29 Jan When does a sperm donor go from being a ‘donor’ to ‘Dad’?
Thanks to the decision in Mason & Parsons and Anor  FamCA 789, that question is a little easier to answer now.
The Family Law Act 1975 (Cth) does not exclusively define the definition of “parent” and in this case, the Court was required to determine who was the legal parent of a child conceived by sperm donation.
There were two children who were subject to the Application. One child was conceived by a known donor (Robert) when the Mother (Margaret) was single. Robert and Margaret had a long friendship and Robert understood he would have some involvement in the child’s life after birth, and in fact he did with the child calling him ‘Dad’. The second child was conceived by anonymous donation. Robert was recorded as the Father of the child on the child’s birth certificate and after the child’s birth, Margaret entered into a same-sex relationship with Susan. Margaret and Susan were married in New Zealand in 2015.
When the matter came before the Court, the child was 10 years old. Margaret and Susan were wanting to relocate with the child to New Zealand and they relied on earlier Court decisions that said that sperm donors were not parents. Susan also sought an Order that declared her the intended parent of the child. Quite obviously, Robert disagreed.
In this case, Cleary J held that Richard (as sperm donor) had parental rights of the child because Margaret was not in a same-sex de facto relationship at the time of conception; he could be identified as the sperm donor; and because Richard had an existing parental role in the child’s life. Further, the Court determined that Susan did not meet the legal requirement to be declared the other intended parent of the child because she was not in a de facto relationship with Margaret at the time that the child was conceived.
The judgement makes for an interesting read, and you will see that the Judge is particularly critical of the way Margaret and Susan conducted their case where Cleary J states:
“I am more concerned about this evidence than the overall approach of the two women. The inference could be drawn that Margaret told (the child) that Robert was not her father in order to influence the outcome of these proceedings. Such emotional cruelty would not be consistent with a sufficient capacity to meet the child’s emotional needs. Another explanation is a lack of insight, but Margaret is not insightless…”
Ultimately, the Judge reminded Margaret and Susan that the task of the Court is to make Orders that are in “the best interests of the children taking into account and preserving if possible the relationships that mean most to them”. What was considered to be in the child’s best interest was for the child to remain living in Australia and spend regular and consistent time with Robert.
You can read the published Judgment here:
We can provide you with advice on a wide range of family law matters, including the implications of conceiving a child through a donor and surrogacy arrangements. Contact us on 4929 2225 if you would like to find out more.