Creating a family with the help of a known donor is an exciting and momentous occasion, however there is a lot that needs to be considered before conception. Whether you are considering starting a family with a known donor or you are the known donor, you should have a thorough understanding of the rights of everyone involved including the rights of any child conceived under the agreement before moving forward.
The most important consideration is to decide upon your own intentions in entering into the agreement, and similarly being wholly aware of the intentions of everyone else involved. There have been a number of cases over the years where a failure of the parties to properly record their intentions in a donor agreement has led to years of litigation and disputes as to the parties’ parental rights over the child/children conceived.
The Importance of a Donor Agreement
The most recent landmark case involving a sperm donor was the High Court Case of Masson V Parsons [2019] HCA 21. Here the Court had to consider the competing assertions by the donor who intended to be a parent to the child, and the recipient parent who argued that he was just a sperm donor. As there was no donor agreement to rely on, the Court had to make a decision as to whose assertion was more likely to be true. In this instance the Court determined that the donor was not a ‘mere donor’ but rather was indeed a ‘parent’ due to the actions of the parties since the birth of the child, namely, the donor being named on the child’s birth certificate and his active role in the child’s life. This case provides a clear example to prospective parties to donor agreements of the importance of understanding the intentions of all involved before moving forward.
What can be included in a Donor Agreement
The most effective way of recording your agreement is by having a valid written donor agreement prepared by an experienced legal practitioner. Your donor agreement is highly customisable and can include but is not limited to the following considerations;
- with which adult the child lives;
- where the child lives;
- how much time the child spends with each parent and/or the donor;
- what the child calls each parent and/or the donor;
- what the child’s surname will be;
- who will be listed on the child’s birth certificate;
- how much time the child spends with extended family members (e.g. aunts, uncles, cousins, and grandparents) and does this include the donor’s family;
- where the child spends special occasions such as birthdays, Christmas, Easter, and other holidays;
- where and what school the child goes to (public or private);
- what extra-curricular activities the child does;
- what religion, if any, the child is to be raised in;
- who will make medical and health related decisions;
- who pays for what expenses for the child;
- Who can take the child on interstate and overseas holidays; and
- The day-to-day care of the child.
Are Donor Agreements Binding?
It is important to be aware that donor agreement is not a legally-binding document and cannot be enforced, however the benefit of a validly executed written donor agreement is that if there is ever any dispute arising in the future, the parties and even a Court may refer back to the valid donor agreement and have regard to the clear intentions of the parties at the time of conception.
Conclusion
If you are considering starting a family with/as a known donor, it is highly recommended that you obtain appropriate legal advice from an experienced practitioner to ensure that you and everyone involved create the desired supportive and nurturing environment within which to raise a child born of a donor arrangement.
We are always happy to assist families in embarking on this journey. Feel free to contact us for a book a no obligation free 15-minute consultation at (02) 8379 1892 or by email at info@barkerevans.com.au.