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Since the High Court Case of Masson and Parsons & Ors (2019), it is now vital for single women, rainbow families and heterosexual couples using sperm donors to have a clear agreement in place before using a sperm donor.
Where there is no clear agreement about what your intentions are, and what role the ‘donor’ will have, that donor could end up being found to be a ‘parent’ and have Orders made regarding the child.
Here are five essential questions to consider before asking someone to donate.
Who will be a parent?
This is the most fundamental question you need to answer before you even consider going forward with a donor arrangement. You, the donor, your partner (and anyone else involved) need to be very clear on who you intend to be a parent.
The decision should be clearly documented and agreed to by all parties (see ‘Do you have a Donor Agreement?’ below).
Once you know the answer to this question, it will likely inform your answers to the other questions that need to be considered.
Will they have a relationship with the child?
If you answered ‘yes’ to wanting them to be a parent, then the likely answer to this question will be ‘yes’ as well. Again, if this is the intention, it should be clearly documented.
Although the Court cannot make Parenting Orders about an unborn child, the Courts have held that the intention of all parties at the date of conception is an important consideration as to whether someone will be deemed a ‘parent’ later on. This is where a Donor Agreement is vital.
What if the birth mother has a spouse or domestic partner?
If you are married or part of a de facto couple, the donor is less likely to be a ‘parent’. However, the Courts have not given clear guidance on this issue, so a Donor Agreement is still important.
If you do not have a partner, there is an even greater risk that the donor may be found to be a parent under the Family Law Act.
Whose name should go on the birth certificate?
If you want them to be a parent, then yes, their name should go on the birth certificate. If you do not want them to be a parent, their name should not go on the birth certificate.
Being on the birth certificate (or not being on the birth certificate) can have consequences. Before you decide either way, you should seek legal advice about your circumstances.
If the donor is not listed on the birth certificate at birth, this does not prevent them from being included on the certificate sometime in the future, or from later seeking Orders about the child.
Do you have a Donor Agreement?
Before making the big decision to use a sperm donor, you need to know what your rights and obligations are.
A Donor Agreement is a document that provides a comprehensive record of the parties’ intentions. It is put in place prior to conception and is a very important document. It is important that each of you have independent legal advice. If you have a partner, they will also need separate legal advice.
It is also important that once you have a Donor Agreement, you stick to it. Even if a donor is found not to be a parent, if they have a relationship with the child, there is a chance they could still seek Orders from the Court for time with the child in the future.
Where to next?
Regardless of your answers to the above, if you are using a sperm donor, do not do it without independent legal advice regarding your individual circumstances and a written Donor Agreement signed by all parties.
This is a very complicated area of the law and it is changing. Yes, there are risks involved, but with the correct legal advice and guidance, it can be a worthwhile and life-changing experience.
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