Tuesday, April 16, 2002

ABC Radio National - "Sperm Donors and the Law" on The Law Report

Damien Carrick: Now for something completely different: the legal rights of sperm donors, and the wider legal cloud which surrounds families that don't fit the heterosexual, two-parent model.

Recently in the case of Re Patrick, the Family Court rejected attempts by the mother of a two-year-old child and her lesbian partner, to restrict the child's contact with his biological father, a gay man who agreed to be a sperm donor.

The couple sought to restrict contact between father and son to just six hours a year. But the court rejected that application. And then, at the father's request, extended a previous consent order allowing fortnightly contact, to allow for increased contact in the future, by 2004 extending to overnight stays, alternate weekends and some school holidays.

So what led a middle-aged gay man (let's call him Jack) to agreeing to father a child?

Jack: I had a friend who had three children with a lesbian couple through donor insemination, and I'd met his children and saw his lifestyle and saw how it had changed his life.

Damien Carrick: So when you were discussing with this couple, what sort of understanding did you reach about what level of involvement you'd have?

Jack: Well I said to the mother that I wanted a similar arrangement, that I'd like to spend one or two days a week with the child, and she was quite agreeable to that, and said that that would suit her plans because she wanted to return to work. So we were hopeful that we would be able to come to mutually agreeable arrangements.

Damien Carrick: Now only a few months into the pregnancy your relationship with the couple soured and they ceased contact with you. The child was born, and after some counselling, it was agreed that you'd have fortnightly contact with the child, but the couple then went to the Family Court seeking to restrict your contact to just something like six hours a year. Now the Court's just rejected that application; you must be relieved.

Jack: Oh it's an enormous relief. I felt that, well it was very much an all-or-nothing situation because their position was that I could see Patrick twice a year under their supervision or their nominated person's supervision, and my position was that I wanted regular fortnightly contact. So it was a massive chasm between the two positions. I was just overjoyed to be granted the regular contact that I sought.

Damien Carrick: So Jack, you now see your child every two weeks; do you consider yourself Patrick's father?

Jack: Yes I've always considered myself his father, and it was perfectly clear to the women and perfectly clear to myself that I intended to be a father from Day 1, so I wouldn't have become involved had I not wanted to be a father. I understand that there are situations where the father is an anonymous donor, or is a known donor but not involved. But that wasn't what I sought, that wasn't what I wanted, and I made that clear.

Damien Carrick: Presumably you're not paying any child support; can you see why some people might say this man has all the rights but none of the responsibilities?

Jack: Look, I am contributing. At the moment I'm putting a small amount of money aside for my son, but that's only because I've got large legal costs that I have to cover first, but when those are out of the way, which will be more than 12 months away, then I will be contributing into my own fund for Patrick's education and for clothing and things like that, and upkeep. But the mother and her partner have resisted any willingness on my part to contribute, and I respect that, because the mother did say when we first sat down that she didn't want to be financially dependent on me. That was her position then. So I suppose I'm wanting to contribute in a way that is not something that they don't want. So I may have to contribute in my own way, but I can contribute in other ways.

Damien Carrick: Jack, not his real name, speaking about his decision to become a father.

Jack's lawyer is Kimberley Hunter, solicitor with Clancy and Triado. She says the decision, the first of its kind in Australia, is an important one which makes a crucial distinction about Jack's relationship with his son, Patrick.

Kimberley Hunter: They found that he's a father; he's not a parent under the Family Law Act. He's someone who has a right of contact and he's someone that's significant to the care of and development of Patrick. And the Court found that it was in Patrick's best interests for Jack to have a continuing relationship with him.

Damien Carrick: One commentator has said that your client achieved the same result as would a father in a heterosexual relationship which had broken down after ten years, and he'd been living with the family for ten years. And that maybe the relationship between your client and Patrick was of a different quality, because your client was a sperm donor, and hadn't been in a relationship with the mother. What's your response?

Kimberley Hunter: Well I'd say to that firstly that generally if you've been living in a family for ten years and the relationship broke down, you would find that the contact would come through to alternate weekend, school holiday contact, contact in the off week for dinner, Father's Day etc. significantly more quickly than the regime that's been set out by these orders. Having said that, certainly there is some thought out there, exactly that in terms of sperm donors being different in relation to the heterosexual arrangements in families. However the child still has a mother and a father, and a need to be known by both, and certainly there are options there in terms of having an unknown donor, and going through other services. The biological mother made the decision to have a known donor, that was her evidence in this matter, and I think what this case brings out is the importance for gay and lesbian families in terms of getting agreements, getting advice in relation to these types of arrangements. It's not new, this type of gay and lesbian family unit has been around for many years in these types of arrangements, and there's many of them that don't get to court, or many of them that do get to court and they're negotiated. But what this case certainly highlights is the fact that the importance of actually the planning stages, making sure you tease out all those issues, making sure that you'll consider the options, making sure that you have some counselling. If for example people do not want there to be any contact, they will probably go through Albury or New South Wales, but if you're going to have a known donor, you certainly have to consider these types of options and be open and willing for them.

