Page URL:

Australian known sperm donor granted parenthood

24 June 2013
Appeared in BioNews 710

An Australian man has been granted shared parental responsibility by a federal judge over a child born through IVF using sperm he had donated to his former partner.

The man had separated from his former partner in 2002 but the pair remained friends. In 2007, the man was diagnosed with testicular cancer and decided to store some of his sperm. Before he was to undergo chemotherapy, his former partner suggested they have a child together but that they would remain as friends and as separate parents. The pair started IVF together in 2008, which lead to the birth of a boy in 2010.

The man, who was present at the child's birth, maintained contact with the child, visiting him regularly until his relationship with the mother broke down in 2011. Around this time his paternity was disclosed to his family, which had until then been kept a secret, and the man was also with a new girlfriend, events the judge concluded contributed to the relationship souring with the child's mother.

When the man sought to regularise his contact with the child the mother became unresponsive, effectively 'stonewalling' the man, the court heard. The man then made an application for shared parental responsibility and regular contact with the child.

The mother argued that the man was not a parent of the child and should not have a role in making decisions about the child. She submitted that she had expected to be a single parent and that the man would only have an 'avuncular role' in the child's life.

However, emphasising that each case was to be determined on its facts, Justice Paul Cronin said it was in the best interests of the child, which was of paramount consideration, to grant shared parental responsibility. The man was granted contact rights at certain intervals leading to alternate weekends and part of school holidays.

Under Victorian state law, if a woman receiving IVF has no partner then the sperm donor used is presumed not to be the legal father. However, the judge explained that, in this case, federal law superseded state provisions. Federal law on legal parentage leads to a presumption of legal parentage for biological progenitors, which was not rebutted in this case, he explained, adding that the law envisages two parents.

'It is the child's right to have the benefit of both of his parents having a meaningful involvement in his life, subject to that being in his best interest', said Justice Cronin. 'The Court should be hesitant about removing a parental responsibility just because of the communication problem'.

The judge said he was confident that both parents would act in their child's best interest and any major decisions regarding his upbringing could be brought to an independent mediator, should communication between the parties break down.

Heather McKinnon, a lawyer at Slater & Gordon, told the Herald Sun that the case was more about the child's attachment to the biological father than how he was conceived. 'The mother relinquished and allowed the child to form a relationship with the man', she said. 

Groth & Banks [2013] FamCA 430
AustLii |  11 June 2013
Landmark federal ruling in custody battle involving IVF mum and her ex
Herald Sun |  18 June 2013
10 March 2014 - by Patricia Cassidy 
A 'do it yourself' surrogacy agreement resulted in legal chaos after the intended parents' relationship broke down within a few months of the baby's birth, leaving the intended mother with no parental rights over the child...
17 February 2014 - by Patricia Cassidy 
A three-month-old baby has become the first child in British Columbia, Canada, to have three legal parents on their birth certificate after new legislation came into force last year...
27 January 2014 - by Nishat Hyder 
A Kansas court has ruled that a man who donated sperm to a lesbian couple in response to a Craigslist advertisement is the legal father of the resulting child. The decision means the man can be required to pay child support....
19 August 2013 - by Ari Haque 
Jason Patric, an actor best known for his role in 'The Lost Boys', has appeared before California lawmakers in support of a bill that would allow sperm donors to apply for parental rights....
19 August 2013 - by Haema Sundram 
The recent judgment handed down in the case of M v F and H [2013] on 5 July highlights difficulties with regard to legal parentage in cases of informal donor situations, which are not regulated by the Human Fertilisation and Embryology Authority (HFEA)...
21 January 2013 - by Cait McDonagh 
A man has been ordered to pay child support to his ex-wife for two children conceived through a sperm donor and born during the marriage....
24 September 2012 - by Tom Barrow 
The High Court has awarded a lesbian couple sole custody rights for a child conceived using donor sperm and a surrogate's egg after a three-year battle over parenthood...
13 February 2012 - by Dr Linda Wijlaars 
The Court of Appeal in the UK is hearing a case in which a gay man is fighting for greater parental access to his two-year old son he fathered with his lesbian ex-wife...
9 January 2012 - by Antony Starza-Allen 
A Florida court has granted equal parental rights to two lesbian women who created a child using the eggs from one of the women, while the other carried the baby to term. It ruled that egg donors may acquire parental rights to children resulting from their gametes under the Florida and US Constitution....
to add a Comment.

By posting a comment you agree to abide by the BioNews terms and conditions

Syndicate this story - click here to enquire about using this story.