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Interview on ABC Radio
ABC Radio Transcript
Nicole:
In this particular case the father was involved in the child’s life since birth, donated sperm on the assumption he would play a role in the child’s life, was on the child’s birth certificate and was referred to the child as daddy. It’s a significant case in terms of same-sex families and those using donors.
Interviewer:
So what is the state of these sorts of arrangements these days, are they becoming more common?
Nicole:
They are becoming more common; we’ve been dealing with them in a work environment in the context of drafting donor agreements and dealing with legal cases that arise when these particular arrangements break down.
Interviewer:
And do they have built into them situations where there are things that can go wrong?
Nicole:
Look donor agreements can, there are many scenarios, but they are not legally binding, so at the moment particularly for this judgement, the law is pretty unclear on the legalities and the rights of the donors.
Interviewer:
Without going into the complexities of the cases that you deal with, what rule of thumb advice would you give to people that might be considering entering into such contracts.
Nicole:
Always seek legal advice; ensure that you know the person for a reasonable amount of time; that you have had as many conversations as you can that clarify everyone’s expectations and roles going into the arrangements, and document everything.
Interviewer:
That must be very difficult to draft that, bearing in mind what you think of now may not be the case in twenty, thirty years down the track.
Nicole:
Look in this case you could be a legal parent but not a biological parent and vice versa. In this case he is a biological parent and a legal parent, and being declared a legal parent comes with other particular rights and responsibilities.
Interviewer:
Let’s look at the broader implications of this verdict. First for potential cases in the family court that might be facing the family court in the coming weeks or months or years.
Nicole:
Absolutely, and that’s why it’s important to get legal advice through someone experienced in this area who deals with these types of cases.
Interviewer:
You say that these sorts of contracts aren’t legally binding, so what default law of the state takes over in these cases.
Nicole:
In these cases, the Status of Children Act, which says that if a woman gets pregnant by an artificial insemination procedure using sperm from a man that’s not her husband, then he is not presumed to be the parent. If she is in a relationship, then her partner will be the legal parent.
Interviewer:
Now excuse my ignorance but would it be fair to say that in the past these types of pregnancies have been with anonymous donors but the prevalence now it towards arrangements with friends?
Nicole:
Yes look I think certainly there has been more of a shift towards known donors, people wanting their child to know their biological parent and with that shift has come more complexities because the law hasn’t been able to catch up to the changing social structure of families.
Interviewer:
Do you perceive a situation in the future where the state may have a role in this, or do you think that these types of arrangements, these non-binding arrangements, will evolve.
Nicole:
Look I’m hoping that they will evolve, they are legislated by states but this particular high court case has just said that common law legislation applies, and that the definition of a parent is the ordinary meaning of the word parent, so pushes aside the state legislation which creates some issues moving forward I think.
Interviewer:
Would it be fair to say that this decision today may cause some further work for you to amend practices that you have taken for granted so to speak.
Nicole:
Yes, look I think it has some significant implications for single women particularly who are the main donors. At the moment you can only have two legal parents so if a person has a child using a known donor and is single, it leaves it open to be declared who the other legal parent is, and I think with the case at hand, the issues are going to be what level of involvement from the donor is enough to be considered a legal parent, so I think there is certainly some more work to be done.