Parenthood, Sperm Donation and When Things Go Wrong

April 24, 2019

When things are going well, no one wants to think about what to do when something goes wrong.

This year the High Court will hear an appeal questioning the legal parentage of a child conceived by sperm donation. The case first arose when the birth Mother sought to relocate to New Zealand with the child and her de facto partner without the biological Father’s consent. The Mother has been seeking to relocate since 2014 without success.

In 2006, the Father and the Mother, who had been close friends for 25 years, conceived a child using “informal artificial insemination.” The Father stated that he desired to co-parent the child, although the Mother disagrees, saying that she wanted to raise the child with her new partner, “Margaret”, soon after conception. The Court will need to consider the definition of “parent” and what factors need to be weighed in answering that question.

In recent years, there have been many changes in the law, where a non-biological female partner in a same-sex relationship can be legally recognised as a parent. This has further implications for women in same-sex relationships who can both legally be recognised as parents when a child is conceived through IVF or self-insemination.

In the High Court case, the two children, the oldest being the subject of the appeal, refer to the biological father as “daddy”, the biological mother as “Mummy” and the Mother’s partner as “Margaret”. The child lives with her two Mums and regularly spends time with her father and his male partner. Here, the Family Law Act allows parents and any other persons “concerned with the care, welfare and development of the child” to apply for parenting orders, regardless of whether they are classed as parents or not.

A “pre-conception” or “sperm donor” agreement can be very helpful to set out parties’ intentions for the child and the web of relationships that will ensue before a child is conceived. Even if the Family Law Act requires such an agreement to be set aside pursuant to the “best interests of the child”, it can be used as evidence of the parties’ intentions in the event of future disagreements or litigation. Ideally, such an agreement would be filed with the Court as parenting orders while things are still going well, before something goes wrong.

Practically, people are rarely so proactive in such matters. Considering the implications for your relationship with your child and the potential Child Support liabilities, obtaining legal advice before embarking on such an adventure is highly recommended. If you have a query from this article, the family law team at Hutchinson Legal is willing to assist.

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