Beware if you are a single mum through a known sperm donor

Expert Opinion Panel
Stephen Page – Lawyer

Beware if you are a single mum
through a known sperm donor

Stephen Page | Lawyer | 3 October 2013

…(the father) is therefore liable to pay child support but also presumptions under the Family Law Act apply as to equal shared parenting, and the possibility of equal time…

The options of parenthood became more complex following a recent Family Court case. For a single woman to become a mum involves one of these:

Getting married or living in a de facto relationship
Getting pregnant through a known donor
Getting pregnant through an anonymous donor
If none of those work, surrogacy where available

A recent Family Court decision spells it out clearly that a sperm donor to a single woman where the woman is genetically the mother of the child means that the man is the father of the child. He is therefore liable to pay child support but also presumptions under the Family Law Act apply as to equal shared parenting, and the possibility of equal time.

In the case of Groth and Banks, Mr Groth and Ms Banks were in a relationship. They split up. Subsequently at the urging of Ms Banks, Mr Groth supplied a sample of sperm via an IVF clinic in Melbourne. The result was that a child was conceived and born to Ms Banks who is genetically the mother of the child.

Subsequently Mr Groth sought to spend time with the child. Ms Banks relied upon the Status of Children Act (Vic) to argue that under that State law she was the only parent of the child and that the status of the sperm donor was merely that – a sperm donor and that he was not a parent of the child as a matter of law.

The father argued that he was a parent of the child because he was a known donor who was genetically the father of the child and that the Family Law Act recognised that a child had two “biological progenitors” and that unless they were specifically displaced by the Family Law Act then a sperm donor would remain as one of those.

Justice Cronin agreed with the father’s argument and subsequently made orders to allow the child to spend time with the father.

The fact that the man and woman told the IVF clinic that they were a couple when they weren’t and that the man had signed a form to say that he was only a donor, not a parent, was considered irrelevant by Justice Cronin because these issues were under State law which was overridden by Federal law, namely the Family Law Act.

The effect of the decision is that where a single woman has become pregnant to a known sperm donor and that single woman is genetically the mother of the child, then he is the parent and she is a parent.

What was not tested in the case was if the woman were not genetically the mother of the child. The Judge also made a point of difference as to whether the donor was known or anonymous. It is possible that if the test is that of genetics then despite what his Honour has said an anonymous donor may also be considered to be the father of the child. In reality this probably won’t pose any great difficulty given that an anonymous donor will not be known by the child until the child is at least 18.

Stephen Page is an accredited family law specialist and is a partner of Harrington Family Lawyers, Brisbane.

Stephen Page is a partner of Harrington Family Lawyers, one of Brisbane’s oldest boutique family law firms, and is also a member of the SingleMum.com.au Expert Opinion Panel. Admitted in 1987, Stephen has been an accredited family law specialist since 1996. A co-founder of a domestic violence service, Stephen has been a member since 1999 of a committee for a court based domestic violence service and since 2008 a board member of a charity linking business with the domestic violence sector…read more of Stephen Page’s Profile here