DONOR AGREEMENTS

An AGREEMENT between YOU, your PARTNER and a DONOR is referred to as a donor agreement or parenting agreement.

What's in a donor agreement

A donor agreement can include things such as:

how the child is to be conceived;
health of the donor;
with which adult the child lives;
where the child lives;
how much time the child spends with each parent and/or the donor;
what the child calls each parent and/or the donor;
what the child’s surname will be;
who will be listed on the child’s birth certificate;
how much time the child spends with extended family members (eg. aunts, uncles, cousins, and grandparents) and does this include the donor’s family;
where the child spends special occasions such as birthdays, Christmas, Easter, and other holidays;
where and what school the child goes to (public or private);
what extra-curricular activities the child does;
what religion, if any, the child is to be raised in;
who will make medical and health related decisions;
who pays for what expenses for the child;
who can take the child on interstate and overseas holidays; and
the day-to-day care of the child.

A donor agreement should be in writing, entered into freely, signed by each parent and the donor, and dated.

In the recent High Court case of Masson v Parsons [2019] HCA 21, the Court made it clear that it was the intention of Mr Masson to be a parent to the child. The mother did not agree. There was no written agreement between the parties. Mr Masson believed that he was providing his sperm on the basis that he would be a parent. If the parties had had a properly drafted donor agreement, this would have clarified their intentions in going into the arrangement. In future cases involving known donors, the Court will look at the intention of the parties.

In the Family Court case of Re Patrick (2002), the Court strongly recommended that parties enter into written agreements prior to conception and/or birth of a child. A donor agreement will often show the parties intention in going into any known donor arrangement. In this case, the Court found that:

At the time of conception, the parties had intended for the donor to be significantly involved in the child's life; and
That it was of benefit to the child to have ongoing contact with the donor.

As a result, the Judge made orders for the donor to have time with the child on a gradually increasing basis.

Whilst it is great if you reach an agreement with your donor around these issues, it is very important for women to understand that donor agreements are not legally binding. So if your known donor breaks the agreement and wants to spend more time with the child, the agreement may not stop this from occuring. A known donor may request more time with the child and to do so he can file what’s called an Initiating Application in the Family Court or Federal Circuit Court seeking parenting orders or time with the child.

In saying this, having a donor agreement may prevent future arguments and could also be a critical pice of evidence in litigation in relation to parenting proceedings. The Court however will consider your donor agreement and the outcome of a case could be determined on what is included in the agreement, such as:

What the parties' intentions were in going into the arrangement;
Importantly, how the child was concevied;
Whether the mothers were in a defacto relationship at the time of conception;
How much time the donor has spent with the child.

It is also beneficial to go through the donor agreement process, as often just going through the process can make parties think about what roles each party will play in the child's life, and each parties' expectations and responsibilities.

Having these conversations upfront and clarifying any misunderstandings may held prevent disputes from arising in the future. It is definitely worthwhile having a donor agreement.

Parenting agreement

Parenting agreements are also known as parenting plans.[i]

Although not legally binding, these documents are a good way to record an agreement between you, the other parent, and/or a known donor. A parenting plan should be entered into freely, be in writing, be signed by each parent and/or donor, and be dated.[ii]

You can register your parenting plan with the Family Court and then the plan stays in force until further agreement or by an order of the Family Court.[iii]

Whilst it is great if you reach an agreement around these issues, it is very important for women to understand that like donor agreements, parenting plans are not legally binding and are not enforceable. So if someone breaks the agreement, there’s not much you can do. Your only remedy may be to file an Initiating Application in the Family Court or Federal Circuit Court seeking parenting orders.

The Court may take into account any agreement you have, whether you and your ex-partner and/or the donor have met your obligations under the agreement, and if it is in the best interests of the child to make an order. However, the Court will not make specific orders just because you had certain terms in your parenting agreement (meaning, the court is not required to enforce the agreement’s terms).

Summary of Main Points:

A donor or parenting agreement is a way for a lesbian couple and their known donor to clarify all the questions and issues around the donor’s role in the child’s life.
Donor agreements can set out the parties' intention in going into the arrangemen which may be helpful if there is any dispute in the future.
Donor agreements and parenting agreements are not legally binding and therefore not enforceable by the court, but highly recommended to clarify each party's intentions and set clear expectations.

Footnotes

[i] s 63 Family Law Act 1975 (Cth)

[ii] s 63(1) Family Law Act 1975 (Cth)

[iii] s 63DB Family Law Act 1975 (Cth)

Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers by email nevans@nelawyers.com.au or call (02) 8379 1892.