In a ruling that evinces the contemporary complexities of the family law terrain, the Pension Funds Adjudicator (‘PFA’) recently dismissed a peculiar claim from the mother of a deceased sperm donor’s biological twins against Old Mutual Wealth Retirement Annuity Fund (‘the Fund’), which refused to allocate the deceased’s death benefits – or a percentage thereof – to her children.
Pursuant to section 30B of the Pension Funds Act, the PFA was established to, inter alia, fairly, economically, and expeditiously dispose of written complaints lodged with the board of a pension fund organisation.
In the present matter, the deceased was a member of the Fund until his death on 4th January 2021. Upon the deceased’s death, a pre-tax death benefit of R787 524.00 became available for allocation to his beneficiaries. While the deceased was survived by two customary spouses and several children, the Fund allocated 80% of the benefit to his major son and the remaining 20% to a customary spouse.
Following this allocation, the complainant questioned why her twins, whose paternity is not in issue, were excluded from receiving a portion of the deceased policyholder’s death benefits. Central to this complaint is her allegation that the parties’ relationship went beyond that of an ordinary sperm donation arrangement. Under section 1(1)(b) of the Children’s Act (‘the Act’), the definition of a ‘parent’ excludes individuals whose biological relationship with a child is the result of donating gametic material for the purposes of artificial fertilisation. Consequently, sperm donors are precluded from acquiring parental rights and obligations under the Act.
With full knowledge of the statutory position, the complainant sought to rely on the case of Roodt v Scrazzolo, which found that contributors of gametes may acquire parental rights and duties by providing additional proof to parent, to supplement her twins’ claim. After meeting in 2020, the complainant and deceased enjoyed a platonic relationship. According to the complainant, the parties agreed to co-parent a child through artificial fertilisation. Although the deceased passed away three months into the complainant’s pregnancy, she submitted that he was a ‘supportive prospective father’ and actively prepared to financially care for her unborn children. In support of this allegation, the complainant supplied copies of text messages between herself and the deceased, as well as invoices proving that he had paid for various medical procedures and appointments during her first trimester. In the complainant’s view, this demonstrated that the deceased was committed to being an ‘active and supportive father’.
Disputing the claim and reiterating that the deceased policyholder did not meet the statutory definition of a ‘parent’, the Fund argued that section 26(2)(b) of the Act would otherwise have prevented the policyholder – a sperm donor – from applying to be legally identified as the children’s father. Additionally, the Fund contended that section 40 of the Act explicitly provides that sperm donors do not acquire rights or responsibilities in respect of children conceived via artificial fertilisation, unless the donor was married to the child’s mother at the time of conception. Moreover, the deceased signed a ‘consent of known donor sperm’ form, which was issued by the clinic that administered the procedure. In this respect, the deceased expressly acknowledged that he would not acquire any parental rights or responsibilities in respect of any children conceived via artificial fertilisation.
The Fund further argued that the complainant’s reliance on Roodt v Scrazzolo was misplaced. That case, unlike the present matter, concerned non-clinical insemination – not artificial fertilisation. Accordingly, the child’s father had neither signed a waiver nor entered into an agreement regulating sperm donation, and clearly demonstrated an attempt to contribute to the resultant child’s upbringing. Contrastingly, the Fund contended that the evidence supplied by the complainant did not suggest a strong relationship between the parties or the deceased’s desire to assume financial responsibility for the children. Instead, their text messages demonstrated that the parties lived separately, the deceased barely visited the complainant, they never discussed their future finances, and he expressed no intention of including the children in his will.
Ultimately, the PFA agreed with the Fund. Reaffirming that no right or responsibility arises between a child conceived via artificial fertilisation and an unmarried sperm donor, the PFA ruled that the evidence supplied by the complainant was insufficient to establish that the deceased policyholder intended to assume financial responsibility for the twins. While the deceased may have contributed toward the complainant’s medical expenses during her pregnancy, this contribution cannot negate the provisions of the Act. Accordingly, the PFA ruled that the Fund had correctly refused to allocate the death benefits – or a portion thereof – to the complainant’s children, and the claim was thus dismissed.
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Read the PFA’s ruling here.
