KNOWN DONORS

Unknown donor rights

A KNOWN DONOR may have some rights and can have parental responsibility in relation to a child.

Before choosing a known donor, women should be aware that there have been several recent cases where a known donor has requested and been granted legal rights to a child. This makes the choice of using a known donor potentially more complicated; if you are considering this option, I would encourage you to consult with a family law solicitor who is well versed in this aspect of the law.

Donor/Father's rights

A known donor may, on application to the Family Court, be declared a legal parent and granted parenting orders, which means that the child may be required to spend time with him. He can be named as the father on the child’s birth certificate, and he may also be required to pay child support.

Each case is unique so it is difficult, if not impossible, to predict the outcome.

If you have used a known donor, the Family Court may take this choice as an indicator that you intended and wanted to include this person in the child’s life.

The Family Court will look at whether the donor is a person “concerned with the care, welfare and development of the child” and whether it is in the child’s “best interests” to spend time with the donor. The Court may also take into account if the child already has two legal parents or one – in the case of lesbian who has had a child without a partner.

Recent Family Court cases

If you are a single lesbian using a known sperm donor, or even in a relationship and using a known donor, be aware that in the recent 2019 High Court case of Masson v Parsons a known donor was determined to be the legal parent of a child born via articifical insemination with a lesbian friend.

In another recent Family Court case of Groth v Banks[i], a known donor was declared a “parent” and obtained an order for equal shared parental responsibility for the child. He was then found liable for on-going child support. This was despite signing a waiver provided by the IVF clinic that he would have no rights as a parent in relation to the child that was eventually created from his sperm.

However, when lesbians are in a de-facto relationship and one of them gives birth as a result of IVF, her partner is presumed to be the other legal parent of the child, thereby essentially preventing the donor from being a legal parent.

In Wilson v Roberts (No 2) (2010) two lesbians had a child with a known donor. The donor and his partner had an oral agreement with the lesbian couple that he would donate his sperm on the basis that he would play a significant role in the child's life. When the child was born, the mothers did not allow the donor and his partner to have contact with the child. The case went to the Family Court and the Judge made orders for the child to spend time with the donor and his partner, even though the lesbian couple were the legal parents. The Judge said that the child should have the benefit of the donor and his partner being involved in their life.

It doesn’t matter if you have a parenting agreement or contract with a known donor. It is important to know that parenting agreements and contracts with known donors are not legally binding and are therefore not enforceable. You cannot contract out of your responsibilities in relation to a child.

Can a donor charge for his sperm?

A known donor cannot charge you for donating his sperm. In NSW, the Human Tissue Act 1983 (NSW) prohibits 'the sale or supply of tissue' by anyone other than an authorised provider (such as a clinic). The maximum penalty for a donor who provides semen for a fee is a fine of $4,400 and/or 6 months imprisonment.

However, a donor can ask to be compensated for the cost of medical procedures and other expenses related to the donor process.

Are there risks with home insemination?

If you are attempting to conceive using known donor sperm through a fertility clinic, then the sperm will be tested for diseases and infections such as HIV, Hepatitis B and C and other STD's as required by the Assisted Reproductive Technology Act. The donors sperm count will also be tested. The sperm must be quarantined for 3 to 6 months and tested again before it is used.

If you are attempting conceive via home insemination, then the donor will not have to undergo the same rigorous testing. You will also not know how many children have been born already to that donor, whereas with a clinic, there are limits to how many children can be born from the same donor.

Does a donor have to pay child support?

If your donor is not your child's legal parent, then your donor is not assessed as a 'parent' for the purposes of child support under the Child Support (Assessment) Act 1989 (Cth). A donor is also not considered a 'parent' for the purposes of child maintenance under the Family Law Act. This means they are not legally required to pay child support.

If your donor is listed on your child's birth certificate and has legal parent status, then the donor would be required to pay child support.

If you are thinking of having a co-parenting relationship with a known donor, or you are already in one, you may want to consider discussing the following options to ensure the child’s rights (as opposed to donor rights) are protected. The points for discussion are:

Where a child is born to LGBTIQ parents, the sperm donor is not assessed as a 'parent' for the purposes of child support under the Child Support (Assessment) Act 1989 (Cth).

A donor is also not considered a 'parent' for the purposes of child maintenance under the Family Law Act. A donor therefore has no legal liability to pay child support.

Child's rights

Does your donor have a valid will naming the child as a beneficiary?
Does your donor have an up-to-date binding nomination in his superannuation fund?
Should you name your donor on day care/school forms granting authority to collect the child?
Does your donor agree to pay child support?

I cannot emphasize this enough: you should always seek legal advice before entering into any arrangement with a known donor.

Summary of Main Points:

A known donor has no assumed legal rights in relation to a child.
A parenting plan is not legally binding.
The Family Court has considered a known donor as a legal parent or alternatively a person “concerned with the welfare of a child” and therefore the court may grant him time with the child.
Consider how you can also protect your child’s rights with a known donor.

Footnotes

[i] Groth v Banks [2013] FamCA 430

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 at nevans@nelawyers.com.au.