They had a platonic relationship and later decided to co-parent a child through artificial insemination. She became pregnant and the deceased passed away three months into her pregnancy with the deceased’s twins.

The complainant said the deceased was a supportive prospective father, actively preparing financially to care for the children. She submitted that the deceased financed various medical appointments and procedures during her pregnancy. She averred this was the deceased’s way of showing his commitment to be an active and supportive father to her children. The complainant provided texts from the deceased to prove that her relationship with the deceased was more than that of a normal sperm donor.

The complainant submitted that she and the deceased had a mutual desire to be co-parents to the twins. She said she was aware that the definition of “parent” in sections 1 and 26(2)(o) of the Children’s Act 38 of 2005 (“Children’s Act”) excludes men who contribute sperm to the production of a child from acquiring parental rights and responsibilities. However, she relied on the case of R v S which held that if individuals can provide additional proof of parenthood, such sperm contributors can acquire parental rights and responsibilities.

The complainant provided the sperm donor consent form and indicated that the completion of the form was a mere formality. She submitted that factors such as the evolution of her relationship with the deceased, the best interest of the children, and equitable consideration must be applied to this matter.

The fund submitted that the deceased did not qualify as a “parent” under the definition in the Children’s Act. It submitted that paragraph (b) of the definition excludes biological father by reason of being a sperm donor for purposes of artificial fertilisation. It submitted that given that the twins were born from artificial fertilisation, section 26(2)(b) of the Children’s Act excluded the father from making an application to afford him parental rights and obligations.

The fund claimed that section 40 of the Children’s Act confirmed the position of the sperm donor acquiring no right, responsibility, duty, or obligation related to the children born out of artificial fertilisation. This position was confirmed by the deceased himself in a signed “consent of known donor sperm” from the fertility centre which administered the artificial fertilisation. It submitted that the deceased acknowledged that the children born as a consequence of his act of “sperm donor insemination” were not his legitimate children with none of the rights and privileges accompanying such status.

The fund submitted that while the complainant relied on the matter of R v S, she did not, however, provide a citation. It submitted that it can be assumed that the case referred to was Roodt v Scrazzolo [2019] JOL 44118 (KZD). The fund submitted that the facts of this case did not deal with artificial insemination at all. It submitted that the respondent in this case was impregnated by the applicant through natural insemination and was not married to the respondent. The applicant applied in terms of section 21(1)(b) to be recognized as a parent with accompanying rights and privileges. The court held that the applicant satisfied the requirements of section 21(1)(b)(ii) of the Act, his contributions, or attempts thereto, in good faith to support the child’s upbringing and maintenance. The court found, on a balance of probabilities, that the father did not sign any waiver form nor did he enter into any “known sperm donor agreement”.

The fund submitted that it carefully considered the complaint and was not convinced that the text conversations provided by the complainant corroborated the alleged deep relationship with the intention of the deceased to assume financial responsibility for the twins.

The fund said it also established from the text messages that the complainant provided that the complainant and the deceased did not live together, that the deceased did not visit the complainant regularly, and there was no indication of a discussion related to future financial affairs, including the children on his beneficiary nomination or his Will. The fund provided a letter dated 30 January 2024 that was sent to the deceased’s dependants and the deceased’s consent form from the fertility centre in support of its submissions.

In conclusion, the fund submitted that the death benefit was not enough to assist all the dependants’ future needs and that the benefit would best serve the minor children.

In her determination, Ms Lukhaimane said 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 sperm have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child; or that person was the husband of such woman at the time of such artificial fertilisation.

She said the facts indicated that the twins were the deceased’s biological children with the complainant. It was undisputed that the deceased was a sperm donor to the complainant, which resulted in the birth of the twins. However, as stated in section 40(3) of the Children’s Act above, sperm donors do not acquire parental rights and responsibilities to the children birthed from their sperm contributions unless he is married to the woman giving birth to the child. Therefore, the complainant did not acquire any legal right or responsibility over the twins as the sperm donor was not married to the complainant at the time of his death. Therefore, the twins cannot be regarded as the deceased’s legal dependants.

The twins could also not be regarded as factual dependants due to the fact that the deceased did not contribute to their financial needs. They also had no relationship with the deceased after the artificial insemination.

Ms Lukhaimane said the complainant was dissatisfied with the allocation of the death benefit and relied on the notion that the deceased paid for various medical appointments and procedures. Therefore, she averred that the deceased had intentions to be an active father to the twins.

“However, the complainant had a platonic relationship with the deceased as their relationship was absent of romance or intimacy.

“The text messages provided by the complainant attest to this and were correctly analysed by the fund as insufficient to prove that the deceased intended to be financially responsible for the twins.

“Further, the fact that the deceased may have paid for the complainant’s medical expenses as ad hoc payments during her pregnancy does not constitute dependency for the twins on the deceased as this does not negate the provisions of section 40 of the Children’s Act. Therefore, the fund correctly excluded the twins from the allocation of the death benefit.

“The complaint cannot succeed and is, therefore, dismissed,” ,” said Ms Lukhaimane.

 

 

ABOUT THE PENSION FUNDS ADJUDICATOR

 

The Office of the Pension Funds Adjudicator (OPFA) is a statutory body established to resolve disputes in a procedurally fair, economical, and expeditious manner. The adjudicator’s office investigates and determines complaints of abuse of power, maladministration, disputes of fact or law and employer dereliction of duty in respect of pension funds. For general enquiries or to lodge a complaint visit www.pfa.org.za, call 012 346 1738 or email Enquiries@pfa.org.za