SPERM DONATION AND PARENTAGE – THE HIGH COURT TO DECIDE

The High Court of Australia has been called upon to hear an appeal regarding the legal parentage of a child “B” born as a result of an artificial insemination procedure.  In this case the donor “X” is a person known to the donee mother.  The donor’s name appeared on the child’s birth certificate and he, at all times, believed that he was fathering a child with whom he would be involved by way of both financial support and physical contact.  The mother also had a child from another donor.  Both children believed that the respondent donor was both of their father and only recently discovered otherwise.

When the mother and her partner sought to relocate with the children to New Zealand, X opposed the application.  At first instance he argued to the Family Court that when B was conceived, the mother and her partner were not in a de facto relationship at the time he donated the sperm (this is a relevant factor in considering parentage under certain provisions of the Family Law Act) and that he had provided his sperm for the agreed purpose of fathering a child, to which he expected to be involved with as a parent.  The mother and her partner were denied permission to relocate and it was ordered that X and the mother have equal shared parental responsibility and that the mother must consult with him before making any long-term decisions involving the child.

The mother appealed and the decision of the primary Judge was overturned in the Family Court on the basis that X was not a legal parent.  X has subsequently appealed to the High Court of Australia to determine issues of B’s parentage.

This case has the potential to affect an unlimited number of cases involving children born as a result of artificial conception procedures.  The Family Law Act currently creates a presumption in favour of intended parents and currently excludes known sperm donors as a “legal parent” of a child, regardless of what the parties may intend.  Other provisions of the Family Law Act entitle a person, such as X, as a person potentially playing a significant role in a child’s life (in the subject case, this had been the case in the child’s life).  In many cases, some parents may prevent a sperm donor’s involvement, removing such entitlement in practice.

The Family Law Act may not deal well with circumstances where a child has three or four parents.  The Federal Attorney General, Christian Porter, has intervened in the High Court case, arguing the term “parent” might be expanded to include sperm donors in certain cases.  If that position is upheld, it may mean that single women who use sperm donors may not be able to exclude a donor from a role as a parent in the child’s life.  This will obviously have far reaching implications for mothers, donors and children.