It is a commonly held misconception that sperm donors in artificial conception procedures (such as IVF) are not “parents” of children born from this technique and, accordingly have no rights. However, the 2013 decision of Groth & Banks found that in specific circumstances, a sperm donor can have parental rights. A recent case of Masson & Parsons has confirmed this position.

While there is State and Territory legislation which, in general terms, preclude a donor in an artificial conception procedure from being a parent (unless they are the partner of the recipient), the Court has expressed section 60H of the Family Law Act 1975 to be an “expansive” provision which may, in some limited circumstances, allow a donor who provided genetic material in an artificial conception procedure to become the parent of that child. The circumstances that must exist for that to occur are as follows:

  • the mother is not married or in a de facto relationship; and
  • there is no other person that would displace the donor as a “parent” in the circumstances of the case.

Parenting orders can be made in these circumstances if the following factors apply:

  • the mother is single (not married or in a de facto relationship) at the time of conception;
  • the sperm donor is capable of being identified;
  • there is evidence that the donor’s genetic material was provided for the express purpose of fathering a child he expected to parent; and
  • it is in the child’s best interests for parenting orders to be made in relation to the donor.

In Groth & Banks, the Court ordered that the sperm donor have equal shared responsibility for the child, to be exercised jointly with the mother. This decision was made even though the sperm donor had signed a waiver form produced by the IVF clinic agreeing that he would have no parental rights to a child created from the artificial conception procedure using his sperm. The Court determined that, in these circumstances, the waiver signed by the donor is irrelevant against evidence that the donor’s genetic material was provided for the express purpose of fathering a child that he expected to parent and further evidence that he actually fulfilled that role once the child was born. Parenting orders were made as it was determined to be in the child’s best interests to have an ongoing relationship with the donor.

An artificial conception procedure does not give a sperm donor an automatic rise to parental rights or obligations in relation to child support. In this case, the donor applied to the Court to be recognised as a “parent” after he agreed to donate sperm to his former partner to enable her to undergo IVF treatment as part of an agreement between the donor and mother for the donor to be involved in the child’s life as a “parent”. In this case, the Court found on the evidence that the donor was present at the birth of the child, visited the child regularly, financially contributed to the child’s support, developed a bond with the child and that it was in the child’s best interests for orders to be made to safeguard the relationships between the donor and the child.

More recently, the decision in Masson & Parsons confirmed the position Groth & Banks and determined that the donor in the artificial conception procedure in that case was a parent. The Court also made orders preventing the relocation of the child by the mother away from the donor.

In both cases, to the Court could have made parenting orders in favour of the donor their as “a person interested in the care and welfare of the child”, even if the donor was not determined to be a “parent” of the child. On the facts of these cases, however, the donors were active in the children’s lives, which led the Court to determine that, in the circumstances of these particular cases, it was in the best interests of each child to have an ongoing relationship with the donor and for that person to be recognised as a parent. As in all parenting cases, it is open to the Court to refuse to make parenting orders if that course is in the child’s best interests even if the donor is found to be a “parent”.

If you are considering using a donor in an artificial conception procedure, it is vital that you consider what you intend to occur after the child is born and you should also ensure that you understand and carefully consider the intentions of the donor. If it is the case that you do not intend the donor to be a “parent” to the child or have an ongoing role in the child’s life, you should consider using an anonymous donor.

If you are considering becoming a known donor, you should similarly ensure that the mother is aware of your intentions regarding the child and whether you wish to have an ongoing role in the child’s life. As confirmed by the above cases, it is open to the donors to make an application to the Court regarding these issues. However, the same could be true in the reverse, with the potential for the mother to seek a declaration as to parentage of the donor.

Without proper consideration of these issues, there is the potential, whether from the donor’s perspective or the recipient’s perspective, for unintended issues to arise if a child is born from the procedure. It is therefore important to consider carefully these issues before the procedure is undertaken and to seek any necessary legal advice.