Sperm Donor Anonymity in Australia: Legal Challenges and Proposed Frameworks - Free Paper

Introduction

For years, the rights of sperm donors as the parents of the children have continued to experience great anonymity in Australian law. Such anonymity continues to restrict the rights of the absentee parents after swearing to non-disclosure during the donation. Recently, however, state law in Australia purposed to change this trend of anonymity among such biological parents of children conceived from anonymous sperm donations. The law started to allow these parents the right to meet their children. In this piece, the writer shall analyze the progress and future of anonymous donations and propose probable alternative possibilities in law. Legal precedence must be set to clarify the clouded domain of parenting among unknown sperm donor parents.

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Family Law Implications of the Contract between Sperm Donors and Their Offspring

In recent decades, international and national communities have set precedents in line with parenthood among anonymous sperm donors. The specific concern of such legislation has been on the psychological effects of these otherwise absentee parents. Such distress is determined to arise from the inability of such parents to see and contact their biological children. In the current settings, donors of the donor-conceived children continue to be sidelined in the upbringing of the offspring.

Presently, Australia lacks a nationally accepted legal framework for linking donors to their children. However, three states in Australia (Victoria, NSW, and Western Australia) have constituted legislation prohibiting anonymity. In these states, the donors contributing to donor-conceived births must agree to be disclosed to the offspring upon arriving at a majority age. These donors are, however, not compelled by law to consent to such contacts. They may instead agree or disagree with their own volition to contact and present for the Children.

In the states without this legislation, informal contact with children is on the rise. The donors have continued to contact their fertility clinics or follow the children through social media sites to establish a connection. However, there is a worrying absence of legislative commitment in family law to limit such contacts and informal tracing. In general family law, presently, "If the woman is unpartnered, recent case law suggests that a sperm donor may even be able to assert legal parentage". However, this case law suggestion looks increasingly vague and unspecified. The Family Law of Australia (FLA) does not explicitly discuss the implications of such parent-offspring contact in donor-conception cases in the country.

Donor linking in Australia – Sperm-donors Legality in FLA

As stated above, three states in Australia have set statute-based formal mechanisms to enhance donor linking. These three states thus created Central Registers to record the information about the parents involved in conception. The gathered information combines both identifying and non-identifying information about such parents. The donor-conceived offspring may then request for information regarding their parentage from the central registers. In recent years, several children conceived through anonymous donor-based conception scenarios have continued to seek information regarding their parents. Though the anonymity conceptions were done before introducing the donor linking laws in these states, the children may formally inquire for their information from the state registers.

Encouragingly, these three states present some of the most comprehensive systems for donor linkage. However, the rest of the country continues to approach linkages through informal settings. In recent global research in jurisdictions, including Australia, parents of donor-conceived children appeared to increasingly use informal tracing methodologies to access information about their children. Crawshaw and colleagues (2015) conceded that most parents are increasingly following their gamete banks and fertility clinics to seek information regarding their children. This trend creates a volatile legal challenge in these regions lacking statutory schemes to legalize and control such information seek about parentage. Legal frameworks must thereby be set to shape the contact processes between the parents and their children. While anonymity may be requested and required by the parents, it sometimes creates psychological torture for the children and the parents, as evidenced in various case laws in the country.

Some of the most comprehensive and legally undefined methods for seeking donor linkage include online genealogy websites, gamete banks, and direct DNA testing services. In seeking the biological parents and offspring, the donors and donor-conceived children respectively go to extreme lengths to pursue their biological relatives. While these methodologies are not entirely outlawed in Australia, they appear to present complex concerns to family law provisions.

According to the Family Law Council of Australia, there is legal ambiguity around sperm-donor-based conception and parentage. Section 60H of the FLA (Family Law of Australia) expressly postulates that sperm donors are not legally entitled to claim parentage to the children when a couple is involved. Whether the couple is the same or different sex, the sperm donor is not permitted by law to claim parental responsibility for the offspring after agreeing to anonymity. However, this section does not reference a case where the donor conception occurs in a single mother. In the scenario where the conceiving parent is not married or partnered, the section of the FLA does not possess a provision. Judges thereby lack the statutory guidance for such situations.

