Over the past few years there have been cases that have come before the Family Law Courts involving men who provided their genetic material (sperm) to single women or couples (mainly same sex couples) wanting to have children.
In some cases, these men donate purely for altruistic reasons and have no intention of being involved in the care and upbringing of the child. In other cases, there is an intention on behalf of the “donor father” to be involved in the upbringing of the child. So what happens when the donor father actually wants to be an active father?
Difficulty can arise when the biological mother of the child is in a de facto relationship at the time of conception. If this is the case the sperm donor father is not a “parent” at law because the legislation provides that the couple, living in a de facto relationship, are the parents. So where does this leave the donor father in terms of legal rights?
What are sperm donor legal rights?
These issues were addressed in a case decided by a Federal Circuit Court Judge in Melbourne in late 2013. The case highlights the difficulties with these types of arrangements and the risks for all parties involved, including young children.
In that case, an Application was brought by the donor father as a “person interested in the care, welfare and development of the child”. In his Application, the father sought Orders for equal shared parental responsibility (to be shared with the mothers) and Orders for a progressive and regular regime of spending time with the child, eventuating in a shared parenting arrangement. There seemed to be some evidence that the parties had intended to co-parent the child. This changed either just before or just after the birth and sadly the relationship between the mothers and the donor father broke down.
It was not in dispute that that the donor father had developed a bond with the child and that he should have an ongoing relationship with her. The problem was that the parties could not agree on the donor father’s level of involvement in the child’s life and the mothers did not wish to share parental responsibility with the donor father.
In the end, the Judge made Orders providing for the child to spend time with the donor father on a graduated basis, albeit much less time than what was being sought. The Judge did not make an order for equal shared parental responsibility. The Judge refused to consider any agreements that the parties had around the time of conception because at the end of the day, the Judge was bound to decide the case based on what she considered to be best for the young child. Any agreements, whether in writing or verbal were not legally binding and would not play a part in her decision.
The case highlights the risks associated with known sperm donors and shared parenting.
It’s important for people to think very carefully before entering into these types of parenting arrangements. For couples in a same sex relationship seeking to have children, those who do not wish to have the donor father involved in the child’s life may wish to opt for an anonymous sperm donation through more formal channels. Donor’s seeking to be involved fathers should seek legal advice about their position at law before making any decisions.