Family LawNewsDonor Agreements

Single parent by choice? Considering having a child with the assistance of a friend?  You might want to consider a Donor Agreement. A Donor Agreement is an agreement between a donor and recipient parent/s that sets out the relationship and expectations between the parties. Although Donor Agreements are not legally binding, an agreement sets out the intention of the parties in relation to conceiving and raising the child, as well as guidance to the court in determining what is in the best interests of the child, should a dispute ever arise between the parties about the care, welfare and wellbeing of the child. A Donor Agreement also can be used to register the birth and ensure that the donor is not liable to pay Child Support.

Pursuant to the Family Law Act, a woman who conceives a child through artificial insemination is considered to be a parent of the child and, if her partner at the time has consented to the agreement, they are also considered to be a parent of the child. This exists, regardless of any generic link that anyone else may have with the child.

This means, that if a same sex couple conceives with the assistance of a sperm doner that the couple is considered the parents of the child and the doner is not.

Masson v. Parsons & Ors [2019] HCA 21

Masson v Parsons & Ors highlights the significance of a donor agreement for a same-sex couple that is considering sperm donation to expand their family. In Masson v Parsons & Ors, Susan and Margaret Parsons, a same sex couple with two children, conceived through artificial insemination.

Robert Masson, the biological father of one child was listed on her Birth Certificate, despite not being in a relationship with Susan at contraception, the trial Judge deemed him to be a legal parent under the Family Law Act.

The matter was appealed to the Full Court of the Family Court which found that Mr Masson was not a parent due to the circumstances of artificial insemination and lack of partnership at conception.

Mr Masson then appealed to the High Court (the highest court in Australia that a dispute can be taken to) where it was determined that he was indeed the parent of the child. The Court agreed that because of Mr Masson’s belief at the time of contraception and his subsequent actions as a father meant that he was classified as a parent.

Pursuant to the principles of Mason v Parsons & Ors, the case’s significance lies within the question of whether a sperm doner is considered a parent. It highlights the complexity of family creation and parenting arrangements not fully reflected in the Family Law Act.

While many donors and recipients intend for the donor not to be a parent, co-parenting arrangements do not exist where the donor expects parental recognition. Therefore, a donor agreement is extremely useful in clarifying relationships, expectations and roles, regardless of whether the donor is known, or clinic recruited.

It is crucial to emphasise the significance of entering into a donor agreement when a male contributes his genetic material to aid in conceiving a child. However, it’s important to note that the paramount consideration in court decisions concerning arrangements for a child will always be the child’s best interests.

Should you have any questions or need assistance in a donor agreement please do not hesitate to contact our Family Law Team for more information.