When we first enter this world of online sperm donation, one of our first thoughts is the child support risk if you’re the donor and if you’re the recipient the nightmare of a child custody battle happening is daunting. Fear not, none of our Sperm Donation World communities are yet to experience such a catastrophe since established in 2015 which highlights the rarity and still uncertainty on a predictable court ruling as there has been no precedence set. All this is written on my interpretation from speaking to lawyers and going over court findings it’s only an extensive opinion formed via a lot of research so therefore anything on this page is an informal legal opinion.
The laws all around the world are quite different from country to even the state within a country and you come across generic online versions of agreements that may have originated from a country other than your own, so it might sound good but can put you under false pretenses. So it’s always handy to seek lawyer advice if you still have any questions and seek clarification.
The definition of the word Contract is “A contract is a voluntary arrangement between two or more parties that is enforceable by law as a binding legal agreement.”. In most parts of the world, contracts are usually made between an employer and their employee, contracts between companies over business deals mainly involve a financial figure and commonly found in Business/Commercial Law. While you may have to check the acts and legislation you fall under pending your location, many Artificial Insemination acts don’t mention anything about recognizing an agreement or that they’re valid. Most laws around the world don’t allow you to make a contract over another person’s life.
In Australia for example the first court that would facilitate such a dispute would usually be the family court and from speaking to lawyers in this field each judge has their own personality and opinions on certain things so it can be quite biased from the outset eg. If the judge not LGBT friendly or religious and doesn’t believe in single mothers by choice? Ultimately this kind of judge is more likely to do what they think is in the best interests of the child, despite what you have agreed to written on paper.
However, some lawyers in Australia believe that having a written agreement shows understanding and intent by all parties and that a bit of care has gone into the planning of the potential child’s life. But unfortunately, the ones I have come across can’t reference a case where it has been successfully applied to.
However the question of valid evidence such as chat history via electronics means Facebook messenger conversations, text messages are likely to be just as valid. For instance what if you signed an agreement at let’s say 2019 and in an electronic conversation at a later date let’s say 2020 both parties agree to a change, does that new communication void the old non-binding agreement? Keeping all your chat history is valid evidence, screenshotting your posts, even keeping conversations with potential donors or recipients that you didn’t go ahead with can be used as evidence if needed in terms of demonstrating your character your stances and if your method is Artificial Insemination taking a picture of the cup that is date stamped can prove that artificial insemination conception was taking place and the pregnancy was achieved via that method.
Most lawyers won’t guarantee a contract to hold up in court and they will usually explain to you that it’s non-binding so you could never sue them if it wasn’t to hold up in court. Yet the reality is you’re more likely to die from a tragic accident eg. a car crash than to experience a legal issue in a Sperm Donation World community and to put it into perception the traditional way of having children of husband and wife is proving to be the biggest risk these days with over 50% of marriages ending in divorce and huge child custody battles that fill up our court system every day. The reality is of all the options of creating children these days it appears that sperm donation poses the least likely threat.
Online Donor Agreement templates
If you search long and hard you may come across some agreement templates online, but never fear I’ll list them here. So you don’t have to search far and wide. Some people edit these templates and add in their own extra points to suit their agreement. Remember as I previously noted though lawyers reccomend you seeing them and this is just a cheaper option but there is no guarentee they will work and no guarentee seeing a lawyer would work either.
Some people think they’re more hassle than they’re worth and happy to keep their online chat history as evidence. Some people prefer not to exchange too many details eg. conversations only occur on one platform ie. Messenger, they don’t exchange phone numbers, they don’t know where each other live (donation to be done at a hotel) or their employer’s details. In some countries, this information is required in order to summon to court and in many countries, you can’t summon someone to court via a Facebook message.
In terms of getting one of these documents validated, sometimes a 3rd party can sign and initial it to say they were a witness to it, some people also use a justice of the peace to witness one but this can be uncomfortable as some have been quite inquisitive or insensitive to them and if you don’t have a witness on hand a photo of the person signing the document. Or even, an electronic evidence confirmation that “Hey those papers were signed today with the said date”.
Overall It really comes down to your understanding of the law in your area and if they’re really beneficial or relevant in relation to where you live but also your comfort level, for instance, if you use an experienced donor you’re more likely to feel less like a possible target opposed to a donor donating for the first and potentially only time. Some people also go by the theory as well if you lack trust is it because you’re non-trustworthy yourself? There are many small details that go into a donor and recipient being a match, and sometimes an agreement can be a deal-breaker and most of the time it’s not even an issue so it’s up to you to weigh it all up.
If you have any more agreements that you have come across or had made up and want to share feel free to email them to email@example.com Ideally for Single mothers by choice or any Co-parenting ones. People have just made their own edits and changes as you can see version 1 and version 2 are quite similar but thought I’d upload both to see the variations people make.
Why has there been no court cases from a Sperm Donation World Community
Despite the thousands of babies born in various countries, we haven’t seen a dispute that has led to legal action and there are several reasons for this. Firstly it’s the education and awareness that this community provides. We provide a platform for all types of scenarios that suit each party or individual.
For example, women who are single and feel they may need that support whether it be financial support or carers support, or even both, they will put in their post looking to Co-parent. There are many gay couples, single men that haven’t had children that are willing to seek this sort of arrangement. There is no need for a recipient to trick a donor and take him down a costly path and have to spend so much time and energy fighting for something when she can seek a co-parenting arrangement, to begin with, which is more logical and a friendly environment for the child, also recipients don’t want to hand over visitation rights to a stranger either.
