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Is a sperm donor legally a ‘father’?

The High Court recently decided that a sperm donor could legally be considered a father and have input into parenting arrangements. However, the particular circumstances in the case brought about the decision and it is not automatic that a sperm donor would be considered a father.

The particular facts…

Under the Family Law Act, if a child is born through artificial insemination while the woman was married or in a de facto relationship then both the female and male are parents of the child. However, the High Court said that a sperm donor could be considered a father of a child even if he was not in a relationship with the female.

This was decided for the following reasons:

  • the father donated his sperm to the friend on the understanding that he would be the child’s parent, that he would be entered on the child’s birth certificate as the father;
  • after the child was born, the mother entered a relationship with another woman and they raised the child together;
  • the father played a very active role in the child’s life;
  • the father provided financial support and had a role in the health, education and general welfare of the child;
  • the child even called the father, “Daddy”.

The reasons for the decision…

The High Court decided that the sperm donor was a father of the child and made the following comments:

  • by being so involved in the child’s life, he was considered a father;
  • if he had simply donated sperm and not been involved in the child’s life, he wouldn’t have been considered a father of the child;
  • if the mother had been in a relationship with her new partner before the child was born, then the father would never be considered a father of the child. This was a quirk of the law.

The mother had wanted to move overseas with the child but the effect of the court order was that the mother could not move with the child without the consent of the sperm donor. This was likely not what the mother had envisioned when she accepted the sperm donation.

What should you do next?

If you are considering a sperm donor situation, you should seek legal advice about your rights and the sperm donor’s rights.

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