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Talking Turkey
TALKING TURKEY: A legal guide to self insemination
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Contents • Introduction • Definitions • Frequently asked questions: • Is the donor regarded as the legal father? • What happens if the donor is named on the birth certificate? • What happens if the donor is not named on the birth certificate? • Is the donor liable for child support or maintenance? • Can the mother prevent the donor from having contact with the child? • Is the issue of homosexuality taken into account by the courts? • Does the donor have any rights regarding the child? • Does the co-parent have any rights regarding the child? • What is the legal status of written agreements? • Can a co-parent adopt the child? • Can the mother state in her will who the child should live with if she dies? • What if the mother's will does not say who the child should live with? • What are the inheritance rights of the child? • Will Centrelink consider the co-parent's income for Parenting Payments? • Can health insurance be obtained at the reduced "family rate"? • Are informal donor insemination arrangements legal? • Can the donor charge a fee for supplying semen? • What is the law regarding screening for HIV or other health risks? • Contacts • Reading • Internet Sites • Acknowledgements Introduction While artificial insemination is available to women through fertility clinics in NSW, not all fertility services provide access to lesbians or to 'single' women. It is likely that this is unlawful discrimination under the Anti Discrimination Act 1977 (NSW). However no cases have been run in NSW on this point yet. The Inner City Legal Centre is regularly approached for legal advice by lesbians, their partners and prospective donors who are planning to have children through informal, or private, donor insemination arrangements, rather than through fertility clinics. This publication is an attempt to answer some of the most commonly asked questions about the legal rights and responsibilities of the parties involved in such arrangements in NSW. The information in this publication should be used as a guide only and should not be relied upon as legal advice. This is because many of the issues surrounding arrangements of this kind have not yet been fully tested by the law. The law is evolving as it is called upon to deal with situations which were never contemplated by the law makers. It is therefore difficult to give a definitive answer to some of the questions raised, and often more questions will arise than can be addressed in this publication. A number of penalties are referred to in this publication. The private nature of these arrangements means that it is difficult, if not impossible, for them to be enforced. To date there have been no known prosecutions for any of these offences. This guide is intended for people entering into donor insemination arrangements, and conceiving, in NSW. It does not deal with the legal position in other States. However, because much of the relevant legislation is Commonwealth legislation - such as the Family Law Act 1975, the Child Support (Assessment) Act 1989 and the Social Security Act 1991- some of the information will be applicable in all States. People in other States should seek the advice of a solicitor. It is worth stating that while this publication deals with informal arrangements only, the information concerning co-parents is the same regardless of whether the mother self-inseminates or is inseminated through a clinic. This guide reflects the law as it presently stands. However the law may change in the future. If the current law were to change in the future, it is unlikely the new law would be retrospective (ie: make illegal something which was legal at the time it was done). Finally, the "definition section" which follows explains some of the legal and other terms referred to in this publication. At the risk of stating the obvious, "donor insemination" refers to the process of artificial (ie: self) insemination. It does not include the situation where the parties have sexual intercourse but make a conscious decision that the man is to be regarded purely as a donor. The information in this publication only applies to artificial donor insemination arrangements. Definitions for the purpose of this publication Child: means a child born as a result of a donor insemination arrangement. Contact: this is a legal term which has replaced the old term "access". It refers to the time spent between the child and person(s) other than the people the child lives with, and the extent of that contact. Co-parent: the lesbian partner of the mother who shares the responsibilities of caring for the child. Donor: because the legal position is that a sperm donor is not the legal father of the child (see below), to avoid confusion "donor" is used in the publication. However it is recognised that there will be a range of relationships and levels of involvement between sperm donors and children born as a result of a donor insemination arrangement, and that some donors will be regarded by the parties as the father of the child. Parenting orders: are orders by the court which may deal with one or more of the following issues: • who the child will live with, • who else will spend time with the child and to what degree, • other aspects of parental responsibility known as "specific issues" orders (see below). Parenting orders can be made by consent between the parties, or imposed by the Family Court in situations where the parties can't agree. Residence: the legal term which has replaced the old term "custody" and refers to who the child lives with. Specific issues orders: orders made by the court about anything other than residence, contact or maintenance. They are orders which give or take away the responsibility for the long term or day to day "care, welfare and development" of the child, such as education, medical treatment, clothing and so on. Such orders can be made in the favour of one person or jointly with another person, or people. Frequently Asked Questions • Is the donor regarded as the legal father? In NSW the donor does not have automatic parental rights and responsibilities regarding the child. This is because the Status of Children Act 1996 NSW states that the donor is presumed not to be the father of the child. This is the case even if the donor is named as the father on the birth certificate or any other document. It is also the case whether or not the donor is known to the mother. If the mother is married to or in a de facto relationship with another man, that man is presumed to be the father unless he clearly indicates that he does not consent to the insemination. If the mother is not married to or in a de-facto relationship with the donor or any other man the child is regarded by the law as not having a father. • What happens if the donor is named as the father on the birth certificate ? Some people may want to record the name of the donor on the birth certificate so that the child can later identify him. However, it should be noted that certain difficulties may be experienced by the mother and the child in terms of their day to day lives as a result of putting the donor's name on the birth certificate. There are, of course, other ways of ensuring that the child knows who he is. Accessing family payments through Centrelink and applying for a child's passport are discussed below as examples of the effects of naming the donor as the father. Parenting payments and child support In the case of B v J (1996) the Family Court held that for the purposes of child support under the Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth), a sperm donor was not assessable as a "parent" even though he was registered as the father on the birth certificate, and therefore he was not liable to pay child support. When a woman applies to Centrelink for more than the minimum standard rate of Family Allowance she would normally be required to demonstrate that she has taken reasonable steps to claim child support from the father named on the birth certificate. Where the donor's name is on the birth certificate, the mother would have to prove to Centrelink that the child was conceived through donor insemination and that therefore she cannot legally pursue him for child support. Involvement by a Centrelink social worker may be required if the donor insemination was not done through a clinic. While the law is clear that the donor is not the legal father and not liable for child support, at present these laws, and Centrelink policy and practice, is/are being applied in a highly discretionary manner by Centrelink officers. If Centrelink decides not to accept the evidence provided of a donor insemination arrangement and decides that the mother should take reasonable steps to pursue child support from the donor, she can appeal to an authorised review officer, and then to the Social Security Appeals Tribunal, if necessary. If the mother did attempt to claim child support from the donor, he could avoid liability by demonstrating that the child was conceived through a donor insemination arrangement and therefore he was not liable to pay child support. (B v J) Having to explain the above to Centrelink may mean admitting to an offence under the Crimes Act 1900 (NSW) (see below), although the prospects of being prosecuted in this context are slim. It is also important to note that it is an offence under the Social Security Act to make a false or misleading statement in connection with applying for benefits. While the case of B v J made it clear that the donor is not liable for child support under the Child Support Scheme, in some circumstances the Family Court can make orders for child maintenance outside the Child Support Scheme. The position of the donor is still unclear and the Family Court is yet to make a decision about whether a donor would be liable to pay child maintenance under the Family Law Act, as opposed to the Child Support (Assessment) Act. Legal opinion remains divided on this issue. Passports By putting the donor on the birth certificate it would appear to the Department of Foreign Affairs and Trade (DFAT) that his consent would be