Historically, sperm donors in Australia have not been considered to be the parent of the subject child and are not named on the birth certificate.
Due to the fact that donations are often anonymous, sperm donors do not have the legal standing to seek a Parenting Order regarding the child.
However, a recent case in the Family Court of Australia has set the framework for when a sperm donor will be considered to have parental rights and be able to spend time with a child who was conceived through donor sperm and an IVF procedure.
In this case, the mother and father had been friends for a considerable time. When the sperm was provided, it was intended that the parties would have certain involvement in the child's life. It was never either party's intention to live as a couple and they had not done so.
However there was evidence that the parties had agreed that if a child was born, the father (sperm donor) would spend time with the child.
Following the birth of the child, the mother and the sperm donor had a falling out and the mother decided to cease the arrangement for the sperm donor to spend time with the child.
The father brought action before the Family Court of Australia in Victoria to spend time with the child. The court looked at both the Family Law Act (Cth) 1975 and The status of Children Act (VIC) 1974. The court looked in particular at the definition of "parent" and it was found that the sperm donor was the father of the child.
A conflict of law occurred in the case in that the state legislation provides "an irrebuttable presumption that where a woman who has no partner undergoes a procedure as a result of which she becomes pregnant, the man who provided the genetic material is not the father".
This conflict between state and Commonwealth law is easily dealt with in that should any such inconsistency exist, the Commonwealth legislation will prevail.
The mother's case was that the father did little more that provide his genetic material and therefore had fulfilled no parental role for the child and should have no decision-making power for the child.
The Court ruled against the mother and made orders for Equal Shared Parental responsibility – giving both parents the right to make decisions for the child and meaning they would be required to agree. The Court also set out regular time for the child to spend with the father.
If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist Family & Relationships lawyers.