Danny Marr and Jill Miller from the family law team at Norman Waterhouse look at some of the things you need to know before entering into donor conception.

Donor conception is an increasingly popular option for people to become parents. It has allowed couples, solo-mothers and soon to be solo-mothers – including Caterina Mete ‘the Red Wiggle’ – the ability to start and grow their family.

What is donor conception?

Donor conception is the artificial supply of donor gametes (sperm or egg cells) for the purpose of creating a pregnancy.

The method of donor conception has important legal ramifications, as it determines who are the child’s legal parents. Donor conception can occur in three different ways:

1. Formal Supply – Occurring through a registered Assisted Reproductive Technology (ART) clinic where gametes are facilitated, tested, regulated and administered via intrauterine insemination (IUI) or in vitro fertilisation (IVF).
2. Informal Supply – Occurring when sperm is supplied by a donor and administered via a self-insemination procedure (but not via natural insemination).
3. Natural Insemination

Who are the legal parents of a donor conceived child?

If the donor conception occurred formally or informally to a couple in a marriage or de facto relationship, the members of the couple are recognised as the child’s parents with all the legal rights and responsibilities that flow from parenthood.

Solo-mothers who conceive via formal or informal donor conception will be recognised as the child’s parent. However, subject to the intentions of the donor and solo-mother, pre-conception and post-conception, it is possible for a donor to be legally declared a co-parent.

If conception occurred via natural insemination, the child’s parents will be the mother and the biological father (the donor).

Is a donor obligated to financially support a donor conceived child?

Ordinarily, only a ‘parent’ is obligated to financially support a child. So, in most circumstances, a donor is not obligated to financially support a child.

However, in circumstances of natural insemination or a donor being legally declared a parent, the ‘donor’ will be obligated to financially support the child.

Can a donor apply for parenting orders?

Just because a donor is not a ‘parent’ doesn’t mean he or she cannot apply for parenting orders.

Anyone that is ‘concerned with the care, welfare, or development of the child ’ can apply for parenting orders, including donors.  Parenting orders can deal with who a child lives with and spends time with and who has parental responsibility for a child.

However, parenting orders are only made by a court if they are in a child’s best interests. A donor may have a better chance of obtaining a parenting order, if there was an intention to involve the donor in the child’s life.

While there is nothing to prevent a donor applying for parenting orders, the risk may be reduced by an appropriately drafted donor Agreement.

Should we consider entering into a donor agreement?

While a donor agreement is not binding or enforceable in any court application for parenting orders, a donor agreement can be relied upon as persuasive evidence of the pre-conception intention between the recipient parent (the recipient parent’s partner, if applicable) and the donor.

Without a donor agreement that clearly identifies each party’s intended role and relationship, there is a higher risk of a donor successfully obtaining a parenting order.

If you are considering donor conception, it is strongly recommended that you speak to an experienced family lawyer to fully understand the legal implications and how to best protect your family.

In our next article for SALIFE, we will cover things you need to know about donor conception information sharing, birth certificates and rules relating to financial benefits to donors.

For further information or advice regarding donor conception and family law, please visit www.normans.com.au to contact one of our family lawyers. Or contact one of our family law team Principals, Elissa Riach at [email protected] or Jill Miller at [email protected]