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SAME SEX FAMILY LAW

Sperm Donor Rights

Rights of Sperm Donor/Father

Upon application to the Federal Circuit and Family Court, a known donor may be legally recognised as a parent and granted parenting orders, potentially involving specified time with the child. This recognition can extend to the donor being named as the father on the child’s birth certificate and may also entail child support obligations. Each case is unique, making it challenging, if not impossible, to predict the outcome.

If a known donor was utilized, the Family Court might interpret this choice as an indication of your intention to involve the donor in the child’s life. The court assesses whether the donor is a person “concerned with the care, welfare and development of the child” and evaluates whether it is in the child’s “best interests” to spend time with the donor. Consideration is also given to the existing legal parentage structure, such as whether the child already has two legal parents or just one in the case of a lesbian who has had a child without a partner.

Legal Outcomes in Recent Federal Circuit and Family Court Cases Involving Known Sperm Donation

For single lesbians or those in relationships using a known sperm donor, recent Federal Circuit and Family Court cases underscore the legal intricacies.

The 2019 High Court case of Masson v Parsons determined a known donor as the legal parent of a child conceived through artificial insemination with a lesbian friend. In Groth v Banks, another Family Court case, a known donor was declared a “parent,” granted equal shared parental responsibility, and held liable for ongoing child support despite a signed waiver from the IVF clinic.

In contrast, within de facto lesbian relationships where one partner undergoes IVF, the birth mother’s partner is presumed to be the other legal parent, effectively excluding the donor from legal parentage.

Wilson v Roberts (No 2) (2010) involved a similar scenario where two lesbians had a child with a known donor. Despite an oral agreement that the donor would play a significant role in the child’s life, the Family Court ordered the child to spend time with the donor and his partner, emphasizing the child’s benefit from their involvement.

It’s crucial to note that having a parenting agreement or contract with a known donor does not establish legal binding status and is not enforceable. Responsibilities related to a child cannot be contracted out, emphasizing the need for legal clarity in cases involving known donors.

Is it Permissible for a Donor to Request Payment for Sperm?

Charging for sperm donation is not allowed for a known donor. The Human Tissue Act 1983 (NSW) explicitly prohibits the ‘sale or supply of tissue’ by individuals who are not authorized providers, such as clinics. Violating this regulation, including providing semen for a fee, can result in a maximum penalty of a $4,400 fine and/or a six-month imprisonment.

Nonetheless, a donor is allowed to seek compensation for legitimate expenses associated with medical procedures and other costs incurred during the donation process.

Risks of Home Insemination

If you’re pursuing conception with known donor sperm at a fertility clinic, the sperm undergoes thorough testing for diseases and infections, including HIV, Hepatitis B and C, and other STDs, as mandated by the Assisted Reproductive Technology Act. Additionally, the donor’s sperm count is assessed. The sperm is then subjected to a quarantine period of 3 to 6 months, followed by retesting before it is used.

On the other hand, if you are opting for home insemination, the donor is not subject to the same stringent testing requirements. Furthermore, you won’t have information about how many children have been born to that donor. In contrast, clinics impose limits on the number of children that can be conceived using sperm from the same donor.

Donors and Child Support

If your donor lacks legal parent status for your child, they are not regarded as a ‘parent’ for child support matters under the Child Support (Assessment) Act 1989 (Cth). Additionally, under the Family Law Act, a donor is not recognized as a ‘parent’ in the context of child maintenance, relieving them of any legal obligation to provide child support.

However, if your donor is formally acknowledged as a legal parent and is listed on the child’s birth certificate, child support obligations would apply. For those contemplating or currently involved in a co-parenting arrangement with a known donor, discussions should encompass considerations to safeguard the child’s rights rather than donor rights. These conversations should cover:

In situations where a child is born to LGBTIQ parents, the sperm donor is not appraised as a ‘parent’ under the Child Support (Assessment) Act 1989 (Cth).

Furthermore, a donor is not recognized as a ‘parent’ under the Family Law Act concerning child maintenance. Consequently, the donor holds no legal responsibility for child support.

Rights of the Child

If you are contemplating or currently engaged in a co-parenting arrangement with a known donor, it is advisable to discuss the following considerations to safeguard the child’s rights rather than the donor’s rights:

  • Confirm whether your donor has a valid will designating the child as a beneficiary
  • Verify if your donor maintains an up-to-date binding nomination in their superannuation fund
  • Decide whether to include your donor’s name on day care or school forms, granting authorization to collect the child
  • Discuss and establish agreement on the issue of child support with your donor

It is crucial to underscore the importance of seeking legal advice before entering into any arrangement with a known donor.

The rights of Unknown Donors

A child conceived through anonymously donated sperm is legally recognized as the child of the birth mother. In the case where the birth mother is in a de-facto relationship and her partner has given consent to the artificial insemination, the birth mother’s partner is also considered the other legal parent of the child.

An unknown donor does not possess any legal rights or responsibilities toward the child. Consequently, the donor lacks the right to access information about you, your partner, or the child, and is not entitled to visitation or financial obligations for the child.

Should you wish for the donor to have some form of involvement or contact with your family before the child reaches 18, you may potentially initiate this process through your fertility clinic, leaving the decision to the donor to establish contact with the family.

Donor Registration

Starting from 2010, New South Wales (NSW) mandates the registration of all unknown donors. Consequently, once children reach the age of 18, they gain the ability to access information about their respective donor. This information is overseen by individual fertility clinics, along with a centralized register (in NSW and VIC), facilitating connections between donors and donor-conceived children who may opt to discover more about each other.

NSW

On March 16, 2016, the Lower House in New South Wales (NSW) passed the Assisted Reproductive Technology Amendment Bill 2016. Among the changes introduced by the Bill is the provision to enable individuals conceived in NSW through donor eggs or sperm to access information about their donor, though not necessarily the donor’s name.

Moreover, the Amendment Bill retains the provision for fertility clinics in NSW to oversee records of children conceived before 2010.

Victoria

Starting from March 1, 2017, all donor-conceived children in Victoria will have the right to access information about their donors, regardless of the donor’s consent, following the passage of the Assisted Reproductive Treatment Act Amendment Bill 2015 (Vic).

Before this amendment, only children born from donated sperm or eggs after 1998 could obtain donor information upon turning 18. With the new legislation, children born before 1998 are also granted access to donor information without requiring the donor’s consent.

The Victorian Assisted Reproductive Treatment Authority will oversee the management of information about donors, offering counselling and support for donors, children, and their families.

The Bill acknowledges that donors who contributed before 1998 did so with the understanding of remaining unknown. Donor-conceived children will have the option to specify their contact preferences if the donor seeks information.

Donor Information

Upon reaching the age of 18, children conceived through donor-assisted reproduction may potentially receive the following information about their donors:

  • Donor’s name
  • Address
  • Date of birth
  • Ethnicity
  • Physical characteristics
  • Medical history
  • Sex and year of birth of other donor children
  • Fertility clinic
  • Date the sperm was provided

Australian fertility clinics are mandated to provide most of this information to individuals born from donated sperm once they reach 18. Additionally, donors and children have the option to connect through private international websites such as the ‘Donor Sibling Registry’ and other platforms specifically designed for donor-conceived individuals.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.