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Just a Sperm Donor

Filed under: General — Downunder @ 11:49 am Thu 20th June 2019

From across the Tasman and sourced from the ABC News:

The first two blockquotes are scene setting.
The third blockquote is what caught my eye when first reading the story.
Does anyone have a knowledgeable opinion on the comparative Australian/New Zealand situation?
Some reason for two lesbians to prefer New Zealand rather than Australia?

A man who donated his sperm to a friend with the belief he could play a role in the child’s life has won a High Court fight sparked by the mother’s decision to move to New Zealand with their biological child.

Key points:The man says he fathered the girl on the understanding he would have a role in her lifeThe High Court rules in favour of the man, forcing the child and her mother to remain in AustraliaThe father has been locked in a dispute with the girl’s mother since she planned to move to New Zealand

The decision by the court overturns an appeal the girl’s mother and her wife won and reaffirms an earlier ruling that ordered they remain in Australia and consult him on major parenting decisions.

The court heard the man, given the pseudonym Robert, initially agreed to donating his sperm to his friend, and was of the belief he would be involved in his child’s life.

The girl was conceived in 2006 and in the intervening years he maintained a close relationship with her, introducing her to his extended family and volunteering at her school canteen.

Both the girl and her sister, who is not related to Robert, call him “daddy”.

The legal fight began when the mother and her same-sex partner, given the pseudonyms Susan and Margaret, decided to move to New Zealand, a decision Robert challenged in the Family Court.

PHOTO: The man launched his bid after plans were made for the girl to move to New Zealand with her mother. (Unsplash: Annie Spratt)

The initial ruling was in his favour, finding there was more to being a father than biology, and that ultimately Robert should be a parent.

In that ruling Justice Margaret Cleary wrote that the law recognised parents in different ways.

The lesbian mothers have tried to use the New South Wales sperm donor regulations to obtain a ruling that the sperm donor is not the legal father. To me that reads that voluntary donation should be seen in the same light as organised fertility.

The girl’s mother and her wife appealed that decision and won, arguing the man was not the legal father, citing a New South Wales law setting out rules for fertilisation procedures, which specifically addressed the situation of same-sex couples.

In the next quote the Victorian Government along with the Federal Government entered the debate. I’m also looking at the use of the word Commonwealth and whether in this case refers only to a Commonwealth of the Australian Federation rather than the Commonwealth of countries.

The appeal to the High Court set up a conflict between the Commonwealth Family Law Act and NSW state law, which was the basis of the mothers’ win.

Robert relied on the Commonwealth law to stake his claim as a parent, while Susan and Margaret relied on the NSW Status of Children Act and its stipulations that a sperm donor is not a father.

The Constitutional issue resulted in the Commonwealth Government intervening to support Robert’s case, while the Victorian Attorney-General swooped in to back up the case of the two women.

PHOTO: The High Court heard the man was a regular feature in the girl’s life, including volunteering at her school canteen. (Pixabay)

On Wednesday the High Court ruled in Robert’s favour, overturning the previous appeal and reinstating the initial Family Court judgement that ordered the women to live in Australia.

The court found the NSW law was not applicable, and that the definition of parent under Commonwealth law should be applied.

Along with the recent CAPPS case which we are yet to receive a decision on, this case also throws up some uncertainty on the New Zealand situation, and what might be the preferred situation in New Zealand.

Not everyone will be pleased: Family lawyer

Family and fertility lawyer Stephen Page said the decision was a “sensible” one.

“It’s removing … artificial legal barriers about whether or not someone’s a parent,” he said.

“But it will have an impact on people in the Family Court, it will have an impact on people undertaking surrogacy and people who thought they were sperm donors and not parents, may discover, to their horror, that they are parents.”

Mr Page said not everyone would be happy with the High Court outcome.

“I can assure you that there are men who thought they were sperm donors and had no obligation to the child … and have now discovered that potentially they have the full gamut of responsibility, including potentially child support and inheritance,” he said.

Mr Page said it was also unclear to him at this stage, what impact it would have on surrogacy, including whether the child’s intended father should put their name on a birth certificate.

“The usual practice in the state courts is not to, because you’re not a parent, and we transfer parentage through a parentage order made in the state or territory court. Now I’m just not sure,” he said.

“We’re just going to have to see how this pans out over time. It just makes it very uncertain for people trying to plan their lives.”

In the meantime Mr Page urged those entering into such arrangements to be clear about their intentions.

“If you’re thinking of becoming a known sperm donor to a single woman, I think it really shows that it’s a wise idea to have a sperm donor agreement,” he said.

“That agreement may not be legally binding, but they do set out loud and clear what your intention is.

“If you’re intention is that you’re not going to have anything to do with that child, then it makes it plain, according to the High Court, that even though you’re genetically a dad, you won’t be a dad for the purposes of parental responsibility including child support.”

In a statement NSW Attorney-General Mark Speakman said the judgement raised “significant issues”.

“I have requested the Department of Justice to prepare a brief,” he said.

1 Comment »

  1. does that deserve to be won in a court of law at the high court? even though the girl was the result of her father’s original sperm, and not from her friend’s sperm?

    Comment by WINDA EKA SAMODRA — Fri 21st June 2019 @ 3:40 pm

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