Hi.

I have a lady friend that are thinking of divorcing her husband. They are married for 14 years. She couldnt have kids, and after numerous times trying with in vitro fertilisation that were unsuccessfull, they opted for a donor egg from one of her friends. The donor egg was planted into my lady friend that wants to divorce, and fertilised with her husbands sperm. She gave birth to a healthy boy.

She loves her child to bits and they have a very close bond. The boy is 5 years old. Her fear is that if she divorces her husband that he will insist that she is not the biological mother of the child and that he will claim sole custody. She is a very good mother with no abuse or negligent history. She is of a very stable personality and also have a high standard of living.

Does she have to fear on a legal basis that her husband will have the ability to claim sole custody because in technical terms she is not the biological mother?

Hi there,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

This is a request for information so that I can understand your question and give you a proper answer.

Surely the lady would have entered into an agreement with her friend (in respect of the donor egg) and that your lady friend is registered as the child's mother?

Awaiting your further information.

Att. Patrick

https://www.justice.gov.za/salrc/QNRs/20170929-ip32-Worksheet.pdf

Have a look at the above worksheet because it might very well explain a number of your questions.

In short, your friend is considered the biological mother of the child notwithstanding the fact that her actual egg was not used. She has the same rights, duties and obligations to the child as the father (her husband).

You'll see that the Childrens Act says that a parent excludes any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation. 

This is the donor woman who gave up her egg. This donor woman is (by the Childrens Act) NOT the parent of the child.

I don't think that your lady friend needs to worry at all about the husband trying to take the child away. I think thatt perhaps the husband has made some threats that he can't legally follow through with!?

Your lady friend is, I assume, registered on the child's birth certificate as the mother!?!?!?

At the end of the day, the Court will look at "the best interests of the child" in making any decision. Given the bond that exists between the child and your lady friend (the "true" mother of the child) I don't think that any court would upset that apple cart.