required before a passport could be issued. The people who are named as the parents on the child's birth certificate must consent to the issuing of a passport for a child under the age of 18, unless: • the child is married or has previously been married, • the Family Court has given permission for one parent to remove the child from Australia without the other parent's consent, or • where a court order has been made to alter parental responsibility, it is those people named in the order who must consent, or • under the Passports Act 1938 (Cth) a passport can be issued without both parents' consent in "special circumstances". It may be that "special circumstances" might apply where the mother explains that the person registered as the father is a donor and is therefore not legally recognised under NSW law as the father (Status of Children Act). Some evidence of this fact will be needed to satisfy DFAT. It is unclear what documentation would be accepted, and it may be that a Family Court order would be required. A decision of DFAT not to issue a passport is an administrative decision and can be appealed. The first appeal is to the Minister and must be done in writing and within 28 days of becoming aware of the decision. The Minister's decision can be appealed to the Administrative Appeals Tribunal. That appeal must also be done within 28 days from the date the Minister's decision is received. Possible breach of the Crimes Act There is a view that if the person who registers the birth knows that the donor is not the legal father, the inclusion of his name on the birth certificate may breach the Crimes Act 1900 (NSW) by "wilfully" making false statements in respect of a birth. However there has never been a case involving this issue and the view is not universally held. The penalty for making a false statement is up to 6 months imprisonment or a fine of up to $110. It is possible to amend details on a birth certificate by applying to the NSW Registry of Births, Deaths and Marriages. • What are the implications of not putting the donor's name on the birth certificate? Since the donor is deemed not to be the father there is no obligation on the part of the mother to name the father. Centrelink may require the mother to name the father in order for it to be satisfied that she has taken reasonable steps to obtain child support. Should this occur the mother will have to explain that the conception was as a result of a private insemination arrangement and that there is no legal father (see the discussion above under ‘Parenting payments and child support’). • Is the donor liable for child support or child maintenance ? No. See above under ‘Parenting payments and child support’. However, if the donor has made a promise to the mother to financially support the child and then reneges on that promise, he may be forced by the court to fulfil that promise. (See the discussion below on W v G under 'Does the co-parent have any rights and responsibilities regarding the child' for how this might happen). • Can the mother prevent the donor from forming a relationship with the child, or exclude the donor from having residence of or contact with the child? Under the Family Law Act 1975 any person who has a concern for the "care, welfare or development of the child" - and this could include the donor - can apply to the court for parenting orders. The mother cannot therefore prevent the donor from applying to the court for such orders. Parenting orders can be made either by consent between the parties, or where agreement cannot be reached, by the court on the application of an interested party. In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". In determining what 'the best interests of the child' are, the court must consider a number of factors, including, but not limited to: • the expressed wishes of the child, considering the child's age, maturity and any other factor that may have influenced the child; • the child's relationship with each parent and with any other person; • the current arrangements for the child and the effect a change would have on the child; • the effect a separation from either parent, other children or any other person may have on the child; • the capacity of each parent (or person) to provide for the child's needs, including emotional and intellectual; • the child's maturity, sex and background, including contact with culture or traditions of indigenous people; • the need to protect the child from physical or psychological harm; • each parent's (or person's) attitude to the child and to the responsibilities of parenthood; • any family violence involving a child or a member of the child's family; • the court's preference to make an order that is least likely to result in further proceedings regarding the child; • any other fact or circumstance the court considers relevant. The court will therefore consider the nature of the donor's relationship and level of involvement with the child. For example, if the donor has been very closely involved in the child's development and has had regular contact with the child for several years, it is unlikely that he would be denied ongoing contact with the child. • Will the issue of homosexuality be considered by the court when making orders regarding a child ? In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". The sexuality of the parties may therefore be a factor that the Family Court will consider when making its decision about what is in the best interests of the child. While in the past the Court has refused to grant parenting orders to gay men or lesbians because of their sexuality, there have been recent cases where residence has been awarded to lesbian mothers and gay fathers. Ultimately it will depend on the individual judge hearing the case, and all the circumstances of the particular case. • Does the donor have any 'residence,' 'contact' or 'specific issues' rights regarding the child? The fundamental focus of the Family Law Act is on the child's, rather than the parent(s) rights. Therefore no person has automatic rights regarding the child. Because the donor is not the legal father (Status of Children Act) the court will not automatically make orders for the child to have contact with him. As discussed above however, he can apply to the Family Court for parenting orders as a person concerned with the "care, welfare or development of the child". • Does the co-parent have any rights or responsibilities regarding the child? There are no automatic legal rights or responsibilities that apply to the relationship between the co-parent and the child. However, the case of W v G (1996) has shown that a co-parent may be ordered by the court to accept some responsibility for financially supporting the child (child maintenance). In that case the co-parent was ordered to fulfil a promise she had made to the mother to financially support the children, because she had encouraged the mother to believe that she could rely and act on that promise of support in becoming pregnant. The Property (Relationships) Act 1984 now enables same sex de facto partners (ie: people who live together as a couple) to go to the District Court or NSW Supreme Court for orders about property division on the breakdown of a relationship. This can include claims for child maintenance as part of a property division where both parties have taken parental responsibility for the welfare of a child. This is a cheaper and easier way of pursuing child maintenance. A co-parent can also gain legal recognition of her relationship with the child through the courts. She can apply to the Family Court for parenting orders regarding the child as a person "concerned with the care, welfare or development of the child". This can be done in two situations: • Where the mother and co-parent both agree that the co-parent's relationship with the child should be legally recognised The Family Law Act enables joint parenting orders to be made by consent between the parties in favour of both the mother and the lesbian co-parent. This is the most effective way for the mother and co-parent to legally share the rights and responsibilities regarding the child. Independent legal advice should be obtained when making parenting orders by consent. • Where there is a dispute between the mother and co-parent regarding the child In the event of a dispute between the mother and co-parent the Family Court will resolve the dispute and make orders based on the "best interests of the child". The court will take into account the factors discussed above. The co-parent may be in a stronger position if a joint parenting order has already been made. Both parties will be required to undergo counselling with a Family Court approved counsellor prior to a final determination of the dispute. • What is the legal status of any written agreement or contract between the donor and mother, or the mother and the co-parent? Would an agreement of this kind be legally enforceable ? It is not certain whether written agreements regarding the parties' rights and responsibilities in relation to the child are legally enforceable as this issue has not been tested in Australia. Some agreements regarding rights and responsibilities between donors and biological mothers have been enforced in the United States of America. However it would appear that at this time Australian courts are not prepared to follow the trend emerging in America. While agreements between the donor and mother and mother and co-parent may not be legally enforceable, they may be useful as evidence of the parties' intentions in any future court action. The process of making such an agreement can in itself be a very useful one, as a means of assisting the parties to think about and articulate their needs and/or expectations of the arrangement. This can also help prevent disputes arising in the future. It is important to note that agreements of this kind are '"tailor-made" to suit the particular circumstances of the parties involved. One person's agreement should therefore not be used as a 'pro forma' document for someone else. Specific legal advice should be sought on this point. • Can a co-parent formally adopt her partner's child where that child was conceived through an informal donor