Lesbians and sperm donor fight for child

by Peter Magee on June 28, 2011

Peter Magee

On 25 May 2011 The Sydney Morning Herald published an article by Natasha Wallace called “Mother of all Battles as Sperm Donor Fights for Child”.

The article tells how (name withheld) donated sperm ten years ago to a lesbian couple (names withheld).  The agreement was that (name withheld) would have some involvement in the child’s life. Exactly what his involvement would be was never decided.

(name withheld) has made significant financial contributions to the child from $5,000.00 worth of fertility treatments before her birth, through to child support payments (which he was not obliged to pay) and payment of one third of her school fees for two years.  He had also allowed the mother of the child to live with him for three months when she was unable to pay her own rent.  The ten year old girl is also the major beneficiary in his will.

The couple has since separated and (name withheld) is seeking to have (name withheld)s name removed from the birth certificate.  (name withheld) says “no-one seems to care about fathers these days”.  He was of the view that “they used me and they took my money and now they’ve got what they want, they really just didn’t want to know me”.

The current law in Australia considers the parent of a child born of artificial insemination to be the woman who carries the child and her husband or her de facto partner, including if the partner is of the same sex.  The law says that the sperm donor is not the father of the child.  In the absence of court orders, the law considers that parents, in this case the (name withheld) couple, have equal shared parental responsibility for the child.

Sperm donors are not considered parents to their biological children and do not, by the fact of biology alone, have parental responsibility for a child.  That being said, a non-parent (which includes a sperm donor) can apply to the Court to have parental responsibility for a child if they are a person who is concerned with the care, welfare and development of the child.  This could include a sperm donor father who plays an active role in the child’s life.

This case highlights some of the difficulties with sperm donor arrangements.  (name withheld) stated that the three parties were all on good terms at the start of the arrangement.  But as the relationship between him and the couple disintegrated, the role he was to play in his biological daughter’s life has been unclear.

The current law provides recognition for same sex couples as parents.  However, sperm donors, such as (name withheld), may view the law as letting them down.  The difficulty is balancing the wishes of sperm donors who do not want to be legally defined as a parent to their biological children and who would be discouraged from donating sperm if the law defined them as a parent, with sperm donors who do want to have an active role in the child’s life.  Currently it is arguable that the law does not cater for the wide variety of different sperm donor arrangements that parties may enter into.

Parties entering a sperm donor agreement need to be aware of where they stand under the law.  In particular, men donating sperm to a couple should be aware that under the law they are not considered a parent of the child, even though they may have every intention of being actively involved in the child’s life and are biologically the child’s father.

If you have any questions regarding artificial insemination, either as a donor or as a person who is considering using a donation please contact us at Armstrong Legal on 9261 4555.

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