Every year in Australia about 3,000 babies are born as a result of using sperm donors. But there is a shortage of donors, and fertility clinics and IVF providers have appealed for more sperm and egg donors.
Laws concerning sperm donors have changed over the years
According to the 2021 Victorian Assisted Reproductive Treatment Authority (VARTA) annual report, single women make up 53 per cent of those using sperm donors, followed by women in same-sex relationships (34 per cent) and heterosexual couples (17 per cent).
Many legal questions come up in connection with sperm donation and it would be wise to know the law before getting involved in the process.
People ask whether the donor can contact the child, whether the offspring of a donor will know who their biological father was and whether the prospective mother can know who the donor was. Many donors want to know whether they have any legal obligations to the child or children born as a result of their donation.
Laws have changed over the years, and since 2010 there have been processes to support the disclosure of information about the people involved in the process.
Since 2010 a donor cannot be paid and cannot remain anonymous. A child born from donor sperm is by law the child of the birth mother. The donor has no claim to parental rights.
Central Register holds mandatory information on sperm donors
The NSW Assisted Reproductive Technology Act 2007 established the NSW Health Central Register to hold mandatory information about donors and donor-conceived children, and provide the opportunity for them to access information about each other.
The Register run by the NSW Ministry of Health records the name, gender and date of birth of every child born as a result of donor sperm since I January 2010, the name of woman who gave birth to the child, and the full name of the donor. (Please see Frequently asked questions about assisted reproductive technology, NSW Health, 13 December 2021.)
Donor information includes the name, address, place of birth, ethnicity, physical characteristics and medical history or genetic test results that are relevant to the future health of the sperm recipient and offspring. It also records the gender and year of birth of any other offspring of the same donor, and the name of every clinic which obtained sperm from that donor.
People who were donor-conceived before 2010 can voluntarily provide information about themselves to be kept on the Register, as can sperm donors.
If the donor has not given permission for their name to be provided to applicants, their relevant medical history, ethnic and physical characteristics can still be released.
If the donor or offspring aged over 18 has consented to having their contact information released, it can be obtained by applying to the Central Register. It would be wise to seek counsel before doing this, as it may have unforeseen emotional consequences.
Sperm donors not legal parents if donated through a clinic
Under NSW law, sperm donors are not the legal parents of children born from their donation and have no legal rights or financial obligations to the child. However, this only applies to men who donate formally through a fertility or IVF clinic. (Please see Section 14, Status of Children Act 1996.)
Donating sperm informally to friends can open up all sorts of potential legal dangers, and could end up with the donor taking on the cost of raising the child.
The legal repercussions can be complex. In 2019 the case of Masson v Parsons & Ors [2019] HCA 21 went all the way to the High Court.
In 2006 a man privately donated sperm to a friend, who was later in a relationship with another woman. The man wanted to be involved in raising the child and challenged the couple's plan to move to New Zealand.
The High Court deemed him to be the child's father, because the woman was single when he donated his sperm and he was initially involved in helping her raise the child – therefore he had parental rights.
Anneka Frayne
Family law
Stacks Law Firm
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