insemination arrangement ? Under the Adoption of Children Act 1965 (NSW) a child becomes the child of the adoptive parent(s) and the legal relationship with the birth parent is severed permanently. At present gay men and lesbians are not legally able to adopt as a couple, but may apply to adopt a child as a single person. If a co-parent were to adopt the child of her partner it would mean that the mother would no longer be considered the legal parent of the child. For this reason adoption is not usually considered to be a feasible option. It should be noted that privately arranged adoptions are illegal. However, much of what the mother and co-parent may be wishing to achieve when they think about adoption - the legal sharing and recognition of rights and responsibilities regarding the child - may be achieved by obtaining parenting orders from the Family Court by consent. (See above under 'Does the lesbian co-parent have any rights or responsibilities regarding the child?'). Specific legal advice should be sought about this. • Can the mother state in her will that the co-parent is to have residence of the child if she dies? A legal parent can nominate someone in their will to be the guardian of the child(ren) in the event of the parent's death (a testamentary guardian). Guardianship of this nature becomes particularly important where there are no existing orders from the Family Court setting out who will be responsible for the care of the child. The Family Court no longer makes orders appointing people guardians of children, but may make specific issues orders as well as parenting orders. For example if the mother dies the Family Court may make orders granting residence to the co-parent and orders that she alone or with some other interested person share responsibility for the long term care, welfare and development of the child. The mother's nomination of a testamentary guardian can be challenged in court by other interested people such as grandparents, or in some cases the donor. Although the mother's nomination may not be followed by the court, it is still recommended that provision be made in a will so that the court can assess the deceased's wishes. Any decision of the court will ultimately depend on the court's assessment of the child's best interests. • What if the will doesn't nominate a testamentary guardian? Any person with an interest in the "care, welfare or development of the child" - including a co-parent and the donor - can apply to the Family Court for parenting orders on the death of the mother. Any existing contact, residence or specific issues orders would be taken into account by the court, and the court would make such orders as it considers are in 'the best interests of the child'. It should be noted that regardless of whether or not there is a will nominating a testamentary guardian, if the co-parent has had a significant involvement with the child and its development for several years, a court would be unlikely to discontinue this, as to do so would probably not be in the best interest of the child. • What are the inheritance rights of a child born as a result of an informal donor insemination arrangement. Any person is free to dispose of her or his property (estate) as s/he sees fit. Therefore, the mother, co-parent, donor or the donor's partner can make provisions in their wills for the child. If the mother dies intestate (without a will) the rules of intestacy will apply. Under recent amendments to the Wills, Probate and Administration Act 1898 same sex de facto partners (ie: people living together as a couple) can now automatically inherit all or part of the estate, depending on how much is in the estate. Depending on its size, the (biological) children of the deceased may also inherit some of the estate. A child born as a result of artificial insemination is not entitled to a share of the donor's estate because the donor is not legally the father of the child (Status of Children Act ). A dispute may arise in cases where the donor's name is on the birth certificate and the child makes a claim against the estate, whether the donor had died with or without a will. Unless there is proof of an artificial insemination arrangement the court is likely to presume that the child is the legal child of the father. Such a dispute is more likely to arise when the child is an adult and the people who may have knowledge of the donor insemination arrangement may be deceased. Any will can be contested under the Family Provisions Act 1982 (NSW) if it is considered that the will maker has failed to make proper provisions for relatives or dependants. Claims for a share of the estate can be made under the Act even where there is no will and proper provision has not been made. Under the Family Provisions Act a child whose long-term welfare has been the responsibility of both the mother and the co-parent can seek part of the co-parent's estate in the event of her death. A child may be also able to claim against the estates of the donor or donor's partner under the "other dependant's category" of the Family Provisions Act where provisions have not been made for the child. The child would need to establish that s/he was a member of the deceased's household and was wholly or partly dependent on the deceased at some time. This type of situation could arise where the donor and his partner agree to play a regular part in the life of a child conceived through a donor insemination arrangement. The usual limitation period to make a claim under the Family Provisions Act 1982 (NSW) is 18 months from the death of the deceased. • Does the mother have to tell Centrelink that she is in a same-sex relationship when applying for Parenting Payments (Single)? No. Currently the Social Security Act 1991 does not define lesbian and gay couples as "spouses" or recognise them as living as a couple. They are therefore assessed separately as individuals and their partner's income and assets are not taken into account when eligibility for benefits is being assessed. • Can the mother, co-parent and the child access health insurance at the reduced "family" rate? This depends on the particular health benefit fund. Most do offer the family rate to same sex couples. Those that refuse to do so can be pursued for discrimination. The exclusion of a gay couple from the "concessional" or "family" rate was tested in NSW under the Anti-Discrimination Act 1977. In the case of Hope and Brown v NIB Health Fund Limited (1995) it was found that the insurance provider had discriminated against a gay couple and their child by refusing them the concessional family rate for health insurance. • Are informal donor insemination arrangements legal? In NSW there is no specific law against self insemination. However, some doubts still remain as to whether such arrangements may breach the Human Tissue Act 1983 (NSW), which regulates the handling of human tissue. The Human Tissue Act in effect prevents sexually active gay men from donating sperm by requiring the donor to certify on a form that he has not had male-to-male sex for five years. This is because of concerns about the transmission of HIV. This requirement may therefore create problems for gay men who wish to donate sperm. The form is contained in the regulations to the Human Tissue Act, which can be amended. The regulations should therefore be checked for any amendments at the relevant time. While the Human Tissue Act may apply to private arrangements, this issue has not been tested in the courts. To date there have been no prosecutions and as such a prosecution seems unlikely. The penalty for signing a false or misleading statement regarding the donor's suitability is $5,500 and/or imprisonment for one year. • Can the donor charge a fee for supplying semen ? The Human Tissue Act prohibits "trade in human tissue" by anyone other than an authorised provider (such as a clinic). It is therefore illegal in NSW for the donor to charge for providing semen. The penalty for a donor who trades in semen in this manner is a maximum fine of $4,400 and/or 6 months imprisonment. However, it is not illegal for the recipient to cover the cost of medical procedures carried out by the donor to ensure that he is a suitable donor. • What are the rights and responsibilities of the donor and mother regarding screening for HIV or other infections ? The relevant medical procedures referred to above should include tests for various infections or diseases, as well as the donor having his sperm count and activity tested to ensure that he is fertile. The viruses or diseases for which the donor must be tested are set out in the regulations to the Human Tissues Act ("the regulations") and include HIV, Hepatitis B and C and Syphilis. While there is no absolute guarantee regarding the screening of "fresh" semen (as opposed to frozen/stored sperm provided by a clinic) for HIV, the following is the safest possible method to follow. The donor will need to have two HIV tests, three months apart and with no "risk activities between them - such as unprotected penetrative sex or sharing of injecting drug equipment. If both HIV tests are negative the donor's sperm will be as safe as possible. It is important for the donor to be tested twice because of the "window period" of HIV infection. This is the period when a person maybe infected with HIV but the virus cannot be detected by an HIV test. Antibodies to HIV can be detected after three months of infection. The ideal method of preventing transmission of HIV andd other STDs is the method used by clinics where semen is frozen and stored for six months while the donor is tested and retested to make sure they do not carry transmissible infections. While there is no guarantee that semen is completely safe, instances of HIV transmission due to informal donor insemination have been rare. The 'Contacts' section in this publication refers to services which provide comprehensive information (including written information) about appropriate and effective screening processes that should be followed when planning to self inseminate with donor sperm. It is also important to discuss a broad range of health issues with a potential donor so that informed decisions can be made before proceeding with the particular