Monday, November 11, 2019
The recent High Court decision in Masson v. Parsons has made it plain that sperm donor agreements – whether the intended parents are single or a couple – are essential.
In Masson, Mr Masson was found to be the parent of a girl conceived from sperm he donated to a female friend because:
· He was genetically the father;
· It was understood, whether express or implied, that he intended to be a parent;
· His name was on the birth certificate;
· The child had called him “daddy” for the last 10 years and he had engaged in parenting.
As the High Court made plain, every case is different. The High Court also made plain that the Family Law Act may allow more than two parents.
The legal costs incurred by Mr Masson and the two Ms Parsons (the mother, Ms Parsons having married another woman), according to media reports total about $4 million! While the case has made its way all the way to the High Court, the final determination has not yet occurred and the parties as I understand it are locked in another round of litigation in the Family Court.
Prevention is better than cure. In my view, the lowest risk for any intended parents with a proposed sperm donor is to have a clinic recruited de-identified sperm donor (whom the child can find out after the age of 18 as to the identity). However, if the intended mother or intended parents wish to use a known sperm donor, having regard to the potential risks involved, there are three ways of minimising risk:
1. Go through an IVF clinic. The chances of infection or the transmission of an inheritable condition will be much, much lower because of the thoroughness of Australia’s excellent IVF clinics.
2. Have fertility counselling of all parties. If going through an IVF clinic, counselling between all the parties at the same time is mandated through an experienced fertility counsellor. If you are undertaking sperm donation at home without the checking benefits of an IVF clinic, fertility counselling is strongly recommended from a counsellor who is preferably a member of the Australia and New Zealand Infertility Counsellors Association (ANZICA). Why counselling is important is to ensure that all parties are in the same boat, paddling in the same direction. It needs to be clear between all parties as to whether the man who is contributing his sperm is to be a parent or a donor and, whether a parent or a donor, what level of involvement the man is to have with the child. If the man has a partner, again what involvement the partner is to have in the child’s life. There have been a series of cases in the Family Court where the man was of the view that he was a parent and the woman or women were of the view that he was a donor only.
3. Have a written, carefully drafted sperm donor agreement. What is clear from Masson is that there was no written agreement. The intention or understanding of Mr Masson that he was to be a parent was, in the words of the High Court, express or implied. That phrase makes clear that this agreement between old friends of 25 years was oral, which in the words of one retired Family Court judge was: “worth the paper it was written on”. Having a written, properly drafted sperm donor agreement will greatly reduce risk and need not be particularly expensive. Solicitors who know what they are doing will charge a moderate fee, and typically less than the cost of obtaining donor sperm from a clinic.
I and my associate Karen Gough have drafted egg, sperm and embryo donation agreements. We have acted for either the intended parents or the donors.