Are sperm donors parents?

They say it takes a village to raise a child.  However in Australia, a child can only have two legal parents. When a child is born, their legal parents are listed on the birth certificate and registered with Births Deaths and Marriages. But what happens if there is a third “parent”?
If you are thinking about using donor sperm to conceive a child, this is one of the questions that needs to be considered.

Who goes on the birth certificate?

The law now recognises non-biological parents of a child born via a donor.

For same-sex female couples, the biological mother is listed on the birth certificate. The non-biological mother will also be listed on the birth certificate so long as the parties were in a relationship (whether married or de facto) at the time of conception, and the non-birth mother consented to the procedure that resulted in the pregnancy.

This is the same as the legal status of heterosexual parents who use a donor egg or sperm to conceive.

What about the donor?

Under Australian law, donors are not recognised as parents, and cannot be listed on a child’s birth certificate. It is now considered a “false declaration” to list a donor, even a known donor, as a parent on a child’s birth certificate. This is the case even for single women.

It is important to note that in order for a person to be considered a “donor”, conception of the child must have occurred through a medical procedure, and cannot have occurred through intercourse. If a child is conceived through intercourse, the two biological parents are considered, at law, to be the parents of that child.

What if the donor has a relationship with the child?

Often, couples decide to use a known donor to conceive their child. These known donors are often friends or siblings of the non-biological parent. Complications can arise when there is a disagreement between the listed parents and the known donor. There is controversy as to whether the donor can be recognised as a “parent”.

Mason v Parsons and Anor

In 2019, the High Court ruled that in certain circumstances sperm donors may be recognised as the legal parents of children born of their genetic material via artificial reproductive technology. These circumstances are where:

• The mother is not in a married or de facto relationship at the time of the conception; and
• The sperm donor should properly be regarded as the child’s parent according to the ordinary meaning of the term “parent”.

This takes into account the facts of the case, such as the intentions of the parties at the time of conception, and the role the donor has played in the child’s life.

The decision in 2019 overturned the previous decision of the Full Court of the Family Court of Australia.

Facts of the case:

1. The child, ‘B’, was born to the respondent, Ms Susan Parsons (the biological mother) and the appellant, Mr Robert Massons (the donor).
2. Robert was listed as a parent on B’s birth certificate and has played an active role in B’s life since birth.
3. B calls Robert “daddy”.
4. At the time of B’s conception, Susan was not married or in a de facto relationship, although she had commenced a relationship with Ms Margaret Parsons (the second respondent). Susan and Margaret’s relationship is now de facto in nature.

The question the court needed to consider was whether Robert is B’s legal parent?

In 2018, the Full Court of the Family Court of Australia found that Robert was not B’s legal parent. The Full Court found that regardless of the parties’ intentions at the time of conception, Robert’s ongoing role in B’s life resulted in him being considered a parent.

In 2019, an Appeal was made to the High Court, who overturned the Full Court decision. The High Court found that the Full Court had incorrectly applied the Judiciary Act when considering the application of the NSW Status of Children Act.

The High Court found that the effect of s60H of the Family Law Act was to expand, rather than restrict, the range of persons who may qualify as a parent of a child born via an artificial conception procedure. What this means is that even though s 60H of the Family Law Act does not specifically mandate that sperm donors are recognised as parents, it does not exclude them from being recognised as such, where they fall within the ordinary meaning of ‘parent’.

The High Court held that the ordinary meaning of the term ‘parent’ is ‘a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand’.

In this case, Robert was found to be a parent within the ordinary means of the term on the basis of the following facts:

• He provided his semen on the understanding that he would be the child’s parent.
• He was registered as B’s parent on the birth certificate.
• He has provided financial support.
• He has been involved in B’s care since birth.
• He is regarded by B, and by the family’s acquaintances as B’s father.

Does this apply to everyone?

The simple answer is no. It is possible that where a sperm donor does no more than provide his semen to facilitate an artificial conception procedure he would not fall within the ordinary meaning of the word parent. In this case, the donor would not be recognised as the parent of the child born as a result of the procedure. This would be the case even where the mother has no other partner at the time of conception.

This matter remains open to courts to decide on the facts of any particular case.

What should I do?

As a result of this decision, many people wanting to conceive using donor sperm may be more likely to use an anonymous donor. Certainly, from a legal standpoint, there is far less risk of an anonymous donor, firstly wanting to be a ‘parent’, and secondly, a Court finding they are a parent. The only way to be absolutely certain a donor could not later seek to be defined as a ‘parent’ is to use an anonymous donor and have no contact with the donor.

However, many people are more comfortable with the donor being known to them, and the child having a relationship with the donor.

It is this grey area which is difficult for the law to regulate.

We advise that all agreements regarding the donation of sperm for the conception of a child should be formalised in writing in a donor agreement. This agreement would state the intentions of the parties as to the role the donor will have in the child’s life. Although a donor agreement is not enforceable by the Court, it can be an important piece of evidence if a dispute arises.

We are here to help you. Should you require any further advice about the legal implications of using a sperm donor, or entering into a donor agreement, please contact one of our team members on 03 9070 9839 or info@sagefamilylawyers.com.au