On the other side of the coin, we have seen men be very clear about donating or wanting to co-parent in their posts. We have even seen men that have helped as a donor and then a couple of years later they’re in a position of wanting to become a parent, we have never seen a donor then decide he wants to steal someone else’s child away from them, we have although witnessed a new post going up saying looking to co-parent. Common sense prevails in these sorts of things and people ain’t going to spend money going to courts when they don’t have to with no guarantee of them winning. A court case would take longer than 9 months in that time a new baby could be born and most people like to form that connection from a child from day dot.
Donating to someone in a Defacto relationship
As I keep mentioning the laws are all different in various postcodes throughout the world, but those who are legally allowed to marry and have a partner’s name on the birth certificate tend to be good places with stable foundation laws.
In Australia, we have had one known instance where a lesbian couple broke up and there was a lot of hate and spite for each other. The biological mother started dating and then formed a relationship with the donor after their breakup. The non-biological mother then wanted her name removed from the birth certificate and wanted to stop paying child support. The biological mother would not agree to this and wanted her to continue paying child support.
The lawyers found that even though the donor who now lives with the child full time and calls him dad he isn’t responsible financially for the child and the non-biological mother is the one liable to continue paying.
Single Mothers by Choice
Most countries discriminate against single mothers by choice, existing legislation hasn’t been updated to truly represent the current times we live in. They live in the past where they believe the men support the family and the women stay at home and take care of the child, they haven’t kept up with modern times of women having their own professional careers these days that are also able to support a child.
Most governments set up the fundamentals of having children under two supporting parents and while there is the potential to put up two names on a birth certificate this leaves the door open to uncertainty. This is why some donors discriminate against helping single ladies because the discrimination is passed on through legislation. This is why many people avoid signing online agreements with single mothers by choice as they feel the agreement could be more incriminating than helpful. Again check your local laws and if not sure speak to a lawyer.
Previous Australian Court Cases
Groth Vs Banks (2013): An interesting case and highlights that clinics in Australia can put you in a false sense of security. The donor, in this case, signed a piece of paper waiving his rights as the father, ultimately that piece of paper wasn’t worth what it was written on. Another case that found state legislation irrelevant.
This case proved in Australia that clinics can’t guarantee any extra protection from using a donor that saying doing at home insemination could provide. There is this misconceptions that clinics are safer option, but this case set precedent that isn’t the case.
More about this case.
Masson v Parsons (2019): This had to be the most media overhyped dramatized story linked to the donor world. Why? because this man simply wasn’t a sperm donor. Just because he provided his sperm sample in a cup due to his sexuality of being gay and both parties not interested in sexual intercourse with the opposing sex doesn’t mean he was a sperm donor. It was a Co-parenting relationship and this was distinguished by the fact that 1) He was on the child’s birth certificate 2) The child in question spent and had some custody arrangements to him 3) He financially contributed to the child and was involved in the decision making of the child’s upbringing. It wasn’t until the mother and her partner (now married) wanted to leave the country that this became an issue and from there this court case unfolded.
The first court hearing started at the family court and when the Parsons lost that they appealed which is then called the Appeal to the Full Court this is to consider again who was considered the legal parent of the child and whether or not there was an error of interpretation by the previous trial judge. In this case, it was deemed to be so and Masson then lost his status as the child’s father.
So here we go again now it was Masson’s turn to take more action and that he did escalate it to the high court of Australia which is federal law looking at the Family Law Act 1975 60H and overruling of the state act that was in favor of the Parsons.
The High Court specifically pointed out that this was not a case of a man who only provided his semen to facilitate the conception of the Child. This was a father who had consciously entered into the arrangement for the conception of the Child to become a father and had engaged in the Childs life since she was born.
Conclusion: Had Masson simply just been a sperm donor, his name not on the birth certificate, that he hasn’t titled dad by the child, wasn’t a participant in her life, and didn’t contribute financially towards her it would have ended with a different outcome in terms of him being recognized as the parent. This case also demonstrates Federal law trumping state laws. So are state laws really relevant?
More about this case.
Previous United States Court Cases
Recommended Australian Lawyers and law info
In Australia the Federal ACT the law by which we’re bound is the FAMILY LAW ACT 1975 – SECT 60H Children born as a result of artificial conception procedures (austlii.edu.au) a keynote is it doesn’t specify that the artificial procedure has to be done in a clinical procedure. However, some state laws are worded slightly differently. So based on Chinese whispers I have heard through the grapevine it may be best to go straight to the high court than to mess around and waste money in the family court or State ran court, but don’t quote me on that these are the questions they’re paid to give out.
We’re always looking for Australian Law firms to partner with our community in terms of representing and demonstrating an understanding specialty in donor agreements and would love to hear from interested firms preferably with experience. If you have used one please refer them to me.
|New South Wales||Nicole Evans Lawyers ||In 2019, Nicole established Sydney law firm Nicole Evans Lawyers and decided to dedicate her career to educate and assist LGBTQIA people who are in the legal system for whatever purpose. Nicole is touted in Australia for having the most experience with donor conception and understanding the law in this area. she is the go-to person that the media go to when they seek input. Nicole featured in Episode 11 of the Sperm Donation World podcast and author of the book Lesbians and the Law.|
|Western Australia||Apex Family Lawyers & Mediators||For those in WA this is the place to go for a consultation and agreement written up.|
Recommended United States Lawyers
We will rely heavily on our recipients from the United States to get in touch with us, with law firms that offer these types of Agreements. If you’re from a law firm, feel free to email firstname.lastname@example.org
Recommended International Lawyers
Same also applies for Lawyers all around the world that offer agreements, please get in touch,