donor. For example, it is advisable to obtain the donor's medical history, including diabetes, allergic disorders, mental illness, and inherited health conditions, such as haemophilia. It will also be useful to know if there is any family history of repeated miscarriages or twins and any family history of breast or cervical cancer which may be relevant in the future if the child is a girl. The Human Tissue Act requires the person "obtaining or receiving" semen to first get a certificate from the donor attesting to his medical suitability. The certificate should be either in the form set out in the regulations or in a similar form. This should be discussed with a general practitioner when having the relevant tests. The regulations also require the person to keep the medical certificate for a minimum of 10 years. When donor insemination is carried out in a clinical setting it is clear that the service provider is the "obtainer" of the semen. Where insemination takes place outside a clinical setting it is unclear whether the donor or the mother (or both) are the "obtainers" of the semen. It would therefore be advisable for both the mother and donor to retain copies of the medical certificate. There are penalties of up to $220 for failing to comply with these requirements. The obtaining of this certificate will also protect the donor from the prospect of being sued if the mother contracts a disease for which the donor should have been tested. Under the Human Tissue Act there is a maximum penalty of $5,500 and/or 1 year imprisonment if a person provides or signs a certificate knowing that it contains false or misleading information. It is important to note that the purpose of the Human Tissue Act is to set standards for authorised providers of semen. People entering into private or informal arrangements take more risks (both health and legal) in doing so as they do not have the same recourse to legal redress as people who use a clinic if things go wrong. Contacts • AIDS Council of NSW (ACON) Women's Peer Support Project For information on insemination and HIV issues, pregnancy for positive women or women with HIV positive partners. 9 Commonwealth Street Darlinghurst NSW 2010 Ph: 9206 2000 • Anti Discrimination Board of NSW Level 4, 181 Lawson Street Redfern NSW 2016 Ph: 318 5400 • Centrelink Family Payment Line - 131 305 or call your local Centrelink office. •Community Legal Centres (CLC) Community Legal Centres provide free legal information, advice and referral. To find the CLC closest to you, contact the NSW Community Legal Centres' Secretariat. Ph: 9318 2355 • Department of Foreign Affairs and Trade -Australian Passport Information Service 12 Floor, 255 Pitt Street Sydney NSW 2000 Ph: 131 232 • Family Court of Australia 2nd Floor, 97-99 Goulburn Street Sydney NSW 2000 Ph: 9217 7111 • Family Planning NSW - Telephone Information Nurse Service For telephone advice and information on fertility, conception and pregnancy. 328-336 Liverpool Road Ashfield NSW 2131 Ph: 9716 6099 • Leichhardt Women's Community Health Centre For information about fertility charting, known donor insemination techniques, referrals to fertility clinics, sexual health screening, pregnancy advice and childbirth classes. 55 Thornley Street Leichhardt NSW 2040 Ph: 9560 3011 • Lesbian and Gay Legal Advice Service (LGLAS) LGLAS is a project of the Gay and Lesbian Rights Lobby. It is auspiced by and operates out of the Inner City Legal Service every Wednesday evening between 6 - 8 pm. By appointment only. 2nd Floor, 94 Oxford Street Darlinghurst NSW 2010 Ph: 9332 1966 • Registry of Births, Deaths and Marriages 191 Thomas St Haymarket NSW 2000 Ph: 9243 8555 • Royal Prince Alfred Hospital - Donor Insemination Clinic The clinic is held on Thursday afternoons with a doctor and counsellor and covers known donor arrangements and donor insemination using a donor from the hospital sperm bank. Appointments can be made to see the counsellor at any time. It is not necessary to be on the programme to see the counsellor. Missenden Road Camperdown NSW 2050 Ph: 9515 7101 for clinic appointment 9515 8119 for appointment with the counsellor • Welfare Rights Centre (WRC) The WRC is a community legal centre which specialises in social security law. 5th Floor, 414 Elizabeth Street Surry Hills NSW 2010 Ph: 9211 5300 Reading • Borthwick, Prue and Bloch, Barbara. Mothers and Others. Sydney, 1996 • Donor Conception Support Group. Let the Offspring Speak: Discussions on Donor Conception. PO Box 53, Georges Hall NSW 2198. Ph: 9624 5110 • Martin, April. The Lesbian and Gay Parenting Handbook. Harper Perennial Books. USA, 1993 • National Centre for Lesbian Rights. Lesbians Choosing Motherhood. San Francisco. Fax: 1-415 392 8442 • Pies, Cherie . Considering Parenthood: A Workbook for Lesbians. Spinster Ink. USA • Saffron, Lisa. Getting pregnant Our Own Way: A Guide to Alternative Insemination. UK, 1987 • The Boston Women's Health Book Collective. Our Bodies, Our Selves For the New Century. Simon and Schuster. USA, 1998 • The Law Handbook: Your Practical Guide to the Law in New South Wales. 7th edition. (Chapter 25.5 - 'The relationships of lesbians and gay men'). Redfern Legal Centre Publishing. Sydney, 1999 • Wakeling, Louise and Bradstock, Margaret (Editors) Beyond Blood: Writings on the Gay and Lesbian Family. Sydney, 1995 Internet Sites • Family Pride Coalition - http://www.familypride.org • Gay Dads - http://userwww.service.emory.edu/~librpj/gaydads.html (NO LONGER AVAILABLE) • Human Rights Campaign - Lesbian Health Links - http://www.hrc.org/issues/lesbianh/index.html • Lesbian Moms Webpage - http://www.lesbian.org/mums/index.htm (NO LONGER AVAILABLE) • Women Alive - http://www.thebody.com/wa/wapage.html Acknowledgments This guide is the outcome of a project undertaken by Lynda Watkins, a final year law student at Wollongong University, as part of her student placement with Inner City Legal Centre (ICLC). We thank Lynda for her exhaustive research. ICLC also wishes to acknowledge the contribution of and thank those people who have given their time, expertise and input to the development of this publication: Vicky Harding, Brigid Inder, Kevin Lapthorn, Jenni Millbank, Kathy Sant, Meena Sripathy Note to readers While every effort has been made to ensure that the information in this guide is as up to date and accurate as possible, it is not a substitute for legal advice. The law is complex and readers are advised to seek specific legal advice in relation to their particular situation. Cover and Illustrations: Chris Bray-Cotton Production and Design: Australia Region Media Printed September 1999 This guide was written by Lauren Finestone and Lynda Watkins. It was produced by the Inner City Legal Centre, with a grant from the Law Foundation of NSW. Any opinions expressed in this publication are the authors' and do not necessarily reflect the views of the Law Foundation's Board of Governors. For information on where copies of this guide are available contact ICLC. Back to top Get Involved today! Print out a membership form and mail it in. You can contact us one of the following ways: Phone: (02) 9360 6650 - Fax: (02) 9331 7963 - PO Box 9, Darlinghurst, NSW, 1300 - Email: info@glrl.org.au **Contact Jason for site problems** © Gay and Lesbian Rights Lobby Inc. (Incorporated in New South Wales) All rights reserved.
Get Involved today! Print out a membership form and mail it in. You can contact us one of the following ways: Phone: (02) 9360 6650 - Fax: (02) 9331 7963 - PO Box 9, Darlinghurst, NSW, 1300 - Email: info@glrl.org.au **Contact Jason for site problems** © Gay and Lesbian Rights Lobby Inc. (Incorporated in New South Wales) All rights reserved.
TALKING TURKEY: A legal guide to self insemination
TALKING TURKEY: A legal guide to self insemination
TALKING TURKEY: A legal guide to self insemination
Back to Parenting & Families click on one of the below to get there faster... Contents • Introduction • Definitions • Frequently asked questions: • Is the donor regarded as the legal father? • What happens if the donor is named on the birth certificate? • What happens if the donor is not named on the birth certificate? • Is the donor liable for child support or maintenance? • Can the mother prevent the donor from having contact with the child? • Is the issue of homosexuality taken into account by the courts? • Does the donor have any rights regarding the child? • Does the co-parent have any rights regarding the child? • What is the legal status of written agreements? • Can a co-parent adopt the child? • Can the mother state in her will who the child should live with if she dies? • What if the mother's will does not say who the child should live with? • What are the inheritance rights of the child? • Will Centrelink consider the co-parent's income for Parenting Payments? • Can health insurance be obtained at the reduced "family rate"? • Are informal donor insemination arrangements legal? • Can the donor charge a fee for supplying semen? • What is the law regarding screening for HIV or other health risks? • Contacts • Reading • Internet Sites • Acknowledgements
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Contents
• Is the donor regarded as the legal father?
• What happens if the donor is named on the birth certificate?
• What happens if the donor is not named on the birth certificate?
• Is the donor liable for child support or maintenance?
• Can the mother prevent the donor from having contact with the child?
• Is the issue of homosexuality taken into account by the courts?
• Does the donor have any rights regarding the child?
• Does the co-parent have any rights regarding the child?
• What is the legal status of written agreements?
• Can a co-parent adopt the child?
• Can the mother state in her will who the child should live with if she dies?
• What if the mother's will does not say who the child should live with?
• What are the inheritance rights of the child?
• Will Centrelink consider the co-parent's income for Parenting Payments?
• Can health insurance be obtained at the reduced "family rate"?
• Are informal donor insemination arrangements legal?
• Can the donor charge a fee for supplying semen?
• What is the law regarding screening for HIV or other health risks?
