LSB May 2022 LR

FEATURE
THINKING OF BEING A SPERM
DONOR? DO YOU NEED A
SPERM DONOR AGREEMENT?
JULIE REDMAN AND TAYLA INGLIS, ADELTA LEGAL
Advances in technology and legislative
changes including recognition of
same sex marriage have seen an increase
in the number of children conceived
through artificial conception procedures.
Many people including same sex couples
and single women may wish to seek the
assistance of a sperm donor to enable them
to start a family. Important consideration
needs to be given to the role of each
person involved in the artificial conception
process and to the role it is intended each
person play in the life of the child to be
conceived. Whatever the scenario may be,
there are legal complexities that should be
carefully considered, and legal advice is
recommended.
There is a difference between
“parentage” of a child and “parenting”.
Parentage means the determination of
whether a person is the parent of the
child. Parenting is the process of raising
and educating a child from birth until
adulthood.
STATUS AS PARENTS
In South Australia there are two
statutory frameworks that need to be
considered in relation to children born as
a result of artificial conception procedures
– the Family Law Act 1975 (Cth) and the
Family Relationships Act 1975 (SA).
The term ‘parent’ is not defined in the
Family Law Act.
Under the Family Law Act where a
child is born to a woman as a result of
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THE BULLETIN May 2022
an artificial conception procedure and
the mother has a partner (either married
or de facto) at the time of the procedure
who consented to the procedure then the
child will be a child of the mother and that
“intended parent”. 1
Where a child is born to a single
mother, the question of whether the
sperm donor is the father is considerably
more complex. Section 60H of the Family
Law Act does not prima facie exclude a
sperm donor from possibly being a parent
as would be the case for a mother with a
partner.
In contrast, under the Family
Relationships Act (SA) if a woman becomes
pregnant in consequence of a fertilisation
procedure and a man (not being the
woman’s spouse, or if she is in a qualifying
relationship, her partner) produced sperm
used for the purposes of the procedure
then for the purposes of the law of the
State, the man –
1. will be conclusively presumed not to
have caused the pregnancy; and
2. will be taken not to be the father of any
child born as a result of the pregnancy.
The High Court decision in Masson v
Parsons & Ors [2019] HCA 21 (“Masson”)
considered both the provisions of
the Commonwealth and State law in
considering similar provisions under the
Status of Children Act 1996 (NSW).
The High Court found that Mr Masson
(the man who donated his sperm to a
woman who was single at the time of the
conception procedure) was a ‘parent’ of
the child within the meaning of the Family
Law Act. The Court held that section 60H
of the Family Law Act was not exhaustive
of the circumstances in which someone
may be deemed a parent. Masson is now
the leading case in this area of law. The
factors the court considered in making this
determination are discussed in more detail
later in this article.
In determining whether a sperm donor
is a parent of a child born to a mother,
careful consideration of a range of factors
is required, including the intentions of
the mother and sperm donor, whether the
sperm donor was known to the mother
and who is listed on the birth certificate.
PRESUMPTION OF PARENTAGE AND THE
CHILD’S BIRTH CERTIFICATE
There are presumptions of parentage
under the Family Law Act. 2 Most
commonly in artificial conception matters,
this presumption arises when a person’s
name is entered on the child’s birth
certificate as a parent. 3
It is essential that all parties involved
understand and record their intentions in
relation to the parents to be recognised on
the birth certificate, currently this can be
only two people.
DO YOU HAVE TO BE FOUND TO BE A
PARENT TO HAVE A RELATIONSHIP WITH
A CHILD?
The Family Law Act does not restrict
applications for parenting orders to only