Many children in Australia are born through artificial insemination with sperm from donors protected by anonymity. But are they really protected?

Is the sperm donor legally the father?

The Status of Children Act of New South Wales states that if a woman, married or unmarried has a child through artificial insemination from a sperm donor who is not her husband, the donor is presumed not to be the father.

That Act goes on to state states that this presumption is not rebuttable. This means that the presumption that the sperm donor is not the father cannot be displaced even if there is evidence that he was, in fact the father. Usually, the agency enters into a legal agreement not to reveal the father’s identity until the child is over 18. Accordingly, under state legislation, the sperm donor cannot be legally considered as the father, no matter how strong the evidence may be.

High Court case

In 2019, the case of Masson v Parsons, raised new issues.

The court was considering the rights of a man who had donated his sperm to enable a close friend to become pregnant. She was single at the time, and subsequently entered into in a de facto relationship with another woman. His name was entered on the child’s birth certificate as the father, and he took an active role in the child’s life. When he tried to exercise rights in relation to the child under the Family Law Act, the matter ended up in court.

The High Court considered Section 60H of the Family Law Act. In simplified terms, this provides that, where a woman who is married or in a de facto relationship gives birth to a child as a result of artificial insemination, the spouse or de facto partner is deemed to be the parent, and the sperm donor is deemed not to be a parent. That is consistent with the state legislation referred to above. However, that section did not come into play in that case, as the woman was not married or in a de facto relationship at the time of giving birth.

The court found that the sperm donor did have rights as the father of the child under the Family Law Act. As that Act is Commonwealth legislation, the Court found that the Family Law Act prevailed over the Status of Children Act, which is a state act.

The fact that the sperm donor took an active role in the child’s life was a pivotal factor considered by the High Court. The decision implied that the provisions of the Family Law Act relating to the welfare of a child would not apply to a man who has no role other than as an anonymous sperm donor.

Can the donor be liable for child maintenance?

The obligations of a father to pay child maintenance are covered by the Child Support legislation of the Commonwealth. Under that legislation, whether a person is a “parent” of a child born through artificial insemination is determined under Section 60H of the Family Law Act.

As mentioned above, if the woman is married or in a de facto relationship, the sperm donor is deemed not to be the father for the purposes of the Family Law Act and the Child Support legislation. However, the sperm donor would have no way of knowing whether the woman was married or in a de facto relationship, other than by enquiring as to the policies of the agency.

If the mother of the child could prove that the donor was the father, and she was not married or in a de facto relationship at the time of giving birth, she could potentially claim child maintenance from the donor. However, agencies generally agree to keep the identity of the donor secret at least until the child turns 18. From a practical point of view, that should protect donors from any claim for maintenance.

Does the child have rights to the donor’s estate?

The legislation relating to the rights of a child to make a claim on the estate of a deceased parent is state legislation. Accordingly, the Status of Children Act of New South Wales would apply. As stated above, the assumption that the donor is not the father cannot be displaced by even the strongest evidence.

The child would need to show very particular circumstances – for example, previous parenting orders by a Court due to an ongoing involvement in the child’s life by the donor. If the child were recognised by the court in this way,  and if the donor died without a will, the child could potentially be entitled to a share of the estate. Similarly, if the child were recognised in this way and the donor left a will, the child could potentially challenge the will on the basis that the deceased donor should have provided for the child in the will having regard to the involvement in the child’s life,  .

Conclusion

The interplay of state and federal law leaves a somewhat confused picture. It is hoped that this does not discourage potential donors, who are providing a valuable service to the community.

If you or someone you know wants more information or needs help or advice, please contact Stephen Lynch (02) 9923 2321 or slynch@somervillelegal.com.au

or email enquiries@somervillelegal.com.au