• Contacts
• Reading
While artificial insemination is available to women through fertility clinics in NSW, not all fertility services provide access to lesbians or to 'single' women. It is likely that this is unlawful discrimination under the Anti Discrimination Act 1977 (NSW). However no cases have been run in NSW on this point yet. The Inner City Legal Centre is regularly approached for legal advice by lesbians, their partners and prospective donors who are planning to have children through informal, or private, donor insemination arrangements, rather than through fertility clinics. This publication is an attempt to answer some of the most commonly asked questions about the legal rights and responsibilities of the parties involved in such arrangements in NSW. The information in this publication should be used as a guide only and should not be relied upon as legal advice. This is because many of the issues surrounding arrangements of this kind have not yet been fully tested by the law. The law is evolving as it is called upon to deal with situations which were never contemplated by the law makers. It is therefore difficult to give a definitive answer to some of the questions raised, and often more questions will arise than can be addressed in this publication. A number of penalties are referred to in this publication. The private nature of these arrangements means that it is difficult, if not impossible, for them to be enforced. To date there have been no known prosecutions for any of these offences. This guide is intended for people entering into donor insemination arrangements, and conceiving, in NSW. It does not deal with the legal position in other States. However, because much of the relevant legislation is Commonwealth legislation - such as the Family Law Act 1975, the Child Support (Assessment) Act 1989 and the Social Security Act 1991- some of the information will be applicable in all States. People in other States should seek the advice of a solicitor. It is worth stating that while this publication deals with informal arrangements only, the information concerning co-parents is the same regardless of whether the mother self-inseminates or is inseminated through a clinic. This guide reflects the law as it presently stands. However the law may change in the future. If the current law were to change in the future, it is unlikely the new law would be retrospective (ie: make illegal something which was legal at the time it was done). Finally, the "definition section" which follows explains some of the legal and other terms referred to in this publication. At the risk of stating the obvious, "donor insemination" refers to the process of artificial (ie: self) insemination. It does not include the situation where the parties have sexual intercourse but make a conscious decision that the man is to be regarded purely as a donor. The information in this publication only applies to artificial donor insemination arrangements. Definitions for the purpose of this publication Child: means a child born as a result of a donor insemination arrangement. Contact: this is a legal term which has replaced the old term "access". It refers to the time spent between the child and person(s) other than the people the child lives with, and the extent of that contact. Co-parent: the lesbian partner of the mother who shares the responsibilities of caring for the child. Donor: because the legal position is that a sperm donor is not the legal father of the child (see below), to avoid confusion "donor" is used in the publication. However it is recognised that there will be a range of relationships and levels of involvement between sperm donors and children born as a result of a donor insemination arrangement, and that some donors will be regarded by the parties as the father of the child. Parenting orders: are orders by the court which may deal with one or more of the following issues: • who the child will live with, • who else will spend time with the child and to what degree, • other aspects of parental responsibility known as "specific issues" orders (see below). Parenting orders can be made by consent between the parties, or imposed by the Family Court in situations where the parties can't agree. Residence: the legal term which has replaced the old term "custody" and refers to who the child lives with. Specific issues orders: orders made by the court about anything other than residence, contact or maintenance. They are orders which give or take away the responsibility for the long term or day to day "care, welfare and development" of the child, such as education, medical treatment, clothing and so on. Such orders can be made in the favour of one person or jointly with another person, or people. Frequently Asked Questions • Is the donor regarded as the legal father? In NSW the donor does not have automatic parental rights and responsibilities regarding the child. This is because the Status of Children Act 1996 NSW states that the donor is presumed not to be the father of the child. This is the case even if the donor is named as the father on the birth certificate or any other document. It is also the case whether or not the donor is known to the mother. If the mother is married to or in a de facto relationship with another man, that man is presumed to be the father unless he clearly indicates that he does not consent to the insemination. If the mother is not married to or in a de-facto relationship with the donor or any other man the child is regarded by the law as not having a father. • What happens if the donor is named as the father on the birth certificate ? Some people may want to record the name of the donor on the birth certificate so that the child can later identify him. However, it should be noted that certain difficulties may be experienced by the mother and the child in terms of their day to day lives as a result of putting the donor's name on the birth certificate. There are, of course, other ways of ensuring that the child knows who he is. Accessing family payments through Centrelink and applying for a child's passport are discussed below as examples of the effects of naming the donor as the father. Parenting payments and child support In the case of B v J (1996) the Family Court held that for the purposes of child support under the Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth), a sperm donor was not assessable as a "parent" even though he was registered as the father on the birth certificate, and therefore he was not liable to pay child support. When a woman applies to Centrelink for more than the minimum standard rate of Family Allowance she would normally be required to demonstrate that she has taken reasonable steps to claim child support from the father named on the birth certificate. Where the donor's name is on the birth certificate, the mother would have to prove to Centrelink that the child was conceived through donor insemination and that therefore she cannot legally pursue him for child support. Involvement by a Centrelink social worker may be required if the donor insemination was not done through a clinic. While the law is clear that the donor is not the legal father and not liable for child support, at present these laws, and Centrelink policy and practice, is/are being applied in a highly discretionary manner by Centrelink officers. If Centrelink decides not to accept the evidence provided of a donor insemination arrangement and decides that the mother should take reasonable steps to pursue child support from the donor, she can appeal to an authorised review officer, and then to the Social Security Appeals Tribunal, if necessary. If the mother did attempt to claim child support from the donor, he could avoid liability by demonstrating that the child was conceived through a donor insemination arrangement and therefore he was not liable to pay child support. (B v J) Having to explain the above to Centrelink may mean admitting to an offence under the Crimes Act 1900 (NSW) (see below), although the prospects of being prosecuted in this context are slim. It is also important to note that it is an offence under the Social Security Act to make a false or misleading statement in connection with applying for benefits. While the case of B v J made it clear that the donor is not liable for child support under the Child Support Scheme, in some circumstances the Family Court can make orders for child maintenance outside the Child Support Scheme. The position of the donor is still unclear and the Family Court is yet to make a decision about whether a donor would be liable to pay child maintenance under the Family Law Act, as opposed to the Child Support (Assessment) Act. Legal opinion remains divided on this issue. Passports By putting the donor on the birth certificate it would appear to the Department of Foreign Affairs and Trade (DFAT) that his consent would be required before a passport could be issued. The people who are named as the parents on the child's birth certificate must consent to the issuing of a passport for a child under the age of 18, unless: • the child is married or has previously been married, • the Family Court has given permission for one parent to remove the child from Australia without the other parent's consent, or • where a court order has been made to alter parental responsibility, it is those people named in the order who must consent, or • under the Passports Act 1938 (Cth) a passport can be issued without both parents' consent in "special circumstances". It may be that "special circumstances" might apply where the mother explains that the person registered as the father is a donor and is therefore not legally recognised under NSW law as the father (Status of Children Act). Some evidence of this fact will be needed to satisfy DFAT. It is unclear what documentation would be accepted, and it may be that a Family Court order would be required. A decision of DFAT not to issue a passport is an administrative decision and can be appealed. The first appeal is to the Minister and must be done in writing and within 28 days of becoming aware of the decision. The Minister's decision can be appealed to the Administrative Appeals Tribunal. That appeal must also be done within 28 days from the date the Minister's decision is received. Possible breach of the Crimes Act There is a view that if the person who registers the birth knows that the donor is not the legal father, the inclusion of his name on the birth certificate may breach the Crimes Act 1900 (NSW) by "wilfully" making false statements in respect of a birth. However there has never been a case involving this issue and the view is not universally held. The penalty for making a false statement is up to 6 months imprisonment or a fine of up to $110. It is possible to amend details on a birth certificate by applying to the NSW Registry of Births, Deaths and Marriages. • What are the implications of not putting the donor's name on the birth certificate? Since the donor is deemed not to be the father there is no obligation on the part of the mother to name the father. Centrelink may require the mother to name the father in order for it to be satisfied that she has taken reasonable steps to obtain child support. Should this occur the mother will have to explain that the conception was as a result of a private insemination arrangement and that there is no legal father (see the discussion above under ‘Parenting payments and child support’). • Is the donor liable for child support or child maintenance ? No. See above under ‘Parenting payments and child support’. However, if the donor has made a promise to the mother to financially support the child and then reneges on that promise, he may be forced by the court to fulfil that promise. (See the discussion below on W v G under 'Does the co-parent have any rights and responsibilities regarding the child' for how this might happen). • Can the mother prevent the donor from forming a relationship with the child, or exclude the donor from having residence of or contact with the child? Under the Family Law Act 1975 any person who has a concern for the "care, welfare or development of the child" - and this could include the donor - can apply to the court for parenting