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Sperm donors and legal parentage

By February 23, 2021February 23rd, 2024No Comments

A recent article over at the UK’s Marilyn Stowe Blog looks at the legal issues surrounding sperm donorship, in response to their firm’s commissioned research suggesting single women in the UK could be becoming concerned about the pandemic’s effect on their chances of finding a mate and having children and are increasingly considering assisted reproductive technologies. The article explains what the situation is there for sperm donors and legal parentage of donor children. English family law is very different from Australian family law though, and in this specific area Australia has also seen some landmark court decisions in recent years. So, what is the legal situation for Australian sperm donors? Let’s take a quick look.

Marilyn Stowe says of their new research data:

“61% of single women surveyed said they were worried about their chances of having a family due to Covid-19. Of these, almost half said they were now considering technology-aided conception methods, which they would not have considered pre-pandemic, with the most popular choice being egg freezing, followed by IVF, sperm donation, surrogacy and platonic pregnancies respectively.”

Could a similar trend occur here? If so, what should Australian single women know about sperm donors and legal parentage?

Assisted reproductive technologies and sperm donorship have been an evolving and complex facet of family law in Australia for some time now. It’s expected that both our federal and state laws will undergo reform at some stage, because there are still such uncertainties in this area.

The confusion arises partly because our state and federal laws about sperm donors and legal parentage are not mirrors of each other. Under state laws, a sperm donor does not have legal parentage unless he is the husband or de facto partner of the mother. But under federal laws, sperm donors may be considered a parent under certain circumstances—and they are definitely not automatically excluded from being a legal parent.

What is a “legal parent”?

Being a child’s legal parent comes with legal and financial obligations, parental responsibility for the child, and enables the parent to make applications to the courts about arrangements for the children without first needing to obtain the permission of the court.

What happens if a sperm donor wants to be recognised as the legal father of the child?

In 2019, a landmark High Court case ruled on the subject of whether a sperm donor was the legal parent of a child, finding that—in this particular set of circumstances–he was. In the case, known as Masson & Parsons, a man had provided sperm to a friend for artificial insemination, but later asked the family courts to be considered the conceived child’s legal parent for parenting proceedings.

In what circumstances might a sperm donor be found to be a legal parent?

Relevant factors identified in Masson & Parsons included the fact the sperm donor gave his semen with the express or implied understanding that he would be one of the child’s parents, and that the parties had always had an agreement that the sperm donor would care for the child both emotionally and financially (which he did). Another factor was that the child identified the sperm donor as her father and called him “Daddy”.

While every case turns on its own facts, what the Masson & Parsons decision shows us is that there is a strong need to identify the role a sperm donor will play when a child is born via artificial insemination. The High Court’s decision helped clarify how the courts should interpret the meaning of a “parent”, but there are still unknowns for sperm donors and recipients.

Is a sperm donor liable for child support?

In some situations, maybe. A lot hinges on who is defined as a “parent” under the federal legislation. The Child Support (Assessment) Act 1989 (Cth) contains a definition of “parent” that doesn’t expressly exclude sperm donors for the purposes of that Act. That Act’s definition of parent “means a parent who is a parent of the child under section 60H” of the Family Law Act 1975 – which as we have discovered, can include sperm donors. Section 60H of the Family Law Act 1975 is clear that for mothers who are in a relationship (married or de facto) and who conceive with a sperm donor, that sperm donor does not fall into the definition of “parent” – the mother’s husband or de facto partner instead fills that role. But the law is silent on the situation for unmarried/unpartnered women and whether their known sperm donors could be liable for child support payments. This is something that altruistic sperm donors should carefully consider before proceeding.

The takeaways?

With the complexities and uncertainties of the law in relation to sperm donors and legal parentage, it’s important to seek legal advice if contemplating embarking on conceiving a child with a sperm donor.

If a donor is not desired to be a legal parent to the child, or indeed to fulfil any role in the child’s life, it may be safest for a recipient to use an anonymous sperm donor. Using a licensed sperm donor clinic, there will be less uncertainty, more simplicity and more regulation, though of course also more costs. When conceiving via a clinic, the sperm donor will not be considered a legal parent unless agreed so by the parties.

But if proceeding privately with a known donor, all parties should make their intentions crystal clear at the outset. Perhaps the donor is intended to do nothing further than provide his biological material for the child’s conception, or perhaps the donor wishes to play an ongoing role in the child’s life—either way it should be spelt out without doubt.

The best thing for everyone involved is to aim for extreme clarity from both the donor and the recipient as to the details of the arrangement. All parties should obtain their own legal advice, and then formalise their informal agreement into a “donor agreement”. This is not legally binding but is a useful document setting out parties’ positions at the time of making the arrangement and could be useful if litigation later occurs. The agreement should also cover parties’ intentions regarding child support payments. Parties could also create evidence about how conception happened by all signing a statement as to the facts of the sperm donation. All such documentation could help avoid the potential financial and emotional costs of litigated disputes later down the track.

The law for parenting cases is now very complex, as it covers biological parents, parents who conceive through formal IVF type procedures (whether or not one or both are genetically linked to the child), parents who conceive through informal at-home artificial insemination techniques, intending parents of same sex relationships and sperm donors in some circumstances. If you have been cut out of the loop of a parenting court case, but consider that you should be a party to a case, Alliance Family Law can assist you with an application to join court proceedings. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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