Damien Carrick: When you talk about going through to Albury, you're talking about the phenomenon in Victoria known as reproductive tourism, where single women and lesbians will go to Albury-Wodonga on the border, where they can access anonymous sperm banks, which is available to them under New South Wales law, but not available to them under Victorian law as it presently stands. And of course, the legal status quo is a little bit up in the air at the moment, because there's a case before the High Court looking at that very issue.

But those agreements may well be useful in terms of setting out what everybody's expectations are, but they wouldn't be necessarily legally binding. You can't contract to be a parent, it's not like a financial transaction, it's not like buying a house.

Kimberley Hunter: That's exactly right, it's like if you enter into arrangements for child support as part of that agreement, that's not binding, that can be set aside. Exactly the same with this, the Court could set it aside. But what it does, is it puts in place the parties' intentions, and it also focuses the parties on thinking about those issues, perhaps having some counselling or talking about those issues beforehand. And if there's reasons for that to change after the birth, and they're valid reasons, I suppose that's when you'd go to court, in terms of something's come up that concerns you. But it certainly would be much better I think if everyone entering into these types of arrangements seeks that type of advice prior to conception.

Damien Carrick: And in legal terms, do you think that the status quo, the legislation we currently have on the books and the case law, adequately caters for this group of people, for sperm donors and for gay lesbian parents more generally?

Kimberley Hunter: No, I don't. I think that there does need to be some consideration in relation to the laws being changed. In terms of the anomaly in relation to Jack having significant contact, what would be increasing contact, but actually not being a parent, and not giving the parental responsibilities of a parent. He doesn't have the joint long-term parental responsibility in terms of making decisions for such things as health, education, religion; what the judge has given him in the judgement is day-to-day responsibility effectively, for when Patrick's with him.

Damien Carrick: Kimberley Hunter, solicitor with Clancy and Triado.


Damien Carrick: Jenny Millbank is a senior lecturer at Sydney University Law School, and an expert in gay/lesbian legal issues. She says 20% of lesbians live with children, and a further 20% plan to have children within five years, most with known donors. So getting the legal framework right is important for an increasing number of children.

Jenny Millbank has concerns about the message the Re Patrick decision is sending to lesbian families. She thinks that Jack was very lucky to gain such a high level of contact with his son.

Jenny Millbank: I think this amount of access is more comparable to a heterosexual couple breaking down, the two camps living separately, and the child going backwards and forwards between them. So although the Court is at some pains to say that the Court's not discriminating against them as lesbian parents, and that the co parent mother does have an important relationship with the child, I think the position in some ways weighs against that, in that the child is not being seen as in a stable family unit.

Damien Carrick: Playing Devil's Advocate though, you could say that the respect which the relationship of the two mothers is given is being upheld, but there's also an acknowledgement for this other, admittedly quite legally ambiguous relationship with the biological father.

Jenny Millbank: Oh look, I don't mean to sound too critical of the decision. I do think it's right that any person who has a close relationship with a child be able to claim access, and that's one of the things about the Australian Family Law Act that was revolutionary, that it put social relationships and emotional relationships above biology and allows any person to bring a claim, and the gay and lesbian community has always been very welcoming of that, because it has meant that, for instance, co mothers can use the Court as well as biological mothers, and that's very important, and in fact lesbian families have used the Court to grant consent orders, parenting orders to lesbian mothers and co mothers equally over the children they're raising, and the Court couldn't do that if it was just sticking to strict legal categories of parents. So I think it's right that the Court does recognise the donor's role and that he does have access to the Court. My query about it is the fact that they're trying to fit a round peg into a square hole in terms of the way they're conceptualising his relationship with the child.

Damien Carrick: Well if we were going to reconstruct the law, what shape would you make the legal hole, what kind of legal framework would you create to make the system as workable as possible?

Jenny Millbank: It's a really though question, and I think it's hard to imagine a legal category when you don't even have the words for something as a social category, and I think even saying gay donor dads is a mouthful when I'm trying to get in 'donor', I'm trying to get in 'dad', and they're gay guys who aren't really either of those things, and we haven't yet conceptualised the category I think, and it's something that I think lesbian and gay communities are going to have to do at a very grassroots level is talk about well what do we intend when we form families in this way, what do we mean? And again, the sociological literature, and I think this is an important point, runs quite contrary to what happened in this case, and there's been a lot of media around this case, a bit of a beat-up I think in the mainstream press. In fact most families go in exactly the opposite direction: the mothers have a known donor, they anticipate a small amount of contact and they have the child, and the donor is besotted with the child and the mother's really happy to have him around and in fact most of them end up having significantly more contact than anyone had anticipated or agreed, and everyone's happy about that. The mothers get a break and the donor provides free child care, and it tends to be a relationship that changes, and changes in a way that is more positive than the parties anticipate when they're entering into the agreement in the first place. So we need to come up with a way that honours people's intentions, but it's also cognisant of the fact that those relationships change through the child's life.

