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Same Sex Family Law

This Glorious Mess – Mamamia Podcast

AND – what’s a ‘baby pre nup’? Well, it’s the agreement that more and more people are drawing up with the sperm donor of their babies. We talk to Nicole Evans, a Sydney lawyer who specialises in this area, to discuss what you DEFINITELY need to agree on before you embark on parenting with someone who is not your partner.

From 23 minutes

Listen to the whole Podcast here
TRANSCRIPT

Holly:

There’s a court case in the High Court last month which was very interesting about what the line is between a parent and a sperm donor. Now this case involved two people we are calling Robert and Susan. Now Susan was in a same-sex relationship and she and Robert had been friends for years and in 2006 they decided to privately and informally conceive a child. So basically, Robert was like I will give you the sperm and Susan was like tops, and they made an informal arrangement between them that Robert was going to be involved, like they had a bit of an agreement about what was going to happen. But a few years later, Susan, with a new partner, wanted to move to New Zealand with the child. Robert petitioned and said no, that’s not going to happen because that child is mine. Now, the reason it went all the way to the High Court is because Susan said, well no you are a sperm donor, and Robert said Well no I am a father. This is a situation that is becoming increasingly common for women in same-sex relationships for a variety of reasons as they are using donor sperm to make a family. And it’s not always as straight forwards as it seems. So we thought we would talk to someone who understands this, and Nicole Evans, runs a law practice called Nicole Evans Lawyers, and one of the things she does is she draws up heaps of donor agreements, so she is going to tell us what you should be looking for if you want to do this, what the risks are, and what the differences are between a sperm donor and a dad.

Andrew:

Hello Nicole.

Nicole:

Hello.

Holly:

One of the reasons why this case has caused so much debate is because in this situation, is because these days there are lots of conversations surrounding couples, whether they are in same-sex relationships or otherwise, who will say, be asking friends to be a donor for their children. Like entering informal sperm donor situations to have a child, and I guess the thing that’s interesting about this is what the legal things are you have to consider before you do that. So, if you’re just saying to Bob, you’re mate, I’d like to have a baby, I’m not going to have a sexual relationship, but I want to have a baby, and he’s like that’d be great, I’ll donate sperm, what do you need to think about before you actually make that arrangement, because, whatever happened here, they clearly weren’t on the same page.

Nicole:

Yeah look, if you are going to have a child with a friend, the first step would be to get some legal advice and get a donor agreement drafted. If you are in a de-facto relationship with your partner, then legally your partner is the child’s parent, if you’re in a de-facto relationship at the time of conception. If you’re not in a relationship with someone else and you use a known donor, then that leaves room for that known donor to be declared a legal parent. So, it’s more relevant for single women.

Andrew:

So, it’s a matter of defining at the very beginning, ok so Bob, you’re going to be the donor but you’re not going to be the parent, you’re going to be the donor and the parent.

Nicole:

The person, say the birth mother is in a de-facto relationship with her partner, two women, and they want to have a child, they’re in a de-facto relationship and they both consent to the artificial inferitlisation procedure, then they are legal the child’s parents.

Andrew:

Yeah, and then he’s simply a donor.

Nicole:

He can’t be declared a legal parent, but he could be a person concerned with the welfare of the child, so he could still make an application to the family court, for time with the child, but not as a legal parent.

Holly:

Are those the types of things that would be spelt out in a donor agreement?

Nicole:

Yes.

Holly:

So, if you are thinking about doing that you should go and seek advice from a lawyer and get a donor agreement drawn up. Is that the kind of stuff that’s in there, like what kind of access, what kind of rights the donor will have, is that the kind of detail we are talking about?

Nicole:

Yes so, we are clarifying relationship status at the time of conception, how the child was conceived, some people will conceive a child at home via turkey baster. Some people will say that they are going to have sex with the man to get pregnant and I would always say to people if you are going to have sex with the man to get pregnant, even if he is a donor, he will be the father of the child.

Holly:

Does the make a difference?

Nicole:

Yes.

Holly:

So, the manner of conception of makes a different to the status?

