You may be single and wanting a child of your own or be in a same sex relationship and looking to expand your brood. Perhaps you have a male friend who has offered to be a sperm donor and help you realise your dreams, and you comment that he will be part of the child’s life and spend regular time with the child.
You fall pregnant and give birth to a healthy gorgeous baby. The sperm donor comes to visit you and the child; and as your child grows up he is there to support you, spend regular time with your child just as any other friend or family member would, and share in those special moments.
Fast forward a few years. You get a new job or meet the love of your life which requires you to up root and move overseas. You assume that since you are the parent of the child, you can do this without a worry. You excitedly explain this wonderful news to the sperm donor. But he is not as thrilled. In fact, he is concerned how he will maintain a relationship with the child when you move overseas. You are shocked – he was only meant to be a sperm donor, what gives him the right to intervene?
Regardless, you start making arrangements to move overseas with the child. But to your surprise, you are served with Court documents. You are requested to attend Court and respond to the sperm donor’s application that you not be permitted to relocate overseas with the child.
During the court process, the sperm donor argues that he is a parent of the child by virtue of him providing you with his genetic material, but more importantly having spent significant time with the child and the promise that he would be part of the child’s life.
The Court makes an order that he is a parent of the child. You cannot relocate as it would be against the child’s best interests as she would not enjoy her right to have a meaningful relationship with her father.
Although this is not anyone’s story, these facts are loosely based on a landmark decision handed down by the High Court in June 2019.
The facts of that case related to a woman and her male friend, who agreed to have a child together. The parties were both listed on the birth certificate of the child and the male friend (or sperm donor) was involved in the child’s life, including overnight visits and attendance at school events. The child called him “daddy”. The parties resided in New South Wales.
After a few years, the woman married the love of her life and they had a child together. They decided to relocate to New Zealand with their two children. The sperm donor did not agree and commenced court proceedings to stop the move.
In the first instance, the Family Court decided that the woman was not allowed to relocate as she was not in a de-facto relationship at the time of conception and that the sperm donor was significantly involved in the child’s life.
The matter was appealed to the High Court, where the decision was ultimately made that the sperm donor had parentage rights. The woman was not allowed to relocate with the child.
It is important to point out that anonymous sperm donors or sperm donors who do not have a relationship with the child, will likely be unsuccessful in establishing parentage rights. The issue of whether the intending parenting (the mother in this case) was in a de-facto relationship at the time of conception is also a relevant consideration.
The determination of parentage is a complex area of the law and the Court is required to look at Commonwealth Law such as the Family Law Act 1975 and relevant State and Territory laws.
The team at RNG Lawyers are here to assist you with any questions or concerns you may have about parentage and guide you through this complex area of law.
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