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The right to know, parentage and legal considerations around sperm donation

It is an internationally-held principle that a child has a right to know their social and biological origins and identity. [1] It is for this reason that in Australia, it is no longer possible to make an anonymous sperm donation.

As at March 2017, Victoria retrospectively opened its donor records to allow all donor-conceived children access to identifying information about their donor in an effort to advance the rights of donor-conceived children to know where they come from. [2]

A safe and welcome avenue for linking people connected through sperm donation in Victoria has now been made possible by the recently established voluntary donor-conception register, which allows people connected through sperm donation to voluntarily exchange identifying information about themselves.

Parents of donor-conceived children are also able to apply for information about their child’s donor before the child turns 18 through a central register. A parent making early contact with a sperm donor while the donor-conceived child is still young has, however, opened up a can of family law issues surrounding the relationship between the child and donor.

Family law issues also commonly arise where there is a preexisting relationship between the mother of a donor-conceived child and the male sperm donor friend.

Who is a “parent”?

Two questions family lawyers are often asked include whether the sperm donor can be considered a parent of the child, and whether they can apply for a family law order to spend time with the child.

Where a child is born to a biological mother and her partner by way of artificial insemination, the Family Law Act 1975 (Cth) (“the FL Act”)provides that they will be deemed the parents of the child, not the person who provided genetic material. [3]

Where a child is born to a single mother, the question of whether the sperm donor is the father is considerably more complex, and requires careful consideration of a range of factors such as the intentions of the mother and sperm donor, whether the sperm donor was known to the mother, and who is listed as the father on the birth certificate. [4]

Even if a sperm donor is not a legal ‘parent’, they can apply for a Court order to be involved in the child’s life as “a person concerned with the care, welfare and development of the child.” [5] In that event, the child’s best interests will be paramount consideration. In these situations the father, while not a ‘parent’ of the child, can have certain parental responsibilities conferred upon him.

In many cases involving a sperm donor who has a pre-existing relationship with the mother or mothers of the child, the sperm donor has been successful in applying for parenting time with a child. This may come as a shock to many who do not consider their parental autonomy being at risk in the sperm donation process.

Does a sperm donor have to pay child support?

As a starting principle, a child has a right to be cared for and maintained by their parents. This includes the right to be financially supported.

Whether a sperm donor will be required to pay child support therefore depends significantly on whether they are deemed a parent of the child, and involves an interplay between the legal definition of parentage in case law and the FL Act, and whether they are then a ‘liable parent’ according to the Child Support (Assessment) Act 1989 (Cth). [6]

The case law surrounding the requirement of a sperm donor to pay child support for a child conceived by way of sperm donation is complex and determined on the particular facts of each case.

How to protect your interests

Engaging in mediation and written agreements before a child is born as a result of sperm donation may help avoid, pre-empt and resolve disputes between a donor and the parent or parents.

Parties who find themselves in dispute over a child conceived as a result of sperm donation may use written agreements as evidence of the parties’ intentions if the matter proceeded to Court.

We suggest it is best practice for any written agreement to be formalised in the Court by way of Consent Orders as soon as practicable after an agreement is reached.

This is because informal written agreements are not binding the way Court Orders are. As such, an informal written agreement absolving a sperm donor from the obligation to pay maintenance for a child, or absolving a sperm donor from any other aspect of parental responsibility, is not watertight and may not be enforceable.

Equally, a written agreement which provided for a donor to have frequent contact with a child could not prevail over a finding by the Court, in a given case, that contact is not considered to be in the best interests of the child.

The need for clarity

While traditional conceptions of what a family is have evolved, the legal framework surrounding parentage and what role a sperm donor will play in the life of a child is seemingly unsettled.

Some prospective parents may want a donor to have no role, while others may want a donor to have a parental involvement with the child. In each case, the law surrounding who is a parent and what role that person is expected to play is not set in stone and will depend heavily on the facts of each case.

This offers little comfort for those outside of the narrow heterosexual family model making the decision to have children.

It is important for sperm donors and excited new parents alike to be able to make informed decisions about the life and future of their child. Access to information and counselling and for prospective parents and donors is therefore essential.

For further information about donor-linking, you can contact the Victorian Assisted Reproductive Treatment Authority on 03 8601 5250.

[1] His Honour Chief Judge John Pascoe ‘The Child’s Right to Know and Family Law Orders

[2] See Assisted Reproductive Treatment Act 2008 (Vic)

[3] Family Law Act 1975, s 60H

[4] See for example, Tobin & Tobin [1999] FamCA 446; Bateman & Kavan [2014] FCC 2521.

[5] Family Law Act 1975 (Cth), s 65C(c)

[6] Bateman & Kavan [2014] FCC 2521