A lesbian couple have launched an application in the Gauteng High Court (Johannesburg) intended to block an artificial insemination sperm donor from claiming parental rights to their child.

A notice filed by lawyers for Anita Virga and Nonkululeko Ziqubu indicated that the couple, in a permanent life partnership, were litigating against the sperm donor.

The application challenged the constitutionality of a section of the Children’s Act, amended in 2005, that created room for the sperm donor to claim parental rights.

The Star says it established that Virga and Ziqubu decided to launch what promises to be a landmark application after the sperm donor, known to them before the artificial fertilisation, sought parental rights after their child was born.

A standing agreement between the three was that he would not seek recognition as a father or be involved in the child’s life in any way. The man went against the agreement after birth and now intends to oppose the application.

The court notice said section 40 of the Children’s Act should be declared unconstitutional on the grounds that it only identified spouses as parents to children conceived through artificial insemination and not permanent life partners, notes the report in The Star.

This section was constitutionally flawed in that it did not recognise permanent life partners as the only parents to a child conceived through artificial insemination, argued the document filed ahead of detailed applicants and respondents’ affidavits.

‘The applicants shall seek relief … that section 40 of the Children’s Act be declared to be inconsistent with the Constitution ... to the extent that (it) does not include the words “or permanent life partner” after the word “spouse” and “husband”,’ said the notice.

The section should be amended to stipulate 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”,’ it added.

It said the piece of legislation should be amended to also state that the artificially inseminated mother should share no right, responsibility, duty or obligation with any person except her husband or permanent life partner.

The application will seek a declarator that ‘the minor child who is the subject of this application must, for all purposes, be regarded to be the child of the first applicant and second applicant’.

Full report in The Star (subscription needed)