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Sperm donors

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.

When is a sperm donor a parent?

The high court has ruled that a man who donated his sperm to a good friend is legally the father of the child that was subsequently conceived.

As such, he was successful in obtaining an order from the court preventing the mother and her wife from moving with the child permanently to New Zealand to live.

The father and mother had been friends for 25 years. The father privately donated his sperm to the mother on the understanding between them that he would be involved in the child’s life.

The child was conceived in 2006 and the father maintained a constant relationship with her. He shared in her care from birth and continued that involvement. That included changing her nappies, attending school events and taking her to school activities.

He also treated his daughter’s younger sister as his own even though he was not the biological father.

They both referred to him as ‘Daddy’.

He also provided financial support and was named as the girl’s father on the birth certificate.

Issues arose when the mother and her wife attempted to take the children, then aged 10 & 9, to live in New Zealand, where the couple married in 2015.

The father sought to prevent the relocation.

The original decision of the court was in favour of the father; however, this was reversed in favour of the mother on appeal to the Full Court of the Family Court.

The mother relied upon NSW Law that provides that a sperm donor is presumed not to be a father unless married or in a de facto relationship with the child’s mother at the time of conception.

The Full Court held that the state law applied because the federal laws did not specifically state anything to the contrary.

The father appealed to the High Court.

The mother and her partner argued that the father was not a parent but simply a sperm donor.

The fathers lawyer argued that the question of who is a parent, should be determined by the circumstances of each case.

The important issue was not only who provided the genetic material but whether the father had actively and positively participated in the child’s upbringing.

They argued that he was not simply a sperm donor but the father.

The majority of the high court agreed and concluded that the father was a parent of the child.

The court said that “the term ‘sperm donor’ suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an understanding that he is thereafter to have nothing to do with any child born.”

This was not the case here.

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