orders. The mother cannot therefore prevent the donor from applying to the court for such orders. Parenting orders can be made either by consent between the parties, or where agreement cannot be reached, by the court on the application of an interested party. In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". In determining what 'the best interests of the child' are, the court must consider a number of factors, including, but not limited to: • the expressed wishes of the child, considering the child's age, maturity and any other factor that may have influenced the child; • the child's relationship with each parent and with any other person; • the current arrangements for the child and the effect a change would have on the child; • the effect a separation from either parent, other children or any other person may have on the child; • the capacity of each parent (or person) to provide for the child's needs, including emotional and intellectual; • the child's maturity, sex and background, including contact with culture or traditions of indigenous people; • the need to protect the child from physical or psychological harm; • each parent's (or person's) attitude to the child and to the responsibilities of parenthood; • any family violence involving a child or a member of the child's family; • the court's preference to make an order that is least likely to result in further proceedings regarding the child; • any other fact or circumstance the court considers relevant. The court will therefore consider the nature of the donor's relationship and level of involvement with the child. For example, if the donor has been very closely involved in the child's development and has had regular contact with the child for several years, it is unlikely that he would be denied ongoing contact with the child. • Will the issue of homosexuality be considered by the court when making orders regarding a child ? In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". The sexuality of the parties may therefore be a factor that the Family Court will consider when making its decision about what is in the best interests of the child. While in the past the Court has refused to grant parenting orders to gay men or lesbians because of their sexuality, there have been recent cases where residence has been awarded to lesbian mothers and gay fathers. Ultimately it will depend on the individual judge hearing the case, and all the circumstances of the particular case. • Does the donor have any 'residence,' 'contact' or 'specific issues' rights regarding the child? The fundamental focus of the Family Law Act is on the child's, rather than the parent(s) rights. Therefore no person has automatic rights regarding the child. Because the donor is not the legal father (Status of Children Act) the court will not automatically make orders for the child to have contact with him. As discussed above however, he can apply to the Family Court for parenting orders as a person concerned with the "care, welfare or development of the child". • Does the co-parent have any rights or responsibilities regarding the child? There are no automatic legal rights or responsibilities that apply to the relationship between the co-parent and the child. However, the case of W v G (1996) has shown that a co-parent may be ordered by the court to accept some responsibility for financially supporting the child (child maintenance). In that case the co-parent was ordered to fulfil a promise she had made to the mother to financially support the children, because she had encouraged the mother to believe that she could rely and act on that promise of support in becoming pregnant. The Property (Relationships) Act 1984 now enables same sex de facto partners (ie: people who live together as a couple) to go to the District Court or NSW Supreme Court for orders about property division on the breakdown of a relationship. This can include claims for child maintenance as part of a property division where both parties have taken parental responsibility for the welfare of a child. This is a cheaper and easier way of pursuing child maintenance. A co-parent can also gain legal recognition of her relationship with the child through the courts. She can apply to the Family Court for parenting orders regarding the child as a person "concerned with the care, welfare or development of the child". This can be done in two situations: • Where the mother and co-parent both agree that the co-parent's relationship with the child should be legally recognised The Family Law Act enables joint parenting orders to be made by consent between the parties in favour of both the mother and the lesbian co-parent. This is the most effective way for the mother and co-parent to legally share the rights and responsibilities regarding the child. Independent legal advice should be obtained when making parenting orders by consent. • Where there is a dispute between the mother and co-parent regarding the child In the event of a dispute between the mother and co-parent the Family Court will resolve the dispute and make orders based on the "best interests of the child". The court will take into account the factors discussed above. The co-parent may be in a stronger position if a joint parenting order has already been made. Both parties will be required to undergo counselling with a Family Court approved counsellor prior to a final determination of the dispute. • What is the legal status of any written agreement or contract between the donor and mother, or the mother and the co-parent? Would an agreement of this kind be legally enforceable ? It is not certain whether written agreements regarding the parties' rights and responsibilities in relation to the child are legally enforceable as this issue has not been tested in Australia. Some agreements regarding rights and responsibilities between donors and biological mothers have been enforced in the United States of America. However it would appear that at this time Australian courts are not prepared to follow the trend emerging in America. While agreements between the donor and mother and mother and co-parent may not be legally enforceable, they may be useful as evidence of the parties' intentions in any future court action. The process of making such an agreement can in itself be a very useful one, as a means of assisting the parties to think about and articulate their needs and/or expectations of the arrangement. This can also help prevent disputes arising in the future. It is important to note that agreements of this kind are '"tailor-made" to suit the particular circumstances of the parties involved. One person's agreement should therefore not be used as a 'pro forma' document for someone else. Specific legal advice should be sought on this point. • Can a co-parent formally adopt her partner's child where that child was conceived through an informal donor insemination arrangement ? Under the Adoption of Children Act 1965 (NSW) a child becomes the child of the adoptive parent(s) and the legal relationship with the birth parent is severed permanently. At present gay men and lesbians are not legally able to adopt as a couple, but may apply to adopt a child as a single person. If a co-parent were to adopt the child of her partner it would mean that the mother would no longer be considered the legal parent of the child. For this reason adoption is not usually considered to be a feasible option. It should be noted that privately arranged adoptions are illegal. However, much of what the mother and co-parent may be wishing to achieve when they think about adoption - the legal sharing and recognition of rights and responsibilities regarding the child - may be achieved by obtaining parenting orders from the Family Court by consent. (See above under 'Does the lesbian co-parent have any rights or responsibilities regarding the child?'). Specific legal advice should be sought about this. • Can the mother state in her will that the co-parent is to have residence of the child if she dies? A legal parent can nominate someone in their will to be the guardian of the child(ren) in the event of the parent's death (a testamentary guardian). Guardianship of this nature becomes particularly important where there are no existing orders from the Family Court setting out who will be responsible for the care of the child. The Family Court no longer makes orders appointing people guardians of children, but may make specific issues orders as well as parenting orders. For example if the mother dies the Family Court may make orders granting residence to the co-parent and orders that she alone or with some other interested person share responsibility for the long term care, welfare and development of the child. The mother's nomination of a testamentary guardian can be challenged in court by other interested people such as grandparents, or in some cases the donor. Although the mother's nomination may not be followed by the court, it is still recommended that provision be made in a will so that the court can assess the deceased's wishes. Any decision of the court will ultimately depend on the court's assessment of the child's best interests. • What if the will doesn't nominate a testamentary guardian? Any person with an interest in the "care, welfare or development of the child" - including a co-parent and the donor - can apply to the Family Court for parenting orders on the death of the mother. Any existing contact, residence or specific issues orders would be taken into account by the court, and the court would make such orders as it considers are in 'the best interests of the child'. It should be noted that regardless of whether or not there is a will nominating a testamentary guardian, if the co-parent has had a significant involvement with the child and its development for several years, a court would be unlikely to discontinue this, as to do so would probably not be in the best interest of the child. • What are the inheritance rights of a child born as a result of an informal donor insemination arrangement. Any person is free to dispose of her or his property (estate) as s/he sees fit. Therefore, the mother, co-parent, donor or the donor's partner can make provisions in their wills for the child. If the mother dies intestate (without a will) the rules of intestacy will apply. Under recent amendments to the Wills, Probate and Administration Act 1898 same sex de facto partners (ie: people living together as a couple) can now automatically inherit all or part of the estate, depending on how much is in the estate. Depending on its size, the (biological) children of the deceased may also inherit some of the estate. A child born as a result of artificial insemination is not entitled to a share of the donor's estate because the donor is not legally the father of the child (Status of Children Act ). A dispute may arise in cases where the donor's name is on the birth certificate and the child makes a claim against the estate, whether the donor had died with or without a will. Unless there is proof of an artificial insemination arrangement the court is likely to presume that the child is the legal child of the father. Such a dispute is more likely to arise when the child is an adult and the people who may have knowledge of the donor insemination arrangement may be deceased. Any will can be contested under the Family Provisions Act 1982 (NSW) if it is considered that the will maker has failed to make proper provisions for relatives or dependants. Claims for a share of the estate can be made under the Act even where there is no will and proper provision has not been made. Under the Family Provisions Act a child whose long-term welfare has been the responsibility of both the mother and the co-parent can seek part of the co-parent's estate in the event of her death. A child may be also able to claim against the estates of the donor or donor's partner under the "other dependant's category" of the Family Provisions Act where provisions have not been made for the child. The child would need to establish that s/he was a member of the deceased's household and was wholly or partly dependent on the deceased at some time. This type of situation could arise where the donor and his partner