Is the sperm donor regarded as the legal parent?

The Status of Children Act 1996 (NSW) and the Family Law Act 1975 (Cth) set out who is the parent of a child. They provide that where the sperm donor is not known to the LGBTIQ couple, the donor will not be regarded as a legal parent of the child.

If the couple know the donor, the couple will be the child's legal parents where the requirements set out below are met:

  • The couple must have been living in a de facto relationship or have registered their relationship at the time of conception
  • The child must have been conceived by an insemination or IVF procedure using donor sperm; and
  • The co-parent must have consented to the procedure that led to their partner's pregnancy.

The donor will not be a legal parent of the child, regardless of whether or not the donor is named as the parent on the birth certificate or any other document.

However, it is not settled whether or not a known sperm donor will be the legal parent of a child conceived by parent/s who do not meet these requirements. The Family Court decision of Groth v Banks (2013) suggests that a known sperm donor can be a legal parent of a child (in addition to the birth parent) where a LGBTIQ couple were not in a de facto relationship at the date of conception. Where this may be the case, it is important that all parties seek independent legal advice.

Child Support

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) (see B v J (1996)). A donor is also not considered a 'parent' for the purposes of child maintenance under the Family Law Act (see Re Patrick (2002)). A donor therefore has no legal liability to pay child support.

Passports

Under the Australian Passports Act 2005 (Cth), before a passport may be issued to a child under 18 years who has never married, the written consent of all persons with parental responsibility for the child is needed. Alternatively, a passport can be issued if a court order is made permitting the child to travel internationally. If neither of these conditions is met, there is provision for the Minister of Foreign Affairs to issue a passport in special circumstances. For more information go to www.passports.gov.au/Web/Newppt/Consent.aspx.

Can the donor be prevented from forming a relationship with the child, or having contact with the child?

Under the Family Law Act a person concerned with the 'care, welfare or development of the child' can apply to the court for parenting orders. The courts have accepted that this can include a sperm donor. A co-parent cannot prevent a donor from making an application.

Where LGBTIQ parents and a sperm donor agree on parenting arrangements, the parties can apply to the Family Law Courts for parenting orders made with the consent of both parties (consent orders). An application for consent orders can be made after the child's birth. If the orders are made they will be binding on the parties. A consent orders kit can be located in the 'Forms' section on the Family Court's website. For more information go to www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting/ifyou-agree-on-arrangements/.

If parties do not agree on parenting arrangements, a court will decide what parenting orders to make following an application to the court. Parenting orders can deal with a variety of issues, including:

  • Who will have parental responsibility for a child;
  • The person/s with whom a child is to live;
  • The time a child is to spend with other persons;
  • The communication a child is to have with other persons; and
  • Any aspect of the care, welfare or development of a child.

In making parenting orders, the court's paramount consideration is the best interests of the child. The court will consider a number of factors to determine what will be in the child's best interests:

  • The benefit to the child of having a meaningful relationship with both of their parents;
  • The need to protect the child: from physical or psychological harm, being subjected to or exposed to abuse, neglect and/or family violence;
  • The views of the child, and any factors (such as the child's age, maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
  • The nature of the child's relationship with each parent and with any other person;
  • The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child;
  • The extent to which each of the child's parents has fulfilled (or failed to fulfil) their obligation to maintain the child;
  • The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either parent or any other child, or their separation from either of their parents or any other person (such as a grandparent or other relative) with whom they have been living;
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
  • The capacity of each parent (or any other person) to provide for the needs of the child, including emotional and intellectual needs;
  • If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order will have on that right;
  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
  • Any family violence involving the child or a member of the child's family;
  • If a family violence order applies, or has applied, to the child or a member of the child's family, any relevant inferences that can be drawn from the order, taking into account the following:
    • (i) the nature of the order;
    • (ii) the circumstances in which the order was made;
    • (iii) any evidence admitted in proceedings for the order;
    • (iv) any findings made by the court in, or in proceedings for, the order;
    • (v) any other relevant matter;
  • Whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child, and
  • Any other fact or circumstance the court thinks is relevant.

The orders that a court makes will depend on the specific circumstances of the case. There has been cases where donors known to LGBTIQ parents have applied for parenting orders. Previous court decisions do not necessarily indicate how a court would decide the case at hand. It is important to seek legal advice if issues arise regarding the contact a donor has with a child and/or their ability to make decisions for a child.

In Reiby v Meadowbank (2013) a judge of the Federal Circuit Court made orders that lesbian parents had parental responsibility for their donor conceived child. Orders were also made that the child was to live with the parents, but spend time and communicate with the sperm donor by agreement between the parties or according to the schedule set out by the Court. The judge said that these orders would allow the child to benefit from knowing and having a genuinely meaningful relationship with the donor, while at the same time recognising that her primary family consisted of the child's lesbian parents. The donor's application for equal shared parental responsibility was unsuccessful. In part, this was because the presumption in the Family Law Act that it is in the child's best interests for the child's parents to have equal shared parental responsibility was held to apply to the child's legal parents (the lesbian parents) and not the sperm donor.

Does the donor have any rights regarding the child?

The fundamental focus of the Family Law Act is on the rights of the child, rather than the rights of parent(s) or other people. As a result, no person has automatic rights regarding a child.

A donor can apply to the Family Law Courts for parenting orders as a person concerned with the 'care, welfare or development of the child'. For a discussion of this, see the above section at:

  • Section 5: Sperm Donors - 'Can the donor be prevented from forming a relationship with the child, or having contact with the child?'

