In an age where many single career focused individuals are opting to become parents at later stages in life, many are turning to IVF and asking for the help of a close friend to assist as sperm or egg donors.

A recent article by Emily Portelli in The Courier-Mail talks about a donor (former lover) secretly helping his former flame to conceive through IVF. It was mentioned in this article how despite signing legal documents stating that he has no claim to the child, and Victorian law not ordinarily considering sperm donors to be the father, he was still found by the court to be the legal father.

Tim Ryan, an Accredited Specialist in Family Law and Director at Quinn & Scattini Lawyers, explained the importance of the decision, including for people in Queensland, and the basis for the decision by Justice Cronin.

“The real matter for consideration was the factual situation of the insemination, birth and subsequent care of the child,” Tim said.

“A subjective examination was undertaken and Cronin J found that the father was a parent to the child and not an anonymous sperm donor who could draw on the protection of the state legislation to maintain that anonymity,”

“A misconception exists amongst many people, in part because of overseas celebrity stories, that as long as a contract is signed waiving parental rights for a sperm or egg donor that there is no potential for that donor to potentially still under law be considered a parent,”

“If the parent is known to either party and the donor has some involvement around the child this gives rise to the courts potentially making a determination that the donor is in fact a parent” he said.

The case written about by Emily Portelli in the newspaper was an unusual situation concerning planned conception. Tim says that “although the mother ultimately argued that the father was a mere sperm donor he was present at the birth, his name is on the birth certificate, and he provided material support. In instances where the donor is known they have parental responsibilities.”

 In this particular case the father was actually seeking parental responsibility and an ongoing relationship with the child. The mother sought to have him excised from the child’s life relying on the state legislation pertaining to sperm donors and the issue of anonymity. The principle used in this case remains the same for when a donor does not want to be considered a parent and the parent they assisted now wants them to be declared a parent.

Tim discusses the issues used by the court for making determinations over whether a man is the father and the circumstances in which Justice Cronin would have made his ruling.

“The main issue requiring determination was whether the ‘father’ should be regarded as a parent within the definition of the Family Law Act or as a ‘sperm donor’ only, as defined under Victorian State Legislation,”

“At the outset, where there is an inconsistency between State and Commonwealth Legislation, the Commonwealth Law prevails (s. 109 of the Constitution). The Family Law Act provides for circumstances regarding surrogacy at Section 60A,”

“The question for the court was whether the particular circumstances of this case warranted the presumption of equal shared parental responsibility of the child (s.61DA(1)),” “The question is also whether or not the ‘biological father’ is a sperm donor only as defined by Victorian Legislation and recognised under the surrogacy provisions of the Family Law Act or something more,”

“In these particular circumstances, the father was pro-active in his relationship with the child and there was no question that he was in fact the father,” Tim said.

The basis of the judgement is fundamental to children’s matters heard in the Family and Federal Circuit Courts applying the jurisdiction of the Family Law Act. The paramount consideration is the best interests of the children (s.60CA). In this circumstance (as always) a subjective approach was taken.

Deciding to have a child is a very important decision for a future parent, particularly when you are using IVF, donors or adoption.