What rights do sperm donors have in Australia?

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Recently the issue of parent verses sperm donor was reviewed by the High Court of Australia. In Masson v. Parsons, the issue has been thoroughly contemplated and the Court has issued a clear statement regarding the parental rights of a sperm donor.

The initial argument that the Status of Children Act 1996 prevails, has been put to rest. The Act states that a sperm donor is not a parent unless he is the spouse or the de facto partner of the mother. However, this is inconsistent with Commonwealth Law. And, in instances where state law and federal law are at clashing purposes, the Court has inexplicably stated that Federal law prevails. As such, in this instance commonwealth law takes precedence. 

That being said, under Commonwealth Law a sperm donor can be considered a parent.  However, there are very specific factors that must be met for a person who is considered to be a sperm donor only, to be determined a parent for legal purposes. If these factors are met, then parental rights can be granted to the sperm donor. 

For parental rights to be granted to a sperm donor, the following must be met;

  • The donor must be named the child’s father on the birth certificate
  • The donor must be taking an active role in the child’s life
  • The donor must be providing support toward the child’s well-being and care 
  • In most instances there must have been a pre-understanding that the sperm donor would take an active and ongoing role in the child’s upbringing 

Once these factors are met, a sperm donor can and will be considered a parent with parental rights. As such this means that a man who donates sperm with the understanding, intention and actions of a parent will have parental rights. These rights will include the right to;

  1. Regular visitation and/or joint custody
  2. Make legal decisions on behalf of the child; including educational and medical decisions
  3. Be responsible for the child’s care and well-being; including food, shelter and clothing
  4. Protect the child from harm
  5. Financially support the child
  6. Provide the child with an education
  7. Ensure the child has proper medical care

In most cases a single woman who would like to conceive a child via a sperm donor will use an anonymous donor who has no interest in being present for the pregnancy or involved in the rearing of the child. However, in instances where a woman chooses to use a close friend for the purpose of impregnation, the issue can become more complicated. Even if at the beginning of the arrangement, the parties agree that the donor will not be involved in the child’s life, actions subsequent to the birth can change this understanding. 

In the event that a sperm donor becomes involved in the care and support of a child that is biologically his, and develops and ongoing relationship with the child, the Court could make a determination that the sperm donor has parental rights. Hence, this is an area of law that cannot be depended upon for a consistent answer. As such, if you are thinking of entering into this type of arrangement, either anonymously or with a known participant, it is best to put your agreement in writing prior to the inception and birth of the child. 

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.


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