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.