By MONIQUE DEVEREUX
A sperm donor has been left legally marooned after a couple he helped have a baby refused him access to the child despite a written contract.
Now two High Court judges say legislation is needed urgently to cover the rights of fathers and children in cases involving artificial
insemination.
The case occurred when a Family Court refused a Sydney man access to the Auckland-based child he willingly fathered for a lesbian couple, via artificial means but not in a clinic.
The trio had drawn up a detailed written agreement, including giving the father access to the baby boy for at least a fortnight a year. But the friendship broke down.
The father, a gay man in a stable relationship, applied to the courts for contact with the child but the mother and her partner were reluctant.
The Family Court ruled against the father's wish to have access partly because the Guardianship Act 1968 states that the biological father has no rights when a child is conceived artificially.
Other outdated laws assumed he was merely a sperm donor and the woman would have a male partner.
None of the people can be named because of continuing proceedings in the Family Court.
Two High Court judges dismissed parts of the man's appeal under the Guardianship Act. But, calling it a "complex and difficult" case, Justice Paul Heath and Justice John Priestly called for the current review of the act to look at the situation urgently.
The judges say the law should appreciate that adults who use artificial reproduction could reach their own agreements with sperm donors over responsibilities for the child.
"It is undesirable that the father and children in the situation of this father and this child should be left legally marooned."
Justice Heath said agreements could not be enforced like commercial contracts but they should be given weight, especially when they were drawn up by "informed and intelligent adults (after what appears to have been careful thought)".
In this case, the lesbian couple had approached the man, who was their friend, twice before he agreed to become the donor.
They drew up a contract of agreement saying the mother and her partner would take "primary co-parenting responsibility". It said the father "would like it to be clear that the decision to become a father has not been taken lightly and that the child's birth and life is of great significance to him".
The judges also said that some law surrounding artificial insemination was outdated and assumed a couple would be heterosexual.
So the Status of Children Amendment Act 1987 envisaged that the lesbian woman who conceived the baby would have a male partner or husband who would be the father.
Under the act, the Sydney man had little standing because he was the "sperm donor".
The judges said the laws on artificial insemination by donor were "cast in heterosexual language".
The law should examine what would happen if the relationship between a donor and a homosexual couple later broke down.
After dismissing the man's appeal and sending other aspects of the case back to the Family Court, the justices said the court was aware anecdotally that artificial insemination procedures were used by lesbians and homosexuals "to bring about the conception of children without heterosexual contact".
Associate Professor Bill Atkin, a specialist in family law at Victoria University, said when a lesbian couple conceived through donor insemination the donor was "strictly speaking" the legal father but had no legal rights or responsibilities.
Labour MP Dianne Yates, whose Human Assisted Reproductive Technology Bill will be reported to the House before the end of May, said it was vital that legislation be passed quickly.
The law on donors:
Couples, parents and donors have a range of established rights and obligations under New Zealand law.
These, under the Status of Children Amendment Act 1987, are explained by Associate Professor Bill Atkin, a specialist in family law at Victoria University.
When a heterosexual couple conceive a child by donor insemination, the husband or de facto partner of the biological mother can consent to become the legal father of the child. The donor is not the legal father.
In a lesbian couple, the partner does not become the legal parent but the donor has no legal rights or responsibilities.
The birth mother is the legal mother and guardian of the child. She has custody, unless there is a court order to the contrary, and cannot seek child support from the donor father.
Under the law the child's rights are the paramount consideration.
Under the Guardianship Act 1968, someone who is not the legal parent of a child can still apply for custody.
About six years ago fertility clinics in New Zealand voluntarily agreed to accept sperm donations only from men willing to be identified when their child turns 18.
Before the mid-1980s few records, if any, were kept about donors, making it virtually impossible for children to make contact with their fathers.
About 150 children are born each year in New Zealand as a result of donor insemination.
Other rules apply to egg and embryo donation.
By MONIQUE DEVEREUX
A sperm donor has been left legally marooned after a couple he helped have a baby refused him access to the child despite a written contract.
Now two High Court judges say legislation is needed urgently to cover the rights of fathers and children in cases involving artificial
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