November 23, 2013 Cogent Lawyers

Family Court holds conflicting views

In two recent cases involving sperm donors, one an IVF case, the other a commercial surrogacy arrangement, the family court arrived at conflicting conclusions about who was a parent.

In the first case the court noted it did not have a comprehensive definition of parent and it should be given its ordinary dictionary meaning, broadening the interpretation of what parentage can mean. The known sperm donor in a consensual IVF procedure with a friend was declared a parent under family law. As the woman did not have a partner, the court was able to reason that the child had two biological parents.

In another case, the judge stated the preliminary view was that the known sperm donor in a commercial surrogacy arrangement would not be declared a parent. One partner of a male homosexual couple had provided donor sperm in a commercial surrogacy arrangement in which twins were born who were in the couple’s custody. The judge said the biological father could potentially only become the legal father by adoption.

If someone has provided genetic material (known donor egg or sperm) and wishes to apply for a declaration of parentage after an IVF or surrogacy arrangement, they need to be aware that court outcomes can vary considerably. They will depend on a number of factors, including the method of artificial conception and legal reasoning in considering several different laws.