What is the legal status of a written agreement between the donor and the birth parent and co-parent?

Written agreements regarding parties' rights and responsibilities in relation to a child are not legally enforceable in Australia. They can however be useful as evidence of the parties' intentions.

The Family Court in Re Patrick (2002) strongly recommended that parties enter into written agreements prior to conception and/or birth. In this case, the Court found that the parties had intended, at conception, for the donor to be significantly involved in the child's life, and that ongoing contact with the donor was of benefit to the child. The Court ordered the donor could have contact with the child on a gradually increasing basis.

However, the Federal Circuit Court in Reiby v Meadowbank (2013) reaffirmed that the best interests of the child is the paramount consideration. The judge found that any agreements the parties may have made before the proceedings should not influence a judge's decision; and that the best interests of the child are paramount when deciding on parenting orders.

Despite the uncertain position of written agreements in court actions, it is a good idea for parties to consider seriously the need for an agreement dealing with the issues surrounding the donor's role. The process of making such an agreement can itself be very valuable as a means of assisting parties to think about and articulate their needs and/or expectations in regards to parenting. This may help to prevent disputes from arising in the future.

If you are considering drafting a written agreement, you can contact the Inner City Legal Centre by telephone at 02 9332 1966 to make a face-to-face or telephone appointment to speak with a lawyer. Please note that the Inner City Legal Centre will only be able to advise one party to a proposed agreement.

Are self-insemination arrangements legal?

In NSW there is no law against self-insemination. Sperm donation through assisted reproductive technology treatment providers (such as fertility clinics) is governed by the Assisted Reproductive Technology Act 2007 (NSW). This Act sets the standards for these providers.

However these standards may not apply to self-insemination arrangements, and so persons entering into these arrangements take more health and legal risks. If things go wrong, they will not have the same recourse to legal redress as those who use an authorised provider.

Under the Assisted Reproductive Technology Act, donors are required to give information to assisted technology treatment providers about their medical and genetic history. There are significant penalties for giving false or misleading information. This requirement applies only when the procedures are provided for a fee, reward or in the course of a business (whether or not for profit).

Can the donor charge a fee for supplying semen?

It is illegal in NSW for a donor to charge for the provision of semen. 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 six months imprisonment.

However, it is legal for recipients to cover the costs 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 infections?

During the sperm donation process, a donor should be tested for various infections and diseases. The Assisted Reproductive Technology Act and associated regulations set out the infections and diseases that a donor must be tested for. They include HIV, Hepatitis B and C, and Syphilis. In addition a donor's sperm count and activity should also be tested to ensure they are fertile.

The practices of clinics are specially formulated to prevent the transmission of HIV and other infections. Semen is frozen and stored for three to six months while the donor is tested and retested to make sure they do not carry transmissible infections.

Semen obtained as part of a self-insemination arrangement may not undergo the same level of testing. Prior to self-insemination it is recommended that the donor have two HIV tests three months apart, with no 'risk activities' engaged in during the time between the tests (e.g. unprotected penetrative sex, sharing of drug injection equipment). It is important for donors to be tested twice due to the existence of a 'window period' within which a person's positive HIV status cannot be detected by a HIV test.

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 that donor. For example, it is advisable to obtain the donor's medical history, including information on their experience of diabetes, allergies, mental illness, and inherited health conditions, such as haemophilia. It is useful to know if there is any family history of repeated miscarriages, twins, and breast or cervical cancer.

Is there anything stopping gay and bisexual men from donating sperm?

Under the Assisted Reproductive Technology Act and its regulations, clinics must abide by the National Health and Medical Research Council's ethical guidelines on assisted reproductive technology (ART). These guidelines provide that clinics should not accept donations from people at an increased risk of transmissible infections.

Gay and bisexual men who do not practice safe sex with their sexual partners may be at increased risk of HIV infection. Some clinics may not accept sperm donations from men who engage in male-to-male sex. Other clinics may accept donations from gay and bisexual men but conduct more extensive testing procedures. For example, the Assisted Reproductive Technology Act requires that all donors provide blood, urine and semen samples to be tested for genetic and infectious diseases. The samples are then quarantined for a period of 3-6 months before the semen can be used. However, if the donor has engaged in male-to-male sex, the sample could be held for a longer period, with some clinics holding samples for up to 12 months. As clinics approach donations from gay and bisexual men differently, it is important to ask the individual clinic about their procedures before making a donation.

Will the child be able to find out the identity of the donor?

Clinics are required under the Assisted Reproductive Technology Act to obtain identifying information from donors, including:

  • their full name;
  • residential address;
  • date and place of birth;
  • ethnicity; and
  • relevant medical history.

Clinics also collect non-identifying information (year of birth and sex) about the donor's children and any other offspring of the donor. All of this information is entered onto the Central ART donor register.

With regards to self-insemination arrangements, if fertility clinic services are used to treat the birth parent or store the sperm, the donor is required to consent to their information being listed on the Central ART donor register.

A person conceived through ART treatment can apply to the Central ART donor register for identifying information about the donor once they have turned 18. They can also obtain both non-identifying information about the donor's children or offspring, and identifying information where the donor's children or offspring consent.

The parents of a child under 18 conceived through ART treatment may be able to obtain identifying information about the donor in the event of a medical emergency or life threatening situation.

Donors can obtain non-identifying information (year of birth and sex) about their offspring born as a result of ART treatment by making an application to NSW Health. Identifying information can be provided to a donor where the donor's offspring gives their consent after turning 18, or without their consent in special circumstances.