Who can be a Parent? An update on sperm donors and LGBTI parenting

Eales & Mackenzie Lawyers Melbourne

Families come in all shapes and sizes these days.  The nuclear family of the working dad, the stay-at-home mum, and the 2.3 children has gone the way of the dodo and is a thing of the past.  We have single parent families, blended families, rainbow families (ie with 2 mums or 2 dads) and many other varieties, all trying their hardest to be the best mums and dads they can.

For LGBTI parents, their families are planned.  There is no possibility of an accidental or unintended contraception.  With that in mind, for each gay or lesbian couple who decide to become parents the question is – where does the genetic material come from?  How can a lesbian couple access sperm, or a gay couple an egg?

There are options.  Most require a significant financial outlay and take a lot of time to arrange so many people, instead of using official channels like IVF or surrogacy enter into arrangements without governmental oversight – to save money, or because it seems less “sterile”, or because they do not want the intrusion into their private lives which comes with IVF or surrogacy processes.  Plenty of children are born where the parents, and the donors of the genetic material, all knew each other beforehand. The men who provide sperm in these cases are called “known donors”, unlike the unknown donors who provide genetic material in IVF or surrogacy matters.

But even with the best intentions, plans can go off the rails.

This is what happened in the case of Massons and Parsons, which went all the way to the High Court and was decided in the middle of 2019.  In that case the father, a gay man named Robert, agreed with his friend Susan, to privately father a child.  In late 2006 the child (referred to in the judgment as “B”) was born. After the birth both Robert and Susan were listed as parents on the birth certificate.  Sometime after conception, but before B was born, Susan started seeing Margaret and they formed a relationship. Several years later, Susan underwent a second procedure, this time using an official artificial insemination procedure with an unknown donor.  “C” was born and Margaret and Susan were listed on C’s birth certificate as her parents.

Robert gave evidence that he had always wanted to be a father and that he had entered into the original private agreement with Susan before B was born so that he could be a father.  After C was born, he was also involved in her care, and C believed for a long time that Robert was her father. The children called Robert ‘daddy’ and spent a lot of time with him. After many years had passed, Susan and Margaret wanted to move to New Zealand with the children, which Robert wanted to stop.  Whether or not he could stop the relocation was significantly tied up with the question of whether or not he was a parent of the children, given that Susan and Margaret agreed that his role was as nothing more than a sperm donor.

Unfortunately for all the parties involved there is a lot of complicated law around this question:

  • What is the position of a known sperm donor?
  • What is the parentage of a child born during a de facto relationship?
  • Do state laws or federal laws cover this circumstance?

In this case, the High Court agreed with Robert that he was a parent.  The court said that notwithstanding all of the conflicting provisions in the Family Law Act as compared to the State legislation (such as in this case, the NSW Status of Children Act) that the word “parent” has primarily, its ordinary meaning and that in this particular case, Robert was B’s parent.

This finding relates to Robert, and this case only.  The court said (at paragraph 55)

“It is unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word ‘parent”.

What all this means is that if you are considering entering into an arrangement where you are looking at a known donor, or are considering becoming a donor to some friends, it is important to, right from the outset, make it plain and clear what everyone’s intended roles are going to be.  This is particularly important because often it is friends who decide to embark upon arrangements with known donors – friends who may have unspoken assumptions about what the other party wants or who rely upon the fact of their friendship to smooth over any potential areas of disagreement.  Susan and Robert had been friends before the Family Court litigation destroyed their relationship. You should seek expert advice about your rights and obligations – and those of the other parents – before embarking on the known donor pathway to parenthood. Please contact Gordon Ainger for further information about this challenging area of family law.

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