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Historically, society has interpreted the role of the sperm donor to be one clearly limited to the process of artificial conception.  Following this assumption, the donor typically holds no prospective legal rights to that future child.  Such a black and white understanding of the donor and child relationship is, however, far too simplistic for today’s present reality.  For example, what if a donor wanted to be involved in the child’s life, undertook the role of parent but had no legal rights to the child?

On the 19 June 2019 the High Court responded to this challenge.  It was unanimously ruled that the sperm donor of a same-sex couple was also the legal guardian of their eleven-year-old child.  It is of no surprise that prospective donors and parents are now struck by a degree of hesitation.

Parenthood is evolving and the High Court has arguably displayed a degree of judicial flexibility when responding to the changing definition of what constitutes a ‘parent’.  It would be naïve to assume however, that the overall consensus of the decision is entirely positive.

 

High Court decision

‘Sperm Donor’ suggests the minimal involvement of a biological parent in a child’s life.  The controversial role of the father within the 2019 High Court case, however, paved the way to destabilise this social construction.  The sperm was donated informally in 2006, based on the mutual understanding that the father would play a significant role in the child’s life.  Notably, the father’s name, was recorded on the child’s birth certificate.  Following the birth of the child, the father introduced the child to his extended family, volunteered at her local school and provided psychological, physical and financial support to her.  Evidently his intention to remain involved in the child’s life far surpassed that of a simple donor.

The father’s battle for legal recognition as a parent initially began when the legal guardians of the child attempted to relocate to New Zealand with the child.  In order to halt the move, the donor (and father) made an application to the Family Court of Australia, to prevent the child’s legal guardians relocating, and he was successful at the first instance.  Not happy with that decision, the legal guardians appealed the decision to the Full Court of the Family Court of Australia on the basis that the first instance judge had failed to apply the relevant law.

The Full Court of the Family Court overturned the first instance decision, stating that the donor was not a parent, however, in turn, that decision was overturned in the unanimous decision of the High Court but with Edelman J providing a separate judgement handed down on the 19 June 2019, in which the Attorneys-General for the Commonwealth and the State of Victoria had also intervened.

 

Consequence of the decision

As a result of the decision, a degree of uncertainty presently resides within the Family Court. While Family and Fertility Lawyer Stephen Page describes the decision as a sensible one, it would be naïve to assume that all responses are completely positive.

I can assure you that there are men who thought they were sperm donors and had no obligation to the child … and have now discovered that potentially they have the full gamut of responsibility, including potentially child support and inheritance,” – Mr. Page.

However, Jacqueline Brown, director of Lynn & Brown Lawyers, with over 20 years’ experience in family law notes:

“The factual circumstances of the Massons v Parsons (pseudonyms given by the Court) decision by the High Court are particular to the specific case in that, notably, the sperm donor/father had for the child’s entire life played an active role in both her life, and that of her sister, who is not biologically related to the father.  Both the child and her sister referred to the father as “Daddy”, the father was named on the child’s birth certificate and the father had contributed to the emotional, financial and physical support of both the child and her sister.  If the father was merely a sperm donor, without any of these other factors, the outcome would have likely been very different.”

 

This is an area of law that is in flux and the future of the law with regards to surrogate parents and donors is still relatively unknown.  Due to the removal of past artificial legal barriers on who is and isn’t a legally defined parent, prospective parents should seek a sperm donor agreement or egg donor agreement to ensure.

If you require assistance with an agreement or have any other questions relating to the High Court ruling and how this could affect you, or any other family law matters please contact Lynn and Brown Lawyers on (08) 9551 7668.

If you enjoyed this article, you may be interested in more family law news.

About the authors:

Bianca Fletcher-Robinson is currently undertaking full time study at the University of Western Australia. Having completed a Bachelor of Arts, Bianca is now in the process of completing her Juris Doctor of Law. Jacqui Brown is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning.  Jacqui is also a Nationally Accredited Mediator and a Notary Public.

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