Can my sperm donor have parental rights?

These days it is not uncommon for single women or same a sex couples to seek assistance to start a family. Whilst some turn to adoption, others use means of artificial insemination via a sperm donor. Some use formal avenues such as Sperm Banks whilst others call on friends or other known individuals for a private and informal artificial insemination process.

What many fail to do, is give adequate consideration to the ongoing legal consequences of conception by artificial insemination.

It has become increasingly more apparent in cases, that despite perhaps initial intentions to remain a silent role in the conceived child’s life, many men later wish to take a more active role. They wish to become ‘Dad’ and to realise the parental responsibilities which go with that title.

Until last year, a sperm donor did not have parental rights, however, the decision of Masson v Parsons [2019] HCA 21 changed this position. In this case, the sperm donor father was awarded shared parental responsibility for the child. This case changed the legal path for many families and made the process of choosing a sperm donor, that much more important.

In Masson v Parsons the father (Mr Masson) was a close friend to Ms Parsons. He provided her with semen for her to conceive a child. Mr Masson believed he would be involved in the child’s life and further, the child had his name on her birth certificate. The child lived with Ms Parsons and her same-sex partner. In this case, Mr Masson provided some financial support and assisted with education and general the welfare of the child. The mother wanted to relocate the child to New Zealand with her partner. Mr Masson filed proceedings to restrain this relocation. Mr Masson was successful in his application. Ms Parsons sought the decision be overturned on the basis that a child conceived by fertilisation is not a ‘parent’. Mr Masson then appealed to the High court and was successful in being categorised as a parent.

The primary fundamental principle of family law is the best interests of a child. This is the paramount consideration for a court when determining parental rights. With this principle, comes a presumption of shared parental responsibility for a child. So whilst the case of Masson v Parsons did not open the door to all anonymous sperm donors to gain ‘rights’, in circumstances where a friend or known donor has been used, the area has become far less clear.

The court will give consideration to factors such as:

  • Is the donor named on the birth certificate?
  • Does the child call the donor ‘dad’?
  • How much involvement does the donor have in the child’s life? Physically? Financially? Emotionally?

The result of this case is, if a person behaves in the manner of a parent and with the intention of being a parent, then parental responsibility can be applied.

It should also be noted that s60HA of the Family Law Act 1975 states that:

“A child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent).”

So if you are in a same-sex relationship and a child is born during that relationship, then regardless of who carried the child, both parents will be awarded parental responsibility.

If you would like some advice on the legal repercussions of artificial insemination, then please contact our office to arrange an appointment with one of our friendly solicitors.

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