Sunday, 14 September 2008

Qld: fatherhood just got more interesting

Back in May I posted about how Queensland Attorney Kerry Shine was seeking to amend the Status of Children Act so that the position of IVF dads becamse clear- if they were to donate sperm to single mums or a lesbian couple, then they would not be dads in law.

I had chased up Kerry Shine's office- twice- as to whether the proposed changes would cover men offering sperm to their female friends, but my calls were not returned and I was none the wiser.

Last week a friend told me that he was considering donating sperm via a website: http://www.free-sperm-donations.com/ . He ultimately had second thoughts.

At the time that Kerry Shine made the announcement, he considered that part of the reason for making the changes was so that sperm donors to IVF women would not be fathers and therefore would not be required to pay child support. He proposed that the laws be retrospective to 1988- when the Status of Children Act was enacted!

Because of my friend's situation, I looked over the weekend, and found that tucked in at the back of the Guardianship and Administration and Other Acts Amendment Bill were these proposed changes.

So what do they mean? If enacted, the Bill would make ensure that if a woman other than a married woman were to have a child by a sperm donor- if she were to go through IVF, then the donor will NOT be the father and will never have the rights of fatherhood unless and until he marries her. It doesn't matter if the woman and the man agree that he is to have those rights- that agreement is irrelevant.

However, if the man donates sperm to the mother other than through IVF, then it is possible that he might be considered to be the father, in which case there would be certain rights under the Family Law Act, including the presumption of equal parental responsibility, and the obligation to pay child support.

Although there are two decisions of the Family Court which in part dealt with Victorian legislation which would suggest that the known sperm donor would not be a father or parent under the Family Law Act and under child support legislation, there is no guarantee that that court will follow the same approach with the Queensland legislation, especially when the Attorney expressly stated that part of the purpose of the legislation was so that donors would not have to pay child support. If the legislation that he is proposing does not include known donations other than via IVF, then this of itself raises the possibility that known donors other than through IVF might be treated as fathers and liable to pay child support (and seek to make decisions about the child and spend time with the child, maybe even equal time, relying on the Family Law Act).

Here is the curiously drawn proposed section 18AA:


18AA Implantation procedure—Presumption as to status
where donor semen
used
‘(1) A reference in this section to a fertilisation procedure is
a
reference to the procedure of implanting in the womb of a
woman an
embryo derived from an ovum produced by her and
fertilised outside her body
by semen produced by a man who
is not her husband.
‘(2) If a woman has
undergone a fertilisation procedure as a result
of which she has become
pregnant, the man who produced the
semen has no
rights or liabilities
in relation to any child born
as a
result of the pregnancy happening because of the use of
the semen unless, at any time, he becomes the husband of
the
child’s mother
.
‘(3) The rights and liabilities of a man who
produced the semen
and becomes the husband of the mother of a child born as
a
result of a pregnancy mentioned in subsection (2) are the
rights and
liabilities of a father of a child but, in the absence of
agreement to the
contrary, are restricted to rights and
liabilities that arise after the man
becomes the husband of the
child’s mother.


What is clear from this section is that a sperm donor can never be assumed to be a father in this context, unless he marries the mother. What is more, any agreement that he might enter into with the mother (or for that matter her partner) is not legally binding unless he marries the mother.

So much for those gay fathers and lesbian mothers and co-mothers who want to enter into agreements- tough luck unless mum and dad are married!

As is usual with this area of law- get good legal advice first!

Then there is the curious section 18AB:


18AB Implantation procedure—Presumption as to status
where donor ovum
used
‘(1) A reference in this section to a fertilisation procedure is
a
reference to the procedure of implanting in the womb of a
woman an
embryo derived from an ovum produced by another
woman and fertilised by semen
produced by a man who is not
the husband of the first mentioned
woman.
‘(2) If a woman has undergone a fertilisation procedure as a
result
of which she has become pregnant—
(a) the woman who has undergone
the fertilisation
procedure is presumed, for all purposes, to have
become
pregnant as a result of the fertilisation of an ovum
produced by
her and to be the mother of any child born
as a result of the pregnancy;
and
(b) the woman who produced the ovum from which the
embryo used in the
procedure was derived is presumed,
for all purposes, not to be the mother of
any child born
as a result of the pregnancy.
‘(3) A presumption of law
that arises by virtue of subsection (2) is
irrebuttable.
‘(4) Also, the
man who produced the semen has no rights or
liabilities in relation to any
child born as a result of the
pregnancy happening because of the use of the
semen unless,
at any time, he becomes the husband of the child’s
mother.
‘(5) The rights and liabilities of a man who produced the
semen
and becomes the husband of the mother of a child born as a
result of
a pregnancy mentioned in subsection (2) are the
rights and liabilities of a
father of a child but, in the absence of
agreement to the contrary, are
restricted to rights and
liabilities that arise after the man becomes the
husband of the
child’s mother.’.



Again the same scenario applies- although in this case the mother is carrying sperm of the father (again only via an IVF type procedure is good enough for this legislation) and the egg of another woman. The woman giving birth would be the mother. The other woman would not, and the man would have no rights (and no obligation to pay child support) unless he married the mother.

What is curious about this section is what it does not say. Currently if a woman (in this case the mother) were to do this, then she might fall foul of the Surrogate Parenthood Act 1988. I won't go into the technicalities here but potentially under that Act, both women and the man might be committing an offence. The new section would make it clear that that behaviour (as described precisely in section 18AB) is not that of a surrogate and therefore an offence is not being committed.

The explanatory notes to the relevant part of the Bill state:


The objectives of this Bill are to –...
•• amend the Status of Children
Act 1978 to correct an anomaly in
provisions relating to in vitro
fertilisation procedures for
unmarried women and married women who underwent
such
procedures without the consent of their husband.


Amendments to Status of Children Act 1978
The purpose of the Status
of Children Act 1978 (SCA) is to protect children
by conferring parental
status on adults to enable them to exercise the
powers and responsibilities
of parents under statute and common law to
care for their children.
The
SCA creates parentage presumptions for the married mother of a child
born as
a result of artificial insemination or a procedure where an embryo
fertilised
outside her body is implanted in her womb (in vitro fertilisation).
The SCA
also creates presumptions of law for the mother’s husband or
male de facto
partner. The donor of semen or ovum is presumed to not have
produced the
semen or ovum and not to be the father or mother of the child
born as the
result of such a procedure.
However, where an in vitro fertilisation
procedure is performed on an
unmarried woman (a single woman or woman in a
same sex relationship)
or a married woman without the consent of her husband,
the donor of
semen or ovum is not excluded from any responsibilities or
rights in
relation to a child born as the result of such a procedure.
This
unintended anomaly creates uncertainty for the status of children born
as a
result of such procedures and the rights and liabilities of donors
of
Guardianship and Administration and Other Acts Amendment Bill
2008
semen or ovum. The Bill addresses this anomaly by clarifying
the
parentage status of children and the parentage status and rights
and
liabilities of donors.

The Bill does not allow for the NSW situation of recognising the father as the father if he desires it.

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