Being a sperm donor does not make you a father, and being a biological parent does not confer absolute rights, according to a ruling by the Pension Funds Adjudicator.
The adjudicator, Muvhango Lukhaimane, recently dismissed a complaint by a woman who was aggrieved when the Old Mutual Wealth Retirement Annuity Fund refused to recognise her twin children as beneficiaries following the death of the sperm donor.
The deceased, Mr X, was a member of the fund until he passed away in January 2021. He was survived by a minor daughter, minor son, major son, two stepsons, two customary spouses, sister, two nieces and a nephew.
Upon Mr X’s death, a death benefit of R787 524 before tax became available for allocation to his beneficiaries. The fund’s board allocated 80% of the death benefit to Mr X’s major son and 20% to one customary spouse.
The complainant, Ms Y, was unhappy that the twins were not considered as beneficiaries. She submitted that she met Mr X in early 2020. They had a platonic relationship and later decided to co-parent a child through artificial insemination. She became pregnant and Mr X died three months into her pregnancy with twins.
Ms Y said Mr X was a supportive prospective father, actively preparing financially to care for the children. She said he had financed various medical appointments and procedures during her pregnancy and she provided texts from him to prove that her relationship with him was more than that of a normal sperm donor.
Ms Y said she was aware that the definition of “parent” in the Children’s Act excludes men who contribute sperm 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 these rights and responsibilities.
The fund submitted that Mr X did not qualify as a “parent” under the definition in the Children’s Act.
Given that the twins were born from artificial fertilisation, the Act excluded the father from making an application to afford him parental rights and obligations.
This position was confirmed by Mr X himself in a signed “consent of known donor sperm” from the fertility centre which administered the artificial fertilisation.
The fund submitted that while the complainant relied on the matter of R v S, the facts of this case did not deal with artificial insemination at all. In this case the mother was impregnated through natural insemination and the father contributed in good faith to support the child’s upbringing and maintenance.
The fund said it had 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 had also established that Mr X and Ms Y did not live together, that he did not visit her regularly, and there was no indication of a discussion related to future financial affairs, including the children on his beneficiary nomination or in his will.
In her determination, Lukhaimane said the facts indicated that the twins were Mr X’s biological children with the complainant. It was undisputed that he was the sperm donor to Ms Y, which resulted in the birth of the twins. However, as stated in the Children’s Act, sperm donors do not acquire parental rights and responsibilities to the children born as a result of their sperm contributions unless he is married to the woman giving birth to the child. 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 Mr X did not contribute to their financial needs.
Lukhaimane said Ms Y relied on the fact that Mr X had paid for various medical appointments and procedures. Therefore she averred that he intended 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,” Lukhaimane said.
PERSONAL FINANCE