Parentage Rights

The High Court recently handed down a landmark decision regarding parentage rights which is expected to impact thousands of couples and single women whose children were conceived with known sperm donors.

The case centered around a male and female who had been friends for over 10 years before deciding to “privately and informally” conceive a child in December of 2006.  The donor father was listed as the child’s Father on the birth certificate, was involved in the child’s life from birth and developed a close relationship with her, including overnight visits, attendances at school and being referred to as “daddy”.

The Mother subsequently had a second child with her partner and sought to relocate with her to New Zealand on a permanent basis.  When the Family Court prevented the relocation, the Mother appealed arguing that the Family Court Judge had not considered the NSW Status of Children Act 1996 which states:

If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.

The section goes on to say that it is irrebuttable.

The full Family Court agreed and on appeal by the Mother, the “Father” was presumed not to be the legal parent.

The Father lodged a further Appeal in the High Court and both State and Federal Attorney – Generals filed notices to intervene wanting to ensure that state laws were applied in the circumstances.

The majority in the High Court found that there was no reason to doubt the original decision made by the Family Court Judge, that the donor Father was in fact the parent of the child.  It was found that the question of parentage in artificial conception cases is dependent on whether the person is a parent of the child according to the ordinary, accepted English meaning of “Parent”.

In this case the donor parent was not just a donor – but had been actively involved in the life of the child and therefore met the definition of a parent under the Family Law Act 1975.

While the media headlines following the Judgment would have us believing that any “sperm donor” would now have the same rights as a biological parent, this is clearly not the case.

As a Family Lawyer it is clear to me that in coming to the decision, the High Court applied a common sense approach by applying the fundamental principle that the best interests of the child be a paramount consideration when determining parenting matters and in doing so, recognised that any person – including a sperm donor – who is found to take on a parental role should share in the responsibilities of raising a child.

What this does mean is any person considering using a donor or being a donor should take steps to ensure that they clearly communicate with the Mother what the expectations are and the role, if any that they want to play in the life of the child.