Muvhango Rukaimane has dismissed his complaint against Old Mutual Wealth Superannuation Fund for denying the twins' mother's claim after the sperm donor's death. (Nadine Hutton/Bloomberg via Getty Images)
TA pension fund adjudicator ruled this week that the Winns sisters, who were born as a result of a joint parenting sperm donation arrangement, are not eligible to be beneficiaries of their biological father's life insurance policy.
Muvhango Rukaimane has dismissed a complaint against Old Mutual Wealth Superannuation Fund for failing to recognise the claim of the mother of twins after the death of the sperm donor.
According to the adjudicator, the deceased was a member of the fund until his death on January 4, 2021. He is survived by a minor daughter, a minor son, an adult son, two stepchildren, two common-law spouses, a sister, two nieces and a nephew.
“Upon the death of the deceased, a total pre-tax death benefit of R787,524.00 was paid.
The Trustees will distribute 80% of the death benefit to the beneficiaries.
“The eldest son of the deceased will receive 10 percent of the benefit, while the common-law spouse will receive 20 percent,” the Pension Fund Adjudicator's Office said in a statement.
This department is a statutory body established to resolve pension disputes fairly and expeditiously. It investigates and adjudicates complaints about abuse of power, misadministration, disputes of fact or law and dereliction of duty by employers in relation to the administration of pension funds.
According to the judge, the mother of the twins filed a complaint with the judge alleging that her children were not being considered as beneficiaries. She claimed that she met the father in early 2020. The two had a platonic relationship and later decided to co-raise the children through artificial insemination. However, the father passed away three months after she became pregnant.
The woman said the man had been supportive as a future father and had made financial provisions for the children's upbringing, including paying for medical and surgical expenses during her pregnancy.
“She argued that this was the deceased man's way of demonstrating his commitment to being a proactive and supportive father to her children. Plaintiff submitted text messages with the deceased man to prove that her relationship with the deceased man was more than a typical sperm donor,” the judge's office said in a statement.
The petitioner stated that he was aware that the definition of “parent” in the Children's Act does not allow a man who donates sperm for the birth of a child to obtain parental rights and responsibility; R vs S, The ruling held that sperm donors could acquire parental rights and responsibilities if they could provide further evidence of parenthood.
She submitted a sperm donation consent form and pointed out that completing the form was a mere formality. She said factors such as the development of a relationship with the deceased, the best interests of the children and equitable consideration must be applied in the case.
But Old Mutual argued that the policyholders did not qualify as “parents” under the Children Act definition: the company argued that one paragraph of the definition excluded biological fathers because they were sperm donors for the purposes of artificial insemination.
Because the twins were born through artificial insemination, the law means the man cannot apply to be granted parental rights and obligations.
The Foundation argued that Section 40 of the Act confirms its position that sperm donors have no rights, responsibilities, obligations or liabilities in respect of a child born through artificial insemination.
This position was confirmed by the policyholder in the “Sperm Donor Agreement” signed by the centre where the artificial insemination was carried out, the court said. The policyholder therefore argued that he acknowledged that the child born as a result of “insemination by sperm donor” was not his legitimate child and did not have the rights and privileges that this position entailed.
Old Mutual said the plaintiff R vs SShe did not provide a citation, but was presumably referring to Rood v. Scazzolo. [2019] JOL 44118 (KZD).
The Fund argued that the facts of this case did not deal with artificial insemination because the defendant was conceived by the applicant through natural insemination.
The applicant applied under section 21(1)(b) to be recognised as a parent with rights and privileges. The court found that the applicant met the requirements of section 21(1)(b)(ii) of the Act by contributing to the child's upbringing and maintenance. It also found that the father had not signed a waiver or entered into a “known sperm donor agreement”.
The fund argued that after carefully reviewing the complaint, it was not convinced that the text conversations demonstrated a deep relationship and an intent to assume financial responsibility.
However, the messages revealed that the woman and the deceased did not live together, the deceased did not visit her regularly, and there was no evidence that they had discussed future financial matters or included their children in his beneficiary nominations or will.
In conclusion, the Fund argued that the death benefit would not be sufficient to meet the future needs of all dependents and that the benefit would best serve minor children.
In his ruling, Justice Rukaimane said the provisions of the law do not create any rights, responsibilities, obligations or liabilities between a child born through artificial insemination and the sperm donor.
She said there was no doubt that the deceased man was the donor and it was true that the twins were his biological children, but added that according to the law, a donor cannot acquire custody and responsibility over a child unless he is married to the woman, and since the deceased man was not married to the mother, the twins cannot be considered his legal dependents.
Rukaimane said the plaintiff was unhappy with the distribution of his death benefit and believed the deceased woman's payment of medical expenses was evidence of her willingness to act proactively as the father of the twins.
“However, the victim and the plaintiff had a platonic relationship and there was no romantic or intimate nature in their relationship,” Rukaimane said.
“The text messages submitted by the plaintiffs demonstrate this, and the Fund correctly analyzed that they are insufficient to prove that the deceased intended to assume financial responsibility for the twins.”
“Furthermore, the fact that the deceased woman paid the plaintiff's medical expenses as a contingency payment during her pregnancy does not negate the provisions of section 40 of the Children's Act and therefore the twins were not dependent on the deceased woman. Accordingly, the Fund correctly excluded the twins from its distribution of the death benefit.”
“The suit fails and is therefore dismissed,” Judge Rukaimane ruled.
