Lesbian Families and the law

Sara and Jenna are lesbians in a long-term, committed relationship. They ask Jenna’s brother, Daniel, to donate his sperm to inseminate Sara. He agrees, on the understanding that he will not be considered a parent or hold financial responsibilities, but have a role as an uncle. The child is born, a few years pass, and Daniel tries to seek custody and increased contact with the child.

The above scenario is just one of many and embodies a concern held by many lesbian couples: Whether the known sperm donor will seek a relationship with the child beyond what was agreed upon.

There is little doubt that the Australian legal system privileges the families of heterosexual couples. Along with the option of marriage not being available to lesbian and gay couples in Australia, it seems that no heterosexual couple has ever been taken to court by a sperm donor – These cases have been heard as the result of lesbian couples using a sperm donor.

There are many personal reasons as to why a couple chooses to conceive with a known donor through an artificial conception procedure.

For example, they are familiar with this donor and he may act as a ‘male role model’ for the child. Legally, however, the issues surrounding these situations are more complex. All States and Territories in Australia have legislation that disconnects the legal relationship between sperm donors and the child, and grants parental status to the consenting de facto partner of a woman who conceives through donor insemination. The partner is also presumed to be the parent of the child under section 60H(1) of the Commonwealth Family Law Act (FLA).

In the context of using a sperm donor, the idea is that the donor relinquishes all rights to that sperm once it has been donated. However, through recent cases, it can be seen that the legal system upholds the view that if a man wants to be a ‘parent’ in a child’s life as a sperm donor, he is able to. There have been a number of Family Court decisions that have resulted in the donors being granted contact orders, even roles similar to that of a post-separation father. The privilege given to heteronormativity has innumerable social and legal impacts on LGBTIQ families and their ability to stay exactly that – as families.

In many aspects of life, lesbians have to fight to persuade others that their relationship is ‘real’.

This is also true of the legal system – de facto couples must satisfy certain criteria in order to be deemed recognisable under the law; Criteria which a heterosexual married couple would not have to encounter. Lesbian couples in particular have to argue and prove in a legal setting that their relationship is a happy and harmonious one – and that, in most cases, they are not co-parenting with the sperm donor. Even with the lesbian couple as the recognised legal parents of the child and the only parents listed on the birth certificate, the sperm donor could potentially have parenting rights awarded to him. Additionally, even if the donor has made no financial contribution to the child, he may still have no legal financial responsibility to contribute to their maintenance if he ended up with significant custody.

In order to be eligible to apply for parenting orders under the FLA, an application must be a parent of a child, the child, a grandparent of the child, or any other person concerned with the care, welfare and development of the child. The sperm donor may argue from the position of the last option and would need to establish that he has a meaningful relationship with the child and demonstrate that he has a history of spending time with the child. When a dispute exists between the parents and donor, the paramount consideration under the Family Law Act is the child’s best interests. The court is likely to make an order for the child to spend time with the donor, although not necessarily parenting responsibility if there is an existing relationship between the donor and the child. This will hold even with an oral or written pre-existing agreement.

Written contracts can be important in allowing the court to gain insight into the context and intention behind the agreement; however, it must be remembered that these have limits and may not hold any legal weight.

Be wary of oral agreements since there is a risk of “he said-she said” arguments. Existing case law has demonstrated that disputes arise when there are mismatching expectations between the couple and the donor. For example, the role of an uncle may encompass different duties for each party. It is helpful to discuss the anticipated relationship in detail when drafting the agreement with legal professionals to reduce the risk of a dispute arising.

To revisit the question of whether the law sufficiently protects lesbians and their families, the answer would be no. While Australia’s legal system has adapted to the increasing prevalence of LGBTIQ families to a certain extent, the path to progress is still a long one. The level of uncertainty regarding the outcomes of various court cases is far too high. In order to adequately provide security to lesbian couples and their families, law reform must be ushered in.

Disclaimer: Ultimately, it is vital to know exactly what the law requires – and this is best acquired through professional legal advice.

*This article originally appeared in the June 2015 issue of LOTL