PART 3:
OTHER FREQUENTLY ASKED QUESTIONS:

What are the inheritance rights of the child?

Any person is free to dispose of her or his property (estate) as s/he sees fit. Therefore, the mother, co-parent, donor or the donor's partner can make provisions in their wills for the child.

If the mother dies intestate (without a will) the rules of intestacy will apply. These rules are set out in the Wills, Probate and Administration Act 1898 NSW (WPAA). Amendments to the WPAA in 1999 mean that same sex de facto partners now automatically inherit all or part of the estate, depending on how much is in the estate. To qualify as de facto partners, the parties must have lived together as a couple for at least 2 years immediately prior to the partners death. Depending on the size of the estate, the (biological) child(ren) of the deceased may also inherit some of the estate.

If the co-parent dies without a will, a non-biological child will not inherit under the intestacy rules described above. It is therefore important for the co-parent to have a will.

A child born as a result of artificial insemination is not entitled to a share of the donor's estate under the intestacy rules because the donor is not legally the father of the child (Status of Children Act ). A dispute may arise in cases where the donor's name is on the birth certificate and the child makes a claim against the estate, whether the donor had died with or without a will. Unless there is proof of an artificial insemination arrangement the court is likely to presume that the child is the legal child of the father. Such a dispute is more likely to arise when the child is an adult and the people who may have knowledge of the donor insemination arrangement may be deceased.

Any will can be contested under the Family Provision Act 1982 (NSW) if it is considered that the will maker has failed to make proper provisions for relatives or dependants. Claims for a share of the estate can be made under the Act even where there is no will and proper provision has not been made. Under the Family Provision Act a child whose long-term welfare has been the responsibility of both the mother and the co-parent can seek part of the co-parent's estate in the event of her death.

A child may be also able to claim against the estates of the donor or donor's partner under the "other dependant's category" of the Family Provision Act, where provisions have not been made for the child. The child would need to establish that s/he was a member of the deceased's household and was wholly or partly dependent on the deceased at some time. This type of situation could arise where the donor and his partner agree to play a regular part in the life of a child conceived through a donor insemination arrangement. The usual limitation period to make a claim under the Family Provision Act 1982 (NSW) is 18 months from the death of the deceased.

Will the co-parent's income affect the mother's eligibility for Centrelink payments?

No.

Currently the Social Security Act 1991 does not define lesbian and gay couples as "spouses" or recognise them as a de facto couple. Each member of the couple is therefore assessed separately as an individual and their partner's income and assets are not taken into account when eligibility for benefits is being assessed.

Can health insurance be obtained at the reduced "family" rate?

This depends on the particular health benefit fund. Most do offer the family rate to same sex couples. Those that refuse to do so can be pursued for discrimination.

The exclusion of a gay couple from the "concessional" or "family" rate was tested in NSW under the Anti-Discrimination Act 1977. In the case of Hope and Brown v NIB Health Fund Limited (1995) it was found that the insurance provider had discriminated against a gay couple and their child by refusing them the concessional family rate for health insurance.

Are informal donor insemination arrangements legal?

In NSW there is no specific law against self insemination. However, some doubts still remain as to whether such arrangements may breach the Human Tissue Act 1983 (NSW), which regulates the handling of human tissue. The Human Tissue Act in effect prevents sexually active gay men from donating sperm by requiring the donor to certify on a form that he has not had male-to-male sex for five years. This is because of concerns about the transmission of HIV. This requirement may therefore create problems for gay men who wish to donate sperm. The form is contained in the regulations to the Human Tissue Act, which can be amended. The regulations should therefore be checked for any amendments at the relevant time.

While the Human Tissue Act may apply to private arrangements, this issue has not been tested in the courts. To date, there have been no prosecutions and as such a prosecution seems unlikely. The penalty for signing a false or misleading statement regarding the donor's suitability to donate sperm is $5,500 and/orimprisonment for one year.

Can the donor charge a fee for supplying semen ?

The Human Tissue Act prohibits "trade in human tissue" by anyone other than an authorised provider (such as a clinic). It is therefore illegal in NSW for the donor to charge for providing semen. The penalty for a donor who trades in semen in this manner is a maximum fine of $4,400 and/or 6 months imprisonment. However, it is not illegal for the recipient to cover the cost of medical procedures and other expenses connected to the process of donating sperm.

What are the rights and responsibilities regarding screening for HIV or other health risks?

The relevant medical procedures referred to above should include tests for various infections or diseases, as well as the donor having his sperm count and activity tested to ensure that he is fertile.

The viruses or diseases for which the donor must be tested are set out in the regulations to the Human Tissue Act ("the regulations") and include HIV, Hepatitis B and C and Syphilis. While there is no absolute guarantee regarding the screening of "fresh" semen (as opposed to frozen/stored sperm provided by a clinic) for HIV, the following is the safest possible method to follow. The donor will need to have two HIV tests, three months apart and with no "risk activities" between them - such as unprotected penetrative sex or sharing of injecting drug equipment. If both HIV tests are negative the donor's sperm will be as safe as possible. It is important for the donor to be tested twice because of the "window period" of HIV infection. This is the period when a person may be infected with HIV but the virus cannot be detected by an HIV test. Antibodies to HIV can be detected after three months of infection.

The ideal method of preventing transmission of HIV and other STDs is the method used by clinics, where semen is frozen and stored for six months while the donor is tested and retested to make sure they do not carry transmissible infections. While there is no guarantee that semen is completely safe, instances of HIV transmission due to informal donor insemination have been rare.

The 'Contacts' section in this publication refers to services which provide comprehensive information (including written information) about appropriate and effective screening processes that should be followed when planning to self inseminate with donor sperm.

It is also important to discuss a broad range of health issues with a potential donor so that informed decisions can be made before proceeding with the particular donor. For example, it is advisable to obtain the donor's medical history, including diabetes, allergic disorders, mental illness, and inherited health conditions, such as haemophilia. It will also be useful to know if there is any family history of repeated miscarriages or twins and any family history of breast or cervical cancer which may be relevant in the future if the child is a girl.

The Human Tissue Act requires the person "obtaining or receiving" semen to first get a certificate from the donor attesting to his medical suitability. The certificate should be either in the form set out in the regulations or in a similar form. This should be discussed with a general practitioner when having the relevant tests. The regulations also require the person "obtaining or receiving" semen to keep the medical certificate for a minimum of 10 years.

When donor insemination is carried out in a clinical setting it is clear that the service provider is the "obtainer" of the semen. Where insemination takes place outside a clinical setting it is unclear whether the donor or the mother (or both) are the "obtainers" of the semen. It would therefore be advisable for both the mother and donor to retain copies of the medical certificate. There are penalties of up to $220 for failing to comply with these requirements. The obtaining of this certificate will also protect the donor from the prospect of being sued if the mother contracts a disease for which the donor should have been tested.

Under the Human Tissue Act there is a maximum penalty of $5,500 and/or 1 year imprisonment if a person provides or signs a certificate knowing that it contains false or misleading information.

It is important to note that the purpose of the Human Tissue Act is to set standards for authorised providers of semen. People entering into private or informal arrangements take more risks (both health and legal) in doing so, as they do not have the same recourse to legal redress as people who use a clinic if things go wrong.

Is the issue of homosexuality taken into account by the courts?

In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". The sexuality of the parties may therefore be a factor that the Family Court will consider when making its decision about what is in the best interests of the child. While in the past the Court has refused to grant parenting orders to gay men or lesbians because of their sexuality, there have been recent cases where residence has been awarded to lesbian mothers and gay fathers. Ultimately, it will depend on the individual judge hearing the case, and all the circumstances of the particular case.