Attorney-General Argues a Sperm Donor is a Parent – what does this mean on death??

The term ‘parent’ is currently expressed under the Family Law Act (Cth) to mean a child’s biological parent, unless there is express provision for an alternative.

Sperm donors in Australia have never been considered as the parent of the child and not named on the birth certificate, unless they were married or in a de-facto relationship with the mother at the time that the child was conceived. Under the Status of Children Act 1974 (Victoria), there is a presumption of law that if a woman becomes pregnant from an IVF procedure and a child is produced and born as a result, the man who produced the sperm is not the father or a parent of that child.

The Federal Attorney-General, Christian Porter, has recently intervened in a High Court case involving a Newcastle man Robert Masson, who has been trying to stop the mother, Susan Parsons, of his biological daughter from relocating with the child, who is now aged 12 years, to New Zealand.

The pair had been friends for 25 years when they mutually agreed to Mr Masson becoming a donor to Ms Parsons, in order that she could conceive a child though an ‘informal artificial insemination procedure.’

The Attorney-General has argued that the term ‘parent’ should be expanded to include donors in certain cases who are not married or in a de-facto relationship with the mother prior to conceiving the child, but who are known to that mother.  Will egg donors also be considered in the same manner?

On death, in Victoria, the term parent is currently defined under that Administration and Probate Act 1958 to include a person who has day to day care and control of the child and with whom the child is ordinarily resident.  The definition does not provide any assistance as to who else may be considered a ‘parent’ for the purposes of death.

If the Family Law Act definition of a parent is expanded to include sperm donors in certain circumstances, what impact will this have on the interpretation of a Will, when a parent is included as a beneficiary of that will?  What about on guardianship laws if the other biological parent has died and the child concerned is still a minor?  If there is no Will, on the operation of the intestacy rules, it is a possible that the sperm donor, who may be considered as a parent, could receive that child’s (even an adult child’s) entire estate!  If the ‘sperm donor’ parent has died, does that mean that the child can then contest that parent’s will?

In light of the proposed changes, careful consideration should be given to the drafting of your estate planning documents.

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