Australia: Does a sperm donor have parental rights?

Advances in medical science have introduced a number of complex legal questions about the parental rights of a sperm donor.

Does a man who donates his sperm to fertilise a woman's egg have any rights as a father of the child? Is a mother who undergoes artificial insemination automatically granted sole custody of a fertilised egg and resulting child?

The High Court recently had to rule on this vexed question, weighing up how the law applies to a sperm donor who wants to be considered the legal father of the child.

Was he an invested parent or merely a sperm donor?

The sperm donor in question had agreed in 2006 to have a child with a female friend through artificial insemination. He is named as the father on the child's birth certificate. As a parent, he is actively involved in her life. He also provides ongoing financial support to his daughter, who calls him "daddy".

This was an amicable agreement for both the mother and father of the girl, until the mother and her female partner wanted to relocate to New Zealand and take the girl with them, along with her younger sister.

The man stopped them from moving overseas through the Family Court, where he was ruled to be a parent of the child. The mother appealed this decision.

Which law, state or Commonwealth, is most applicable?

When the case eventually made its way to the High Court, central to the dispute was the legal argument around what the term "parent" means according to the law. (See Masson v Parsons [2019] HCA 21.) And it came down to whether state law or Commonwealth law should be applied.

Under state law, a sperm donor is not a parent and therefore does not have parental rights. Section 14 of the NSW Status of Children Act 1996 states that a sperm donor is presumed not to be the father of a child conceived using his sperm, unless he is the husband or de facto partner of the mother.

However, under Commonwealth law, the sperm donor is considered a parent if he is involved in the child's life.

Active involvement in child's life means sperm donor is legal parent

Despite the original decision of the Family Court being overturned on the basis of state law, a majority of the High Court ruled in favour of Commonwealth law and declared that the sperm donor is the legal father of the child because he is actively involved in her life.

This judgment could have repercussions reaching far beyond these legal proceedings, particularly for single women who undergo artificial insemination with a sperm donor.

There is currently a significant gap between existing legislation and medical advancement in fertility procedures. Section 60H of the Commonwealth Family Law Act 1975 does not clearly define the rights of a sperm donor if the woman is a single mother. Nor does it define the term "parent".

With this is mind, it would be wise for both sperm donors and recipients to seek legal advice before agreeing to embark upon artificial insemination.

Simone Timbs
Family law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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