The High Court has found that a man who donated his sperm to a lesbian friend is the father of the child. The matter highlights the myriad factors – other than biology – that determine if someone is a parent.
For the background on this case, read our previous article “High Court considers who is a parent under Family Law Act“.
A key factor in the arguments presented was whether state or Commonwealth laws should apply.
Ordinarily, section 60H of the Family Law Act (Cth) applies to children born as a result of artificial conception where the woman is married or in a defacto relationship with another person. This section says this in these circumstances a sperm donor is not considered a parent, despite the genetic connection to the child.
However, in this case, because the mother and her current partner were not in a defacto relationship at the time of the child’s conception, section 60H did not apply to exclude the sperm donor from being considered a parent.
Whereas the Full Court of the Family Court decided that s79(1) of the Judiciary Act would apply to “pick up” provisions of the NSW Status of Children Act – which would have the effect of excluding the father from being a “parent”, this approach wasn’t supported by the High Court.
In its summary of the decision, the Court outlined, whether or not a person was a ‘parent’ under the Family Law Act is a question of facts and degree, determined according to the “ordinary, contemporary understanding of a ‘parent’ and the relevant circumstances of the case at hand”.
In this case, it was relevant that the man had provided sperm to a close friend with the intention of playing an ongoing role in the child’s life. As well as being named on the birth certificate, the child called him ‘Daddy’ and they enjoyed a close relationship.
This decision highlights that caution needs to be exercised when a sperm donor is known to the recipients and has an ongoing relationship with the child. It is possible that a genetic donor may at some time in the future seek parenting orders in relation to that child. Whether the application would be successful will depend on all the facts of the case.
Likewise, it is possible that genetic donors who develop a parental relationship with their biological child may later be found to be a parent under the law. This may deter donors who wish to have some involvement in their biological child’s life to do so, lest they are found to have some responsibility, including financial obligations, as it’s not clear the level of involvement that separates a donor and legal parent.
However, it’s important to note that this doesn’t mean is that anyone who has been a sperm donor can be considered a parent and acquire parental rights. Anonymous sperm donors wouldn’t be able to seek out parental responsibility after the fact.
Have a question about parenting matters or need to better understand your rights? The team at DDCS Lawyers are experienced in all aspects of family law. Call us on (02) 6212 7600 to arrange an appointment.