UKZN academics contribute to reproductive law case

In a milestone law case, University of KwaZulu-Natal’s (UKZN) Professor Donrich Thaldar and his doctoral student, Roasia Hazarilall, travelled to the Johannesburg High Court to make their contributions to a reproductive law case.

Professor Thaldar said the matter saw a lesbian couple and a gay man battle it out for parental responsibilities and rights over a donor-conceived child. “After meeting on a website, the parties agreed to conceive a child together. However, the nature of their agreement was now in dispute. The lesbian couple argue that they had only intended for him to be a known sperm donor with no rights to the child and limited contact. However, the man argues that he was under the impression that he had concluded a co-parenting agreement with the couple where all of them would raise the child, and he, in particular, would obtain full parental rights as the father,” said Professor Thaldar.

Presenting the court with a novel opportunity to recognise the interests of all three parents, Professor Thaldar and Ms Hazarilall argued for the recognition of co-parenting arrangements – where parties agree to conceive and raise a child together without necessarily being in a romantic relationship.

The professor presented four key reasons for his argument: (1) Courts have not doubted the lawfulness of preconception sperm donor agreements and have recognised their usefulness when dealing with the merits of a case, (2) recognising the legal parentage of individuals with parental intent serves the best interests of the child, (3) the principle of pacta sunt servanda supports honouring agreements, especially when they align with public policy, and (4) preconception co-parenting agreements provide an important pathway to parenthood for gay and lesbian couples.

“This judgment is a perfect illustration of how new reproductive technologies have transformed our understanding of the traditional nuclear family. In light of these emerging family forms, family law needs to move away from its reliance on the two-parent model, romantic partnership, and biological relation when conferring parenthood,” said Ms Hazarilall.

The case is still continuing. Professor Thaldar said regardless of the outcome of the case, it is clear that the South African family law landscape is rapidly changing, adding that it was important to note that UKZN academics continue to be at the centre of it.