Is a sperm donor legally a ‘father’?
The High Court recently considered a Family Law matter if a sperm donor could legally be considered the father and then be able to have input into parenting arrangements, such as, if the child could move overseas. The answer? Yes, but the facts of the case are important.
Does being a sperm donor automatically make you a parent?
The Family Law Act provides that if a child is born through artificial insemination while the woman was married or in a de facto relationship (this is important – we will come back to this), then both the woman and the male are parents of that child.
But what happens when you are not married or in a de facto relationship?
The recent High Court decision concluded that a sperm donor is a parent, even when you are not in a relationship.
In Masson v Parsons, Robert and Susan (the names given for the court case) were close friends for many years. Robert provided his sperm to Susan for an at home insemination in 2006. The sperm was provided on the express or implied understanding that he would be the child’s parent – his name was entered on the child’s birth certificate. After the child was born, Susan then commenced a de facto relationship with Margaret and conceived a second child through an unknown sperm donor. Robert played a very hands on and active role with not only his child, but his child’s sister (Robert is not the biological father of the second child) by providing financial support and having a role in her health, education and general welfare. Both children even called Robert, “Daddy”.
The relationship between the parties broke down when Susan and Margaret informed Robert they wanted to move to New Zealand with both children. Given the impact this move would have had on the relationship between Robert and his daughter, Robert initiated proceedings in the Family Court that he be declared ‘a parent’ of the child and an order preventing Susan and Margaret from moving from New South Wales to New Zealand.
This Application became a long drawn out process for all parties involved, in that, after the trial judge declared Robert a parent, Susan and Margaret appealed to the Full Court. The Full Court determined that Robert was not a parent as there was a ‘gap’ in the law. The High Court overturned the Full Court’s decision and concluded that the meaning of parent is the natural and ordinary meaning; and that there was no gap, meaning he was a parent. The High Court stated:
“…to simply characterise the appellant [Mr Parsons] relationship to the child as simply a ‘ sperm donor’ suggested that the man in question (the appellant) had relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is therefore to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case.”
The outcome of the case would have been completely different if Susan and Margaret were in a de facto relationship at the time the child was conceived. If they were, then the child would have been a child born to that relationship and Robert would not be considered a parent.
What does this mean for the future and family law?
It may come as a surprise to some men who have donated their sperm that they are legally a parent and liable to pay child support, among many other parental responsibilities. Likewise, some mothers may find themselves in a position where they no longer have “sole parental responsibility” but rather ‘equal’ shared parental responsibility with their known “sperm donor”.
Another issue that arises is the real possibility that a child may now have more than two parents. This is a consideration that needs to be taken into account given our changing society and modern families.
Given that the use of IVF treatment and sperm donation has increased in recent years, it is extremely important for you to be aware of your rights and responsibilities.
If you would like to discuss your personal family law matter with an experienced family lawyer, phone (07) 3221 4300 or email [email protected] or alternatively fill in our online form here to arrange a fixed fee no obligation appointment.