agree to play a regular part in the life of a child conceived through a donor insemination arrangement. The usual limitation period to make a claim under the Family Provisions Act 1982 (NSW) is 18 months from the death of the deceased. • Does the mother have to tell Centrelink that she is in a same-sex relationship when applying for Parenting Payments (Single)? No. Currently the Social Security Act 1991 does not define lesbian and gay couples as "spouses" or recognise them as living as a couple. They are therefore assessed separately as individuals and their partner's income and assets are not taken into account when eligibility for benefits is being assessed. • Can the mother, co-parent and the child access health insurance at the reduced "family" rate? This depends on the particular health benefit fund. Most do offer the family rate to same sex couples. Those that refuse to do so can be pursued for discrimination. The exclusion of a gay couple from the "concessional" or "family" rate was tested in NSW under the Anti-Discrimination Act 1977. In the case of Hope and Brown v NIB Health Fund Limited (1995) it was found that the insurance provider had discriminated against a gay couple and their child by refusing them the concessional family rate for health insurance. • Are informal donor insemination arrangements legal? In NSW there is no specific law against self insemination. However, some doubts still remain as to whether such arrangements may breach the Human Tissue Act 1983 (NSW), which regulates the handling of human tissue. The Human Tissue Act in effect prevents sexually active gay men from donating sperm by requiring the donor to certify on a form that he has not had male-to-male sex for five years. This is because of concerns about the transmission of HIV. This requirement may therefore create problems for gay men who wish to donate sperm. The form is contained in the regulations to the Human Tissue Act, which can be amended. The regulations should therefore be checked for any amendments at the relevant time. While the Human Tissue Act may apply to private arrangements, this issue has not been tested in the courts. To date there have been no prosecutions and as such a prosecution seems unlikely. The penalty for signing a false or misleading statement regarding the donor's suitability is $5,500 and/or imprisonment for one year. • Can the donor charge a fee for supplying semen ? The Human Tissue Act prohibits "trade in human tissue" by anyone other than an authorised provider (such as a clinic). It is therefore illegal in NSW for the donor to charge for providing semen. The penalty for a donor who trades in semen in this manner is a maximum fine of $4,400 and/or 6 months imprisonment. However, it is not illegal for the recipient to cover the cost of medical procedures carried out by the donor to ensure that he is a suitable donor. • What are the rights and responsibilities of the donor and mother regarding screening for HIV or other infections ? The relevant medical procedures referred to above should include tests for various infections or diseases, as well as the donor having his sperm count and activity tested to ensure that he is fertile. The viruses or diseases for which the donor must be tested are set out in the regulations to the Human Tissues Act ("the regulations") and include HIV, Hepatitis B and C and Syphilis. While there is no absolute guarantee regarding the screening of "fresh" semen (as opposed to frozen/stored sperm provided by a clinic) for HIV, the following is the safest possible method to follow. The donor will need to have two HIV tests, three months apart and with no "risk activities between them - such as unprotected penetrative sex or sharing of injecting drug equipment. If both HIV tests are negative the donor's sperm will be as safe as possible. It is important for the donor to be tested twice because of the "window period" of HIV infection. This is the period when a person maybe infected with HIV but the virus cannot be detected by an HIV test. Antibodies to HIV can be detected after three months of infection. The ideal method of preventing transmission of HIV andd other STDs is the method used by clinics where semen is frozen and stored for six months while the donor is tested and retested to make sure they do not carry transmissible infections. While there is no guarantee that semen is completely safe, instances of HIV transmission due to informal donor insemination have been rare. The 'Contacts' section in this publication refers to services which provide comprehensive information (including written information) about appropriate and effective screening processes that should be followed when planning to self inseminate with donor sperm. It is also important to discuss a broad range of health issues with a potential donor so that informed decisions can be made before proceeding with the particular donor. For example, it is advisable to obtain the donor's medical history, including diabetes, allergic disorders, mental illness, and inherited health conditions, such as haemophilia. It will also be useful to know if there is any family history of repeated miscarriages or twins and any family history of breast or cervical cancer which may be relevant in the future if the child is a girl. The Human Tissue Act requires the person "obtaining or receiving" semen to first get a certificate from the donor attesting to his medical suitability. The certificate should be either in the form set out in the regulations or in a similar form. This should be discussed with a general practitioner when having the relevant tests. The regulations also require the person to keep the medical certificate for a minimum of 10 years. When donor insemination is carried out in a clinical setting it is clear that the service provider is the "obtainer" of the semen. Where insemination takes place outside a clinical setting it is unclear whether the donor or the mother (or both) are the "obtainers" of the semen. It would therefore be advisable for both the mother and donor to retain copies of the medical certificate. There are penalties of up to $220 for failing to comply with these requirements. The obtaining of this certificate will also protect the donor from the prospect of being sued if the mother contracts a disease for which the donor should have been tested. Under the Human Tissue Act there is a maximum penalty of $5,500 and/or 1 year imprisonment if a person provides or signs a certificate knowing that it contains false or misleading information. It is important to note that the purpose of the Human Tissue Act is to set standards for authorised providers of semen. People entering into private or informal arrangements take more risks (both health and legal) in doing so as they do not have the same recourse to legal redress as people who use a clinic if things go wrong. Contacts • AIDS Council of NSW (ACON) Women's Peer Support Project For information on insemination and HIV issues, pregnancy for positive women or women with HIV positive partners. 9 Commonwealth Street Darlinghurst NSW 2010 Ph: 9206 2000 • Anti Discrimination Board of NSW Level 4, 181 Lawson Street Redfern NSW 2016 Ph: 318 5400 • Centrelink Family Payment Line - 131 305 or call your local Centrelink office. •Community Legal Centres (CLC) Community Legal Centres provide free legal information, advice and referral. To find the CLC closest to you, contact the NSW Community Legal Centres' Secretariat. Ph: 9318 2355 • Department of Foreign Affairs and Trade -Australian Passport Information Service 12 Floor, 255 Pitt Street Sydney NSW 2000 Ph: 131 232 • Family Court of Australia 2nd Floor, 97-99 Goulburn Street Sydney NSW 2000 Ph: 9217 7111 • Family Planning NSW - Telephone Information Nurse Service For telephone advice and information on fertility, conception and pregnancy. 328-336 Liverpool Road Ashfield NSW 2131 Ph: 9716 6099 • Leichhardt Women's Community Health Centre For information about fertility charting, known donor insemination techniques, referrals to fertility clinics, sexual health screening, pregnancy advice and childbirth classes. 55 Thornley Street Leichhardt NSW 2040 Ph: 9560 3011 • Lesbian and Gay Legal Advice Service (LGLAS) LGLAS is a project of the Gay and Lesbian Rights Lobby. It is auspiced by and operates out of the Inner City Legal Service every Wednesday evening between 6 - 8 pm. By appointment only. 2nd Floor, 94 Oxford Street Darlinghurst NSW 2010 Ph: 9332 1966 • Registry of Births, Deaths and Marriages 191 Thomas St Haymarket NSW 2000 Ph: 9243 8555 • Royal Prince Alfred Hospital - Donor Insemination Clinic The clinic is held on Thursday afternoons with a doctor and counsellor and covers known donor arrangements and donor insemination using a donor from the hospital sperm bank. Appointments can be made to see the counsellor at any time. It is not necessary to be on the programme to see the counsellor. Missenden Road Camperdown NSW 2050 Ph: 9515 7101 for clinic appointment 9515 8119 for appointment with the counsellor • Welfare Rights Centre (WRC) The WRC is a community legal centre which specialises in social security law. 5th Floor, 414 Elizabeth Street Surry Hills NSW 2010 Ph: 9211 5300 Reading • Borthwick, Prue and Bloch, Barbara. Mothers and Others. Sydney, 1996 • Donor Conception Support Group. Let the Offspring Speak: Discussions on Donor Conception. PO Box 53, Georges Hall NSW 2198. Ph: 9624 5110 • Martin, April. The Lesbian and Gay Parenting Handbook. Harper Perennial Books. USA, 1993 • National Centre for Lesbian Rights. Lesbians Choosing Motherhood. San Francisco. Fax: 1-415 392 8442 • Pies, Cherie . Considering Parenthood: A Workbook for Lesbians. Spinster Ink. USA • Saffron, Lisa. Getting pregnant Our Own Way: A Guide to Alternative Insemination. UK, 1987 • The Boston Women's Health Book Collective. Our Bodies, Our Selves For the New Century. Simon and Schuster. USA, 1998 • The Law Handbook: Your Practical Guide to the Law in New South Wales. 7th edition. (Chapter 25.5 - 'The relationships of lesbians and gay men'). Redfern Legal Centre Publishing. Sydney, 1999 • Wakeling, Louise and Bradstock, Margaret (Editors) Beyond Blood: Writings on the Gay and Lesbian Family. Sydney, 1995 Internet Sites • Family Pride Coalition - http://www.familypride.org • Gay Dads - http://userwww.service.emory.edu/~librpj/gaydads.html (NO LONGER AVAILABLE) • Human Rights Campaign - Lesbian Health Links - http://www.hrc.org/issues/lesbianh/index.html • Lesbian Moms Webpage - http://www.lesbian.org/mums/index.htm (NO LONGER AVAILABLE) • Women Alive - http://www.thebody.com/wa/wapage.html Acknowledgments This guide is the outcome of a project undertaken by Lynda Watkins, a final year law student at Wollongong University, as part of her student placement with Inner City Legal Centre (ICLC). We thank Lynda for her exhaustive research. ICLC also wishes to acknowledge the contribution of and thank those people who have given their time, expertise and input to the development of this publication: Vicky Harding, Brigid Inder, Kevin Lapthorn, Jenni Millbank, Kathy Sant, Meena Sripathy Note to readers While every effort has been made to ensure that the information in this guide is as up to date and accurate as possible, it is not a substitute for legal advice. The law is complex and readers are advised to seek specific legal advice in relation to their particular situation. Cover and Illustrations: Chris Bray-Cotton Production and Design: Australia Region Media Printed September 1999 This guide was written by Lauren Finestone and Lynda Watkins. It was produced by the Inner City Legal Centre, with a grant from the Law Foundation of NSW. Any opinions expressed in this publication are the authors' and do not necessarily reflect the views of the Law Foundation's Board of Governors. For information on where copies of this guide are available contact ICLC. Back to top Get Involved today! Print out a membership form and mail it in. You can contact us one of the following ways: Phone: (02) 9360 6650 - Fax: (02) 9331 7963 - PO Box 9, Darlinghurst, NSW, 1300 - Email: info@glrl.org.au **Contact Jason for site problems** © Gay and Lesbian Rights Lobby Inc. (Incorporated in New South Wales) All rights reserved.
