Maintenance Issue 6

Maintenance Issue 6

Duty of support of child born as a result of artificial fertilisation

In L v J 1985 (4) SA 371 (C) at 377, Berman J held that there is no doubt that where a husband has given no consent to his wife’s resorting to artificial insemination with the sperm of an unknown donor, the child is illegitimate, and no duty is imposed on the husband to provide maintenance for the child born by artificial insemination.  I have to admit that this was in 1985 and I am of the opinion that this might not be so easy as it sounds taking into regard section 28 in Chapter 2 of the Constitution 108 of 1996 on the foundation of the best interest of the child.  There are judgements out there that has disregarded everything just to maintain the status quo in terms of the best interest of the child.  This does not mean that I have not empathy for this father, but the fact remains that this child will have to be maintained and what if the wife is a housewife with no income of her own.  Something to think about despite the fact that if might be in the extreme unfair to this father.

The Children’s Status Act in section 5(1)(b) provides that no right, duty or obligation arises between a child born as a result of the artificial insemination of a woman and

·         A person whose gamete or gametes have been used for the artificial insemination and

·         The blood relations of that person;

unless that person is the woman who gave birth to the child or is the husband of the woman at the time of the artificial insemination.

Extra-marital children

It is today settled law that the ordinary rules relating to a parents’ duty to support his or her child apply in respect of an extra-marital child.  Thus both parents must support any children, and there is no difference in scale; both are responsible for maintenance according to their means.  A woman claiming support for her marital child must prove paternity. 

Both parties must contribute to the lying-in expenses according to their means.  These include maintenance for the mother immediately before, during and immediately after birth.  These expenses are considered to be in the child’s interest as against damages for seduction, which are considered to be for the benefit of the woman.  Whether loss of earnings is claimable as part of lying-in expenses is controversial, and there are judgements therefore as well as against such claims.

 Adopted children

According to the Child Care Act, “an adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parents”.  Thus in regard to the reciprocal duty of support between parent and legitimate child it makes no difference whether the child is adopted or not.  Upon adoption, the reciprocal duty of support between the adopted child and his or her natural parents ceases to exist.  

Court Cases

Buch v Buch 1967 (3) SA 83 (T)

There should be full disclosure of the financial position of the parties.  Even where the parties are represented the maintenance and presiding judicial officers share with the parties the responsibility of gathering evidence.

Chizengeni v Chizengeni 1989 (1) SA 116 (ZHC)

It would be superficial and unrealistic to suggest that the first wife must be maintained at the same standard even though the husband has subsequent commitments.

Roels v Roels [2003] 2 All SA 441 (C)

Whether “good cause” exists for the variation of a maintenance order must be assessed on the particular facts of each case.