Contributed by Vincent Shimutwikeni, Manager: Legal Support Services, RFS Fund Administrators

Case Overview
In BA Pheto on behalf of two minors vs Old Mutual Wealth Retirement Annuity Fund (PFA Annual Report 2024/25), the Pension Funds Adjudicator (PFA) dismissed a complaint by a woman seeking to have her twin children—conceived through artificial insemination using the deceased member’s sperm—recognised as dependants for purposes of a retirement annuity fund death benefit.

Background
The deceased fund member passed away in January 2021, leaving two customary spouses, three sons, a sister, a niece, and a nephew. A gross death benefit of R787 524 was allocated 80% to one adult son and 20% to one spouse. The complainant, the mother of the twins, argued that her children were also dependants, as the deceased had financed part of her pregnancy and had expressed interest in co-parenting.

Fund’s Position
The fund rejected the claim on the basis that:

• The deceased’s role was limited to that of a sperm donor under sections 26 and 40 of the Children’s Act.
• A signed “consent of known donor sperm” form expressly excluded any parental rights or responsibilities.
• There was no shared household, no ongoing financial support, and no mention of the complainant or the twins in the deceased’s estate planning documents.
• Given limited resources, the fund prioritised recognised dependants with established financial needs.

Adjudicator’s Findings
The PFA upheld the fund’s decision, ruling that:

• A sperm donor does not acquire parental rights or obligations unless married to the birth mother at the time of conception.
• Biological connection alone does not establish legal or factual dependency.
• The deceased’s ad hoc medical payments during pregnancy did not amount to dependency.
• The deceased neither supported the twins financially nor created a dependency relationship before death.

The complaint was therefore dismissed, and the fund’s distribution of benefits remained unchanged.

Legal Significance
This case affirms that biological parenthood through artificial insemination does not create a dependency relationship under pension law unless legal parental rights are established or financial dependency is proven. It reinforces that the Children’s Act governs parental status in cases of artificial conception. At the same time, pension fund boards must base dependency assessments on actual financial support or a legal obligation—not on biology or moral considerations.

Learning Points for Pension Practitioners

• Dependency under the Pension Funds Act requires proof of factual or legal support.
• Donor agreements and the Children’s Act take precedence over biological connection in determining parental rights.
• Fund boards must balance equitable distribution with the statutory definition of “dependant.”
• Practitioners should advise members on how reproductive choices may affect dependants’ rights in the event of death benefits.

Important notice and disclaimer
This article summarises the understanding, observation and notes of the author and lays no claim on accuracy, correctness or completeness. RFS Namibia (Pty) Ltd does not accept any liability for the content of this contribution and no decision should be taken on the basis of the information contained herein before having confirmed the detail with the relevant party. Any views expressed herein are those of the author and not necessarily those of RFS.