A recent news feature on TimesLive reports that a Durban-based judge has just granted the ex-boyfriend of a woman who asked him to impregnate her co-parenting rights.
While that in itself isn't unusual, the difference here is that the woman alleges that she wanted a sperm donor and asked her then ex-boyfriend to help her with the caveat that he would have no responsibility toward the child and wouldn't have to pay financial support.
The judge however, rejected her claims and has stated that custody of the child would be shared, with every alternate weekend spent with the father.
The change also came about because the father had apparently changed his mind and realised that it was an opportunity for him to become a dad and started attending ante-natal classes with his ex.
When their relationship became acrimonious, the man eventually went to court to ask for an order declaring him a holder of full parental rights, a defined contact order, and that the woman pay his legal costs. The judge granted his requests, but made no order as to costs - based on the fact that the the child's needs were paramount in the case.
But, what happens in the case where the sperm donor is not known?
A discussion paper, which was released by the South African Law Reform Commission a while back, is questioning whether the anonymity of sperm donors should continue to be protected.
Their paper has us asking: Should children who were born from donated sperm have the right to know who their biological parents are?
While this question may at first appear polarising, interrogating it tends to lead us down a very complex and unclear path.
Upon interrogating this question however, one wonders whether the counter argument is strong enough of a push back.
According to Sowetan Live, those opposed to giving children born under these circumstances the right to know who their biological parents are, are saying that making this information available could deter would-be sperm donors.
Don’t get me wrong, I think that that may very well be the case, however, is it enough to counter the alternative: What if withholding the true biological information of a person materially impacts his or her wellbeing?
Suppose the child from an anonymous sperm donor would have had access to information that could help prevent a hereditary disease; would that justification not outweigh the counter argument posited earlier?
The South African Law Reform Commission is concerned that those who do not know their biological origin will develop ‘genealogical bewilderment’ due to not knowing the biological origin. They are of the opinion that it may bear psychological implications.
702’s Xolani Gwala suggests that perhaps to solution to this lies in taking it on a case by case basis. From that we can deduce that the people involved in each case should be able to determine what information is made available and what is withheld.
This appears to be a sensible solution. However, is it enough to counter possible implications on the health and wellbeing of someone who was conceived this way and who has had this information withheld from them?
That said, and without offering a clear cut answer to this question, for now at least, I’d like to suggest that we regard the individuals that stand to be impacted upon the most in this instance. I’m referring to the child, and ultimately the adult, who did not ask to be conceived in this way.
Aside from the potential physical and psychological implications that withholding this information may have, is it right and just to deny someone the right to choose whether to know or not to know?
Why then should his or her freedom of choice subsequently be denied?
Is it justifiable to withhold information from that child, and later that adult, for the benefit of others?
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