The important question about sperm donorship and who is a parent has been addressed by the High Court recently when it handed down one of the most eagerly awaited decisions in family law.
The Court was faced with a question of whether the biological mother and her wife were considered to be the legal parents of a child or whether the biological mother and biological father (who was referred to by the mothers as a “sperm donor”) were considered the legal parents of the child.
In late 2006, the biological mother, who was single at the time, and the biological father agreed to have a child through artificial insemination. The biological father donated his sperm to the mother on the understanding that he would be involved in the child’s life, including providing physical, emotional and financial support. The biological father was registered on the child’s birth certificate and the child referred to him as “daddy”. However, the biological mother and biological father later had a falling out.
The presumption of equal shared parenting responsibility
The issue later arose in circumstances where the biological mother and her wife (“the mothers”) were seeking to relocate to New Zealand with their two children and the biological father. This ultimately led to the Court being required to answer the question of “Who is a parent?” because the law presumes that both parents of a child have equal shared parental responsibility for that child. Equal shared parental responsibility requires parents to make joint decisions about major long-term issues relating to their child, including overseas travel and if their child relocates.
Whilst it may seem a simple question, the answer to this question would have a significant impact. If the Court were to determine that the mothers were the legal parents of the child, then the mothers would be able to relocate to New Zealand. However, if the Court determined the biological mother and biological father were the legal parents then the mothers would not be able to relocate with the child.
Biological father more than just a sperm donor
The High Court ultimately sided with the biological father and ruled that he has the legal status of a parent. The effect of this is that the mothers will be unable to move to New Zealand. The particular facts of this case are important because the High Court emphasised that it was clear the biological father was more than just a “sperm donor” as he was involved in the child’s life.
The decision is significant as it is socially progressive an recognises the evolving concept of a “family”. However, as the decision widens the scope of who is considered to be a parent in family law it may have unintended consequences for sperm donors and women who choose to have IVF or artificial insemination.
If you, or someone you know needs family law advice of help on what to do next, contact us on (02) 4322 0251 to speak to one of our Family Law specialists.