The Rules Of Donor Sperm And The Rights Of The Donor

In 2011, a Melbourne same-sex couple conceived a child after their mutual friend donated his sperm to them. The parties all signed a Sperm Donor Agreement prior to conception but difficulties arose once the child was born and the sperm donor requested to have a greater role in the child’s upbringing.

Under the Family Law Act, the two female respondents in this case were the legal parents of the child and the sperm donor was not a parent of the child. Despite this, the sperm donor sought equal shared parental responsibility and that the child spend time with him on an increasing and graduated basis.

The Family Law Act allows parents and any other persons “concerned with the care, welfare and development of the child” to apply for parenting orders. In the present case, the court made parenting orders that granted the two female respondents sole parental responsibility for the child but also provided that the child spend time with the sperm donor.

Many single women and couples who are unable to conceive naturally enter into Sperm Donor Agreements without considering the enforce-ability and other potential legal ramifications of the agreement. In Australia, informal Sperm Donor Agreements are not necessarily binding. It is best practice for any informal agreement to be finalised by the Court by way of parenting orders to avoid complications.

Sperm Donor Agreements typically seek to absolve the donor from legal, financial and other parental responsibility and seek to waive the donor’s right to custody or guardianship. But as it has been demonstrated, these agreements can be vitiated and the court can make contrary orders if it is in the child’s best interests.

In this context, it is even conceivable that a donor might be declared a legal parent and subsequently required to pay Child Support. There is currently a test case before the High Court of Australia which will determine whether sperm donors who are actively involved in the lives of children born out of their donation ought to be considered a legal parent.

If you are concerned about the enforceability of your Sperm Donor Agreement or need assistance drafting one or applying to the court for parenting orders, our family lawyers in Melbourne can help.