In the Family Court decision between Groth v Banks (2013), the (known) sperm donor claimed legal parentage for the offspring of a single woman. In the ruling, the judge, in this case, approached section 60H "expansively." Justice Cronin thus referred to the general FLA to define the term parent by declaring that: "The whole Commonwealth statutory concept as outlined in Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law" (Groth v Banks). From this interpretation, the judge declared the sperm donor as a legal parent. However, the implications of this ruling only applied to known sperm donors. The order does not comprehensively reference the cases of unknown sperm donors.

In the case of anonymous donors, Justice Cronin determined that his ruling remains non-applicable. The judge furthermore posited that this law did not oblige the unknown parents to take any responsibility for their children. According to the judge, the ruling does not apply to individuals who did not "intend to become parents, and that rights and responsibilities only flow to donors with such an intention." As such, this case does not provide any statutory backing for such decisions in future rulings.

The intentions of the donor (known or unknown) are not, thereby, relevant criteria for determining parentage under the FLA. This postulation provides the first inconsistency of Justice Cronin's ruling. In section 60H of the FLA, the definition of the sperm donor to a couple does not factor in intention as a factor. The section does not make any distinction of whether the donor is known or unknown. The consideration of "intention" by the judge thereby does not align with the section's "legal stranger" declaration in donor-conception for the couples' case.

"Parenting Time" for Donor Parents

Under the FLA, "parenting time" is not restricted to legal parents. Instead, an individual responsible and concerned about the well-being of the child may be allowed parenting time (FLA, s 65C(c)). In this provision, however, the interested guardian or parent must be concerned about the well-being of the child. The threshold question thereby applies to cases of people who show active and consistent concern about the child's wellness. A mere expression of interest in the child does not warrant any consideration for parenting time. As such, sperm donors intending to use this section to gain parenting time must be present in the child's life and consistently care for them. Anonymous donors who want to know and be present in the child's life cannot use the section of the FLA to claim such attention (Aldridge v Keaton, 2009).

The other instance that may allow parental custody and time for a previously anonymous donor is if the order works in the interests of the child. Statutory guidelines are, however, mainly lacking around the formerly unknown donors concept. For known donors, however, the parenting time concept has not been an issue of concern. These known donors often acquire parental time based on their genetic relationships with the offspring. The case of anonymous parents is, however, mostly ambiguous among the sperm-donors in Australia. While the children's interests always take center stage, these anonymous parents rarely often meet the legal threshold for parenting time based on their inconsistent concern and presence in the child's life.

Submissions

Based on the discussion of case laws and FLA above, the following submissions are made based on the issue of parental concern for donor-conceived children in anonymous circumstances:

THAT Australia has been one of the most consistent Commonwealth countries in approaching and addressing parentage and anonymity of sperm-donor parents. Such immense progress is thereby a step in the right direction for the country's litigation focus on parenting informal access to offspring information by the parents.

THAT the parents and children involved in the donor-conception process are linked through a complicated thread. The concept of anonymity or lack thereof must be handled proactively and through sufficient consultation of the parties before and after the conception. Both law and societal values must be considered implicitly in handling such cases.

THAT States of Victoria, NSW, and Western Australia have already made envious progress in the route towards the disambiguation of sperm-donor conceptions. These states are thereby welcoming and encouraging leaders to register and legalize donor linkage and parenting time dynamics. The rest of the states should consider implementing similar legislation to provide legal and formal frameworks for donor-conception.

THAT the legal ambiguity in donor conception within Family Law has provided litigious loopholes. Such loopholes have created increased trends in informal and borderline immoral actions by desperate parents attempting to access and relate with their children. Lawmakers should thereby tighten the provisions in Family law to comprehensively incorporate the various essential aspects of donor parenting and linkage techniques.

THAT some of the donors are presently faced with legal and moral dilemmas regarding their involvement levels in the children's lives. The anonymity of their sperm donations should thereby be based on complete clarity around their probable rights around parenting.

THAT the intentions of parents are barely enough to declare statutory guidance around parenting of donor-conceived children considered anonymously. Biological relationships are recognized naturally in law for known parents. However, the unknown parent may not use the genetic linkage to prove parenthood. We propose, however, THAT children must only be allowed near guardians whose intentions are clear and evidenced by facts.