A same-sex couple from Johannesburg, South Africa, are seeking a court declaration preventing their sperm donor from claiming parental rights to their child.
Anita Virga and Nonkululeko Ziqubu conceived a child through artificial insemination using a known donor. The three adults agreed prior to conception that the donor would not ask to be recognised as the father or later take part in raising the child. However, after the birth of the baby, the donor sought parental rights.
The couple's court papers show that they are seeking a declaration that 'any child born of that spouse or permanent life partner as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses or permanent life partners' according to South Africa's Star newspaper.
The sperm donor is able to claim parental responsibility under Section 40 of South Africa's Children's Act 2005. The act recognises that the legal parents of a baby conceived through assisted reproduction are the spouses who raise him/her, but does not extend the same recognition to unmarried life partners such as Virga and Ziqubu.
The couple believes this provision is unconstitutional and want the court to declare that the inseminated mother and her permanent life partner are the sole guardians and legal parents of their child.
'Section 40 of the Children's Act [should] be declared to be inconsistent with the Constitution of the Republic of South Africa to the extent that [it] does not include the words 'or permanent life partner' after the word "spouse" and "husband",' said papers filed at South Gauteng High Court by the couple's lawyers.
The case has yet to be heard, but PinkNews reports that the donor is likely to oppose any ruling in favour of the couple.