Many people including same sex couples and single women may wish to seek the assistance of a sperm donor to enable them to start a family. Important consideration needs to be given to the role of each person involved in the artificial conception process and as to the role it is intended that each person play in the life of the child to be conceived. Whatever the scenario may be, there are legal complexities that should be carefully considered, and legal advice is recommended.
Do you need a sperm donor agreement?
Advances in technology and legislative changes including recognition of same sex marriage have seen an increase in the number of children conceived through artificial conception procedures. Many people including same sex couples and single women may wish to seek the assistance of a sperm donor to enable them to start a family. Important consideration needs to be given to the role of each person involved in the artificial conception process and as to the role it is intended that each person play in the life of the child to be conceived. Whatever the scenario may be, there are legal complexities that should be carefully considered, and legal advice is recommended.
There is a difference between “parentage” of a child and “parenting”. Parentage means the determination of whether a person is the parent of the child. Parenting is the process of raising and educating a child from birth until adulthood.
Status as parents
In South Australia there are two statutory frameworks that need to be considered in relation to children born as a result of artificial conception procedures – the Family Law Act1975 (Cth) and the Family Relationships Act 1975 (SA).
The term ‘parent’ is not defined in the Family Law Act.
Under the Family Law Act where a child is born to a woman as a result of an artificial conception procedure and the mother has a partner (either married or de facto) at the time of the procedure who consented to the procedure then the child will be a child of the mother and that “intended parent”.[1]
Where a child is born to a single mother, the question of whether the sperm donor is the father is considerably more complex. Section 60H of the Family Law Act does not prima facie exclude a sperm donor from possibly being a parent as would be the case for a mother with a partner.
In contrast, under the Family Relationships Act (SA) if a woman becomes pregnant in consequence of a fertilisation procedure and a man (not being the women’s spouse, or if she is in a qualifying relationship, her partner) produced sperm used for the purposes of the procedure then for the purposes of the law of the State, the man –
will be conclusively presumed not to have caused the pregnancy; and
will be taken not to be the father of any child born as a result of the pregnancy.
The High Court decision in Masson v Parsons & Ors [2019] HCA 21 (“Masson”) considered boththe provisions of the Commonwealth and State law in considering similar provisions under the Status of Children Act 1996 (NSW).
The High Court found that Mr Masson (the man who donated his sperm to a woman who was single at the time of the conception procedure) was a ‘parent’ of the child within the meaning of the Family Law Act. The Court held that section 60H of the Family Law Act was not exhaustive of the circumstances in which someone may be deemed a parent. Masson is now the leading case in this area of law. The factors the court considered in making this determination are discussed in more detail later in this article.
In determining whether a sperm donor is a parent of a child born to a mother, careful consideration of a range of factors is required, including the intentions of the mother and sperm donor, whether the sperm donor was known to the mother and who is listed on the birth certificate.
Presumption of Parentage and the Child’s Birth Certificate
There are presumptions of parentage under the Family Law Act.[2] Most commonly in artificial conception matters, this presumption arises when a person’s name is entered on the child’s birth certificate as a parent.[3]
It is essential that all parties involved understand and record their intentions in relation to the parents to be recognised on the birth certificate, currently this can be only two people.
Do you have to be found to be a parent to have a relationship with a child?
The Family Law Act does not restrict applications for parenting orders to only those persons who are a ‘parent’ of a child. If a person can demonstrate that they are a ‘parent’ of the child, then there is a presumption as to parental responsibility.[4]
Under section 65C of the Family Law Act however, a parenting order can be applied for by a parent or grandparent or by
“…any other person concerned with the care, welfare or development of the child”.[5]
A parenting order may deal with a range of issues such as to whom a child is to live and spend time with, the allocation of parental responsibility, the communication a child is to have with another person or persons, maintenance of a child and any other aspect in relation to the care, welfare, or development of the child.[6]
Does a Sperm Donor Agreement assist to define parentage or to obtain parenting orders?
What is evident from recent case law in the area[7] is that the intention of the parties at the time of conception and the actions which follow after the birth of the child are significant factors taken into consideration when disputes arise as to parentage and potential parenting orders.
When embarking on the process of artificial conception, it is recommended that parties enter into a Sperm Donor Agreement prior to conception.[8] This is particularly so if the birth mother (and/or her partner) does not want the sperm donor to be considered a parent of the child or if the donor intends to be a parent but will not be registered on the birth certificate.