Nicole:

Yes, so under the legislation, it must be artificial fertilisation, not natural fertilisation.

Holly:

Is it possible that even if you do these things, you get your donor agreement drawn up, and the donor says I don’t want to be involved but I might pop over every couple of months to say hello, and then they change their mind…

Nicole:

Yes, and that often happens.

Holly:

Say a man changes his mind and he goes, look at that baby it got my eyes, what happens then.

Nicole:

That’s common. If that happens then the donor can apply to the family court, and the court can look at what the intentions were, for the parties going into the arrangement, and how much time that man has spent with the child.

Holly:

And are the court quite likely to find that he has a right to spend some time with the child if there is nothing wrong with him if there is nothing wrong with him.

Nicole:

The court is moving towards allowing known donors to spend some time with the child, that’s certainly the direction the court seems to be moving towards. It’s effectively making a choice for that person to be involved in the child’s life. It’s really dependant upon the facts of each case. I wouldn’t say it’s a blanket rule, but certainly if they are spending some time with the child, and there is some attachment, they may get some time.

Andrew:

So, for Robert and Suan, the case that went to the High Court, they didn’t have an agreement?

Nicole:

No, they just had an informal arrangement.

Andrew:

So, this is what a lot of people would od, go listen I want to have a baby and we get along well I’m sure we can work this out and then it all goes to…

Nicole:

Yeah, and that’s what a lot of people do, friends decide they want to have a child. I always say to people that once someone sees their biological child things change so its good to have lots of conversations going into the arrangement to defy everyone expectations.

Holly:

In Australia its not legal for you to have an arrangement with a commercial sperm donor, is it?

Nicole:

No.

Holly:

Because in America or somewhere it’s a commercial agreement that you can have with a stranger isn’t it, what would your options be in Australia?

Nicole:

So, in Australia, you can buy sperm through a fertility clinic which are referred to as unknown donors, so you won’t know their name, identity or who they are. The only contact you can have with that donor would be when the child turns 18, at law they are allowed to get their donors name and address.

Holly:

That’s right, and that’s a relatively recent change isn’t it, because I remember reading that that has meant that there is a drop in sperm donations, is that true?

Nicole:

Yes, that’s right, that’s true a lot of unknown donor sperm is from overseas.

Andrew:

Has that dropped because lots of people don’t want to be found as the father and then responsible. So, the 18-year-old can turn around and say well hang on you’re my father so where is my first car.

Holly:

Yeah, and emotional reasons too. But that’s a good point about financial arrangements, is that something else that would be put in a donor agreement with your lawyer and is there also a situation in which Susan could say to Bob, my financial situation has changed, you need to contribute to the upbringing od this child even though that was never the arrangement.

Nicole:

Yeah so, you can include it in the donor agreement, at the end of the day it’s not a contract, so if you are found as a legal parent, it comes as your obligation to pay child support.

Andrew:

Ok and so how far would you put things in an agreement? Would you put parenting stances so things like I want to have public school only or things like I’ll contribute to private school, but only from secondary school only?

Nicole:

Yeah, look so it’s better to be as detailed as possible and leave little room for conflict.

Andrew:

And preparing for the divorce as supposed to the wedding is the same.

Holly:

That’s what you do as a lawyer I suppose, so if a woman comes to you whether she’s in a same sex relationship or whether she’s single and she wants to get a donor agreement drawn up those would be the things you would advise her about, think about all the eventualities and all the things that could go wrong.

Nicole:

Yeah absolutely. Think about all the things that could go wrong with the donor and the questions with the donor to clarify what the arrangement is going into it, and a lot of people say that are afraid they will scare the donor off.

Holly:

What do you say then?

Nicole:

Why are you still considering having a child with this person if you can’t even have these conversations.

Andrew:

Yeah, it’s a bit like a baby pre-nup sort of thing.

Nicole:

Yeah basically.

Holly:

Thank you Nicole, that’s very interesting. If people want to find out more about this type of thing, if they are seriously considering this type of arrangement, what is the best places for resources.

Nicole:

You can give us a call, go to our website.

Andrew and Holly:

Thank you very much!