High Court decides on the parenting rights of a sperm donor

Fathers take heart – you will get your time with your children.

Most recently, the High Court decided on the parenting rights of a sperm donor. As it has unfolded, it has since become a case that raises interesting questions for many aspects of family law, particularly the parenting rights of fathers.


What are the facts of this case?

  • Susan (the donee) wished to have a child. Her old friend, Robert (the donor), agreed to donate his sperm to her;
  • However, Robert donated his sperm on the condition he could play a role in the baby’s life. Susan and her partner, Margaret, agreed;
  • Despite his original intentions, Robert relocated his life to Newcastle, NSW, to be close to the child;
  • Susan and Margaret subsequently had another child through a separate donor. This child also grew to know Robert as “daddy” too;
  • In 2014, Margaret was diagnosed with bowel cancer. As a result, the pair decided to fulfil their long-term plan to move to New Zealand; and
  • Robert took legal action to stop the move, out of fear he would lose access to the children he had become attached to.

(Note: this matter contained a conflict between the Commonwealth Family Law Act and NSW state law about the definition of “sperm donor” and “parent”, which the High Court has the final say on.)


What did the High Court decide?

The High Court upheld Robert’s right to be a parent to his child, even as a sperm donor.

They found that while “sperm donor” suggests minimal involvement in parenting, Robert had indeed demonstrated involvement of a care-giving nature.

The critical test, confirmed by the High Court, is the parties’ conduct and the child’s perception of the role that the parent plays in their life.

In essence, if you’ve acted like (and intend to be) a parent, you will be treated as one in family law determinations.


What could this mean for you?

The first thing this case highlights is the Family Court’s inclination to keep the kids together with their significant caregivers. The application of the ‘best interests’ principle is consistent with other international relocation matters in this case.

Another thing this case highlights is how important it is to formalise parenting agreements. You can go into an arrangement with the utmost good-will but things often change. Parties should always try and “future proof” against even the most unlikely scenarios. This usually involves putting in the hard work at the beginning to troubleshoot the potential issues that could arise.

In family law every situation is different. Your parenting rights need to be determined, articulated and advocated to navigate the complexities and protect your right to involvement with your children.


Please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. With legislation differing across the states in areas such as the parenting rights of a sperm donor, and surrogate parents, this can be even more so. This is why it is important for family law clients to speak to experienced family lawyers.


For more information about this case, you can read the ABC’s coverage here.

Posted in: Family Law  In The News  Litigation