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LIV President's Blog 2012

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Groth & Banks – Single Mums and Sperm Donor Dads

Groth & Banks – Single Mums and Sperm Donor Dads

In Vitro Fertilisation (‘IVF’) clinics across Victoria may have to re-evaluate the information they provide their single mother clients after the recent decision of Groth v Banks [2013] FamCA 430.

In that case Justice Cronin awarded a sperm donor equal shared parental responsibility to be exercised jointly with the single mother. The decision stands in opposition to the position outlined in Victorian legislation on point, specifically section 15 of the Status of Children Act 1974 (Vic).

Defining a parent
Justice Cronin here explains that, while the Victorian specific legislation seeks to define the term ‘parent’ (and in doing so restrict its use from sperm donors), the Family Law Act 1975 (Cth) (‘FLA’) already covers this territory making the two definitions inconsistent when dealing with single mothers who utilise sperm donors to conceive. As with all inconsistencies between state and commonwealth law, the latter reins superior.

Limited definitions
Though the FLA does not have an exhaustive definition, Justice Cronin asserts that sections of the FLA including 60H (which specifically deals with children born as a result of artificial conception procedures) are there to add to the list of those persons to be defined as ‘parents’ and not there to limit its definition to less than two persons.  

Young lawyers may find this puzzling at a glance, however if one considers the fact that genetically there will always be two ‘parents’ for any child then the legal question will largely focus on whether there is an intended ‘parent’ such as a De Facto partner (of either sex), or spouse to displace the unintended parent, here the sperm donor. 

The decision seems particular to single mother cases, however it must be noted that the facts of this case included the sperm donor signing a waiver form produced by the IVF clinic providing that he would have no rights as a parent in relation to the child that was eventually created from his sperm. Despite the existence of this executed document, the sperm donor obtained equal shared parental responsibility, time with the child and was liable for on-going Child Support.

So how did the sperm donor obtain these rights privileges and responsibilities?
He applied for it. This is key. Without his application to the Court, the sperm donor would not have been liable for Child Support and would not by right have any decision making influence over the child’s on-going care. Here the sperm donor was motivated by several factors to be a ‘parent’ to the child and his application to the court was the vehicle by which he obtained that role.

Whether the decision will lead to similar applications by sperm donors is unknown, however the IVF clinics will no longer be able to rely on State legislation when counselling new single mothers on their rights and responsibilities concerning artificially conceived children.  

Do you think it’s fair for a known sperm donor to seek parental responsibility and time with the children?

Therese Borger is a law graduate at Clancy & Triado Lawyers currently undertaking her PLT and a member of the Young Lawyers Section Community Issues Committee.

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I can imagine this decision would be quite controversial - and may impact on women's decisions to conceive via a sperm bank, particularly if the woman has no interest in joint parenting responsibility...
22/08/2013 9:24:37 PM

Nithya de Zoysa
I think it is fair for sperm donors to seek parental responsibility and time with children in certain circumstances. For example, where the sperm donor has been having an active role in the child's upbringing to the point of even providing support, be it, monetary or otherwise. If, for some unknown reason, the sperm donor is not allowed to see the child, I think he is well within his right to apply for parental responsibility and time with the child.

Needless to say it is unfair when the sperm donor who has not had any relationship with the child can seek parental responsibility.

Obviously, the Victorian IVF clinics will have to rethink their application process and the advice they give to single mothers, and couples (same-sex and heterosexual) for that matter.
22/08/2013 6:15:24 PM

Paddy Q
The rights of donor-conceived people really need to be address here too, I think.
20/08/2013 7:24:03 AM

Therese, for any sensible responses to flow, you will need to define "fair" and stipulate from whose perspective the question is to be considered
16/08/2013 5:40:51 PM

Andre Bevz
Despite the web of issues that this question raises, there seems to be one obvious and necessary prism through which to view the matter, and that is the paramountcy principle. Many a child has the misfortune of being born to parents who are unable or unwilling to fulfil the child's fundamental need for love and validation. Here, it seems, a child is born with someone willing to fight to give love and validation - and to contribute material resources. It is difficult to see how that could be prima facie unfair to the child.
16/08/2013 5:30:56 PM

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