The statutory rights of a child trump any donor agreements entered into before her birth, according to a recent judgment.
Judge Small took this approach in a recent case between a gay sperm donor and a lesbian couple who wanted to have a child. The parties ended up in the Federal Circuit Court arguing about whether the donor should have equal parental responsibility, with the lesbian couple, for the child, and as to the amount of time that the child should spend with him. The case is a clear illustration of the danger for all concerned when a known donor arrangement goes sour.
Even though the donor was not a “parent” as a matter of law, and therefore not liable to pay child support, the parties had agreed that he would pay the equivalent to child support that he might have had to pay if he were a parent.
Her Honour decided that the lesbian couple, who were the primary attachment figures for the child, should have sole parental responsibility, in part because they needed support for their parenting, and the court’s imprimatur.
The donor, who had been an old friend of one of the women, initially sought that the child, known as X, live on a week about basis, then changed that to a split of 9 days a fortnight with the couple, and 5 days a fortnight with him. The couple were vague about the amount of time X should spend with the donor, who was “committed to being X’s father”, other than day time contact.
Her Honour ruled that the child spend a graduated amount of time with the donor, to occur weekly, including one weekend a month, and 2 weeks holiday time a year.