Case scenario
Tim and Anna are close friends. Anna is 37, single and seeks to have a child of her own. Tim is 36, married to Lisa. They have two children. Tim and Lisa have agreed Tim can donate his sperm to Anna for her to have a child provided Tim has no legal status as a parent. Tim wants a level of protection to ensure he will not be a parent required to pay any form of child support to Anna for his biological child. They are also concerned about potential claims on Tim’s estate if the child is legally found to be his child.
What guarantees can be provided to Tim?
If parties enter into a Sperm Donor Agreement this will set out in writing the parties’ intentions and understanding of roles each party will have in the child’s life, including Tim’s wife Lisa. A Sperm Donor Agreement can encompass a range of issues including, for example:
Tim’s involvement in pregnancy, appointments and scans;
What will be Tim’s role in the child’s life;
Whether the parties intend Tim will be a parent or a donor;
What will Lisa’s role be in the child’s life;
When will the child be told about their conception;
The upbringing of the child once born;
Provisions around dispute resolution in the event an issue arises in the future.
In our case scenario, the Sperm Donor Agreement would seek to identify Tim as a donor only and not a parent of the unborn child. The intention of the parties would be to absolve Tim from legal, financial and other parental responsibilities in relation to the child to be conceived and to seek to waive his rights to obtain orders under the Family Law Act 1975.
Sperm Donor Agreements operate to provide evidence of the intention of the parties to the artificial conception procedure at the time they entered into the procedure. Although they are unable to legally define a person as a parent or not a parent of a child the evidence of the intent of the parties can be very significant in any subsequent legal determination of the status of a party as a parent or otherwise. By way of example, in our scenario ifTim decided he now wanted to have a parenting role in the child’s life once the child was born, a signed Sperm Donor Agreement would be a crucial piece of evidence Anna that could produce as evidence of the intention of the parties at the time the child was conceived. A written agreement setting out the parties’ intention of Tim’s involvement in the child’s life, entered into pre-conception is far more useful than a “he said, she said” understanding, or interpretation of a verbal agreement reached between the parties.
If we flip the scenario, and say Tim always planned to play a more significant role in the child’s life – such as spending time with the child during the week and on weekends, attending the child’s schooling events and involving the child with his family then is a Sperm Donor Agreement recording this worth anything?
What can be discerned from the recent case law is that actions pre-conception, during pregnancy and following the child’s birth will be taken into consideration by the Court when looking at donor disputes.[9] In some cases, a sperm donor has been determined by the Court to be a parent of the child born of artificial insemination.[10]
In cases where a sperm donor has been considered to be a parent the relevant factors have included the following[11]:-
A donor always held and continued to hold the expectation that he would be involved with the child.
The parties jointly informed others that the birth mother was pregnant, and the donor was the biological father.
The parties discussed the naming of the child.
The birth mother indicated that following the birth of the child the donor and his family would be actively involved with the child.
The parties discussed the donor’s level of involvement with the child and the donor indicated that he wanted visits and an opportunity to baby sit.
The donor was registered on the child’s birth certificate.
The donor gave his genetic material on the express or implied undertesting that he would be a parent of the child.
The donor cared for the child financially and emotionally.
The child identified with the donor as her father and referred to him as “daddy.”
In our scenario, if a determination was made by a Court that Tim was a parent of the child, and a paternity order was made this would enable him to be registered on the child’s birth certificate. Tim would then have obligations as a parent for child support and provision for a child in the event of his death.
An order that Tim was a parent of the child would not automatically mean that Tim would be granted parenting orders, but he would be entitled to apply for them under the Family Law Act.[12] The Court’s paramount consideration in making parenting orders is to make orders that are in the best interests of the child.
The case law in this area is evolving and changing at a rapid pace. If a Sperm Donor Agreement has been signed by the parties which clearly sets out their intentions and a later dispute arises, the Agreement can become an important piece of evidence that the Court will consider in determining whether the donor was intended to have a more significant role in the child’s life than being merely a donor. A clear, concise and prescriptive Sperm Donor Agreement that confirms each party has obtained legal advice and explains the roles each party is to have in the child’s life, will give parties a greater level of clarity as to intention and hopefully avoid future disputes about parentage or involvement of a donor in a child’s life.
There are also qualified fertility counsellors to assist parties explore these issues. All parties considering an artificial conception procedure should consider accessing counselling together to talk through their expectations and intentions.
We often work with fertility counsellors to provide a comprehensive service for people before they enter into a legal agreement. This should also be part of the overall preparation by parties to embark on this complex but exciting journey of assisted conception and parenthood.
Adelta Legal is LGBTIQ+ friendly and are proudly listed as a legal service in the Rainbow Directory SA (www.rainbowdirectorysa.com.au).
