Prof Skelton citation in sperm donor case

Posted on June 29, 2021

Children’s rights are a constantly evolving subject that develops in line with contemporary issues in society. The North Gauteng High Court recently handed down a judgment that grappled with the question of whether a known sperm donor should have ongoing contact with his biological child. Justice Jody Kollapen began his judgment with the time-worn quote from Kahlil Gibran: ‘Your children are not your own, they are life’s longing for itself, they come through you but not from you, and although they are with you, yet they belong not to you’.  The man had initially agreed with the lesbian couple into whose family the child was born, that he would not be involved in the child’s life. However, they permitted contact and he came to know and love the child. When his demands for contact began to interfere with their lives, the child’s parents put an end the contact, causing the father to turn to the courts. The court denied the application, finding that the family was deserving of protection from outside interference and that such contact would not ultimately serve the best interests of the child. The work of University of Pretoria’s Professor Ann Skelton was referred to twice in Justice Kollapen’s judgment – firstly in respect of her arguments in a previous case that the Children’s Act recognises different family forms that go beyond the traditional nuclear family approach. A recent article of hers, published in De Jure, was also cited in the judgment. Commenting on the case this week, Prof Skelton said ‘This is a difficult case with competing interests that had to be weighed in the balance. The court correctly recognised that the mere agreement between the parties could not be the over-riding consideration – and that the best interests of the child had to be factored as the paramount consideration. The child was still young so his views could not be considered by the court, but in cases where children do have views about retaining contact with a biological parent, that would be an important factor’. Children’s rights are being impacted by bio-technological advances such as artificial fertilisation and surrogacy agreements, and Skelton predicts we will see more of these kinds of cases in the future.

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