A sperm donor will normally be presumed not to be the legal father of any resulting children.
As such, a donor would not usually be able to seek a Parenting Order in respect to the child born of their genetic material.
A recent Family Court case details a set of circumstances in which a donor was found to be the parent of the child for whom he had provided sperm during an IVF procedure.
Facts of the case
- The mother and father had known each other for years and had briefly lived together several years before the child’s birth.
- They agreed to have a child together. The father provided the sperm for use in the mother’s IVF procedures, with the intention of fathering a particular child.
- At the time of the child’s conception, they were friends who had no intention of living as a couple.
- The mother was not married or in a de facto relationship when the child was born.
- After the child’s birth, the mother and father had a falling out. She tried to avoid him and the time he had been spending with the child was reduced.
The father applied to the Family Court for increased time with the child. This case considered the meaning and definition of the word “parent”. The Court found that the “father” was the parent of the child.
A further legal difficulty arose because of the State legislation – section 15 of the Status of Children Act 1974 (Vic) which creates “an irrebuttable presumption that where a woman who has no partner undergoes a procedure as a result of which she becomes pregnant, the man who provided the genetic material is not the father”. This meant there was a conflict between a State law and a Commonwealth law. When there is such an inconsistency, Commonwealth law prevails.
Part of the mother’s case in response was that the father was not a parent and that he had done no more than provide his genetic material for use in an artificial conception procedure. The mother’s major concern was that the man should not have parental responsibility in the sense of being responsible for decisions about the child.
There was no dispute about paternity nor that the father would not fulfill some parenting roles.
The Court’s findings about parentage
- The Status of Children Act 1974 (Vic) did not have the effect of excluding the father from being the parent of the child. There is equivalent Queensland legislation.
- The Family Law Act 1975 (Cth) did not restrict him from being a parent because the mother was not married or in a de facto relationship with him. There was also no one who could displace the father as a parent.
The Court made Orders confirming that the father was to have equal shared parental responsibility concerning the major long-term decisions for the child and to set out the time he could spend with the child.
 Groth v Banks  FamCA 430.