Damien Carrick: When lesbian women seek a known sperm donor, do they tend to head towards gay men in order to provide that service?

Jenny Millbank: Yes, and again the literature both from Britain and from Australia supports overwhelmingly it's gay men who've been chosen.

Damien Carrick: Why do you think that is?

Jenny Millbank: I think it's for a number of reasons. I think that there's a sense of gay men being part of the same community, and having an understanding of what a lesbian family means, that they will support that family structure and not interact with it or with the child in a way that's going to be homophobic or that's going to deny the child reality of their family life. But I also think that if it comes down to a dispute between the partners, between the parties rather, I think that some women are quite concerned that if it's a straight man that he's got a trump card as a heterosexual person against a homosexual family, that he's going to be in some way privileged.

Damien Carrick: Jenny Millbank, senior lecturer at Sydney University Law School.

The Court found that Jack was not a parent under the Family Law Act, but he was entitled to contact as a person with an interest in the care, welfare and development of the child.

Helen Rhoades is a lecturer in Family Law of Melbourne University. She says that this section of the act allows all sorts of people to get contact with the child.

Helen Rhoades: I think there are certainly applications for contact by grandparents and aunts and uncles etc. This section is also used by lesbian co-mothers to get parenting orders. It's also being used by the Family Court, quite recently in the Torres Strait, to give legal recognition to Torres Strait Islanders who have adopted children under a cultural practice which does not have legal recognition. Therefore they're not adoptive parents and yet they can get this order from the Family Court that gives them all of the parental responsibility that a parent would have.

Damien Carrick: Tell me a little bit more about that; presumably it's a case where you've got a clan group where a number of the women take mothering roles?

Helen Rhoades: No, what you're describing there is more in the nature of what happens in Aboriginal communities, and in Torres Strait Islander communities, there's a complete relinquishment of the child from one family to another, and it is done on kinship lines. However the adoptive parents, if I can use that terminology, it's not the terminology they would use, but, do stand in the same sort of parenting position that you or I would parenting our children. It's not a dispersed care-giving arrangement, as occurs in Aboriginal families.

Damien Carrick: It's interesting, isn't it, because we think of the family being a nuclear family, and changes to that, or departures from that, as being an indication of contemporary social change, but in fact family structures have always been quite complex.

Helen Rhoades: I think that's right, and I think that's one of the shortcomings of the Family Law Act provisions as they stand, but they're very much geared to a model that is about heterosexual families with a biological mother and father who've been in an intimate relationship, who shared parenting together, and who've now separated. So that cases like Re Patrick really challenge the applicability of the provisions as they stand.

Damien Carrick: As an expert in Family Law, what for you are the most important features or points to be gleaned from this case?

Helen Rhoades: Well I think there are a couple. One of them is that the case certainly to me seems to reaffirm the priority of the biological tie when it comes to responsibility for children. Justice Guest has made very strong indications in his judgement that there needs to be legislative reform to recognise the parental status of someone in the position of a sperm donor here. And that's very much because he has a biological tie, and wants to take a parenting role. And you could contrast that with the way in which he has constructed the role of the co-mother in this case, who also has no recognition as a parent under the Family Law Act, but in that case there was no suggestion that there should be some legislative change to recognise the position of people in her position. And I see the difference as being the biological tie. Whereas the experts in the case, the psychologist and the psychiatrist who gave evidence in this case, both talked about the importance of psychological relatedness over biological relatedness.

Damien Carrick: So what kind of legal architecture could we build which might acknowledge the status, parent or any other kind of status that we kind of manufacture, to deal with people like the co-parent, the lesbian partner of the mother, and the sperm donor?

Helen Rhoades: I think that's an extraordinarily difficult drafting question Damien. I think that the Family Law Act should reflect more models, a number of different models of families. There was a Full Court decision several years ago called Re CP about the care-giving practices of Tiwi Islander families, and that was a case in which a number of women, the biological mother and some of her sisters and aunts, had got together and sought an order seeking residence of the child as a group, no one person was nominated as the primary care giver, and the way that the legislation stands, it really can't cope with that concept. It's really based on the notion of there being two parents, and in that case, the Full Court of the Family Court called for legislative reform for the Family Law Act to better reflect these others sorts of care-giving arrangements. To date, nothing's been done about that, and it would be a very difficult thing to do. But I think that there's room to have a number of different models rather than just the kind of paradigms separated biological parents model.

Damien Carrick: Helen Rhoades, lecturer in Family Law at Melbourne University.


Damien Carrick: That's it for The Law Report this week. A big Thank You to Law Report producer Michael Shirrefs, and to technical producer this week, Carey Dell.

[Link: Original Transcript]

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