Qld: IVF Fathers Status to be Clarified

Men who donate their sperm for use in IVF treatment in Queensland will have their status as biological fathers clarified under a new law.

Attorney-General and Minister for Justice Kerry Shine said under current laws in Queensland the husband or de facto partner of a woman who conceives using IVF treatment automatically assumes legal responsibility for the child.

“However responsibility reverts to a biological father whose sperm is used to impregnate a single woman or woman in a same sex relationship, even without his knowledge,” Mr Shine said

“This means an IVF father can be pursued for child support payments even though he never even knew the child’s mother.

“This is a legal loophole that has potential for abuse.

“These men are not deadbeats who have fathered children and then tried to avoid their responsibilities.

“This is a totally different situation and the law should reflect that reality.”

Mr Shine said the changes will protect men who are helping others in the community through the donation of their sperm from being unfairly targeted by a child’s mother.

“Clearly if we allow this loophole to remain open it could affect the number of men willing to become donors because of a fear they’ll be up for child payments in the future.”

Mr Shine said the amendment will be taken to Cabinet for consideration on Monday and if the Ministers agree it will be introduced to Parliament this month.

The amendment would apply to the Status of Children Act 1978 (SCA) which confers parental responsibility on adults to enable them to exercise the legal powers and responsibilities of parents to care for their children.

Mr Shine said the amendment is proposed to act retrospectively to clarify the status of children born since 1988, when the provisions were originally inserted.

“These laws came in when In Vitro Fertilisation was a relatively new technology and it is time to update them for the modern world,” he said.

Source: Ministerial Media Release

Comment

This change has come about in part because of cases such as Re Patrick (2002) in which the issue was whether a man who had supplied sperm to a lesbian couple was a “parent” within the meaning of the Family Law Act. The judge at the time said:

Having regard to the issues addressed in this judgment, it is time that the legislature considered some of the matters raised, including the nature of parenthood, the meaning of ‘family’, and the role of the law in regulating arrangements within the gay and lesbian community. The child at the centre of this dispute is part of a new and rapidly increasing generation of children being conceived and raised by gay and lesbian parents. However, under the current legislative regime, Patrick’s biological and social reality remains unrecognised. While the legislature may face unique challenges in drafting reform that acknowledges and protects children such as Patrick and the family units to which they belong, this is not a basis for inaction.

However, the proposed change may not cover a situation as Re Patrick. The issue will be whether the donation of sperm was through the IVF process. If for example it was by use of a turkey baster, or “the old fashioned way” then the sperm donor is likely to be considered the father.

It will remain to be seen whether a known sperm donor will be covered. Hopefully there will not be too many cases again such as B and J (1996) when the sperm donor to a lesbian couple found himself liable to pay child support despite the agreement of all that he was not to be a “parent”.