While artificial insemination is available to women through fertility clinics in NSW, not all fertility services provide access to lesbians or to 'single' women. It is likely that this is unlawful discrimination under the Anti Discrimination Act 1977 (NSW). However no cases have been run in NSW on this point yet.
The Inner City Legal Centre is regularly approached for legal advice by lesbians, their partners and prospective donors who are planning to have children through informal, or private, donor insemination arrangements, rather than through fertility clinics.
This publication is an attempt to answer some of the most commonly asked questions about the legal rights and responsibilities of the parties involved in such arrangements in NSW. The information in this publication should be used as a guide only and should not be relied upon as legal advice. This is because many of the issues surrounding arrangements of this kind have not yet been fully tested by the law. The law is evolving as it is called upon to deal with situations which were never contemplated by the law makers. It is therefore difficult to give a definitive answer to some of the questions raised, and often more questions will arise than can be addressed in this publication.
A number of penalties are referred to in this publication. The private nature of these arrangements means that it is difficult, if not impossible, for them to be enforced. To date there have been no known prosecutions for any of these offences.
This guide is intended for people entering into donor insemination arrangements, and conceiving, in NSW. It does not deal with the legal position in other States. However, because much of the relevant legislation is Commonwealth legislation - such as the Family Law Act 1975, the Child Support (Assessment) Act 1989 and the Social Security Act 1991- some of the information will be applicable in all States. People in other States should seek the advice of a solicitor.
It is worth stating that while this publication deals with informal arrangements only, the information concerning co-parents is the same regardless of whether the mother self-inseminates or is inseminated through a clinic.
This guide reflects the law as it presently stands. However the law may change in the future. If the current law were to change in the future, it is unlikely the new law would be retrospective (ie: make illegal something which was legal at the time it was done).
Finally, the "definition section" which follows explains some of the legal and other terms referred to in this publication. At the risk of stating the obvious, "donor insemination" refers to the process of artificial (ie: self) insemination. It does not include the situation where the parties have sexual intercourse but make a conscious decision that the man is to be regarded purely as a donor. The information in this publication only applies to artificial donor insemination arrangements.
Definitions for the purpose of this publication
Child: means a child born as a result of a donor insemination arrangement.
Contact: this is a legal term which has replaced the old term "access". It refers to the time spent between the child and person(s) other than the people the child lives with, and the extent of that contact.
Co-parent: the lesbian partner of the mother who shares the responsibilities of caring for the child.
Donor: because the legal position is that a sperm donor is not the legal father of the child (see below), to avoid confusion "donor" is used in the publication. However it is recognised that there will be a range of relationships and levels of involvement between sperm donors and children born as a result of a donor insemination arrangement, and that some donors will be regarded by the parties as the father of the child.
Parenting orders: are orders by the court which may deal with one or more of the following issues:
• who the child will live with,
• who else will spend time with the child and to what degree,
• other aspects of parental responsibility known as "specific issues" orders (see below).
Parenting orders can be made by consent between the parties, or imposed by the Family Court in situations where the parties can't agree.
Residence: the legal term which has replaced the old term "custody" and refers to who the child lives with.
Specific issues orders: orders made by the court about anything other than residence, contact or maintenance. They are orders which give or take away the responsibility for the long term or day to day "care, welfare and development" of the child, such as education, medical treatment, clothing and so on. Such orders can be made in the favour of one person or jointly with another person, or people.
• Is the donor regarded as the legal father?
In NSW the donor does not have automatic parental rights and responsibilities regarding the child. This is because the Status of Children Act 1996 NSW states that the donor is presumed not to be the father of the child. This is the case even if the donor is named as the father on the birth certificate or any other document. It is also the case whether or not the donor is known to the mother.
If the mother is married to or in a de facto relationship with another man, that man is presumed to be the father unless he clearly indicates that he does not consent to the insemination. If the mother is not married to or in a de-facto relationship with the donor or any other man the child is regarded by the law as not having a father.
• What happens if the donor is named as the father on the birth certificate ?
Some people may want to record the name of the donor on the birth certificate so that the child can later identify him. However, it should be noted that certain difficulties may be experienced by the mother and the child in terms of their day to day lives as a result of putting the donor's name on the birth certificate. There are, of course, other ways of ensuring that the child knows who he is.
Accessing family payments through Centrelink and applying for a child's passport are discussed below as examples of the effects of naming the donor as the father.
Parenting payments and child support
In the case of B v J (1996) the Family Court held that for the purposes of child support under the Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth), a sperm donor was not assessable as a "parent" even though he was registered as the father on the birth certificate, and therefore he was not liable to pay child support.
When a woman applies to Centrelink for more than the minimum standard rate of Family Allowance she would normally be required to demonstrate that she has taken reasonable steps to claim child support from the father named on the birth certificate. Where the donor's name is on the birth certificate, the mother would have to prove to Centrelink that the child was conceived through donor insemination and that therefore she cannot legally pursue him for child support.
Involvement by a Centrelink social worker may be required if the donor insemination was not done through a clinic. While the law is clear that the donor is not the legal father and not liable for child support, at present these laws, and Centrelink policy and practice, is/are being applied in a highly discretionary manner by Centrelink officers. If Centrelink decides not to accept the evidence provided of a donor insemination arrangement and decides that the mother should take reasonable steps to pursue child support from the donor, she can appeal to an authorised review officer, and then to the Social Security Appeals Tribunal, if necessary.
If the mother did attempt to claim child support from the donor, he could avoid liability by demonstrating that the child was conceived through a donor insemination arrangement and therefore he was not liable to pay child support. (B v J)
Having to explain the above to Centrelink may mean admitting to an offence under the Crimes Act 1900 (NSW) (see below), although the prospects of being prosecuted in this context are slim. It is also important to note that it is an offence under the Social Security Act to make a false or misleading statement in connection with applying for benefits.
While the case of B v J made it clear that the donor is not liable for child support under the Child Support Scheme, in some circumstances the Family Court can make orders for child maintenance outside the Child Support Scheme. The position of the donor is still unclear and the Family Court is yet to make a decision about whether a donor would be liable to pay child maintenance under the Family Law Act, as opposed to the Child Support (Assessment) Act. Legal opinion remains divided on this issue.
Passports
By putting the donor on the birth certificate it would appear to the Department of Foreign Affairs and Trade (DFAT) that his consent would be required before a passport could be issued.
The people who are named as the parents on the child's birth certificate must consent to the issuing of a passport for a child under the age of 18, unless:
• the child is married or has previously been married,
• the Family Court has given permission for one parent to remove the child from Australia without the other parent's consent, or
• where a court order has been made to alter parental responsibility, it is those people named in the order who must consent, or
• under the Passports Act 1938 (Cth) a passport can be issued without both parents' consent in "special circumstances".
It may be that "special circumstances" might apply where the mother explains that the person registered as the father is a donor and is therefore not legally recognised under NSW law as the father (Status of Children Act). Some evidence of this fact will be needed to satisfy DFAT. It is unclear what documentation would be accepted, and it may be that a Family Court order would be required.
A decision of DFAT not to issue a passport is an administrative decision and can be appealed. The first appeal is to the Minister and must be done in writing and within 28 days of becoming aware of the decision. The Minister's decision can be appealed to the Administrative Appeals Tribunal. That appeal must also be done within 28 days from the date the Minister's decision is received.
Possible breach of the Crimes Act
There is a view that if the person who registers the birth knows that the donor is not the legal father, the inclusion of his name on the birth certificate may breach the Crimes Act 1900 (NSW) by "wilfully" making false statements in respect of a birth. However there has never been a case involving this issue and the view is not universally held. The penalty for making a false statement is up to 6 months imprisonment or a fine of up to $110.
It is possible to amend details on a birth certificate by applying to the NSW Registry of Births, Deaths and Marriages.
• What are the implications of not putting the donor's name on the birth certificate?
Since the donor is deemed not to be the father there is no obligation on the part of the mother to name the father.
Centrelink may require the mother to name the father in order for it to be satisfied that she has taken reasonable steps to obtain child support. Should this occur the mother will have to explain that the conception was as a result of a private insemination arrangement and that there is no legal father (see the discussion above under ‘Parenting payments and child support’).
• Is the donor liable for child support or child maintenance ?
No. See above under ‘Parenting payments and child support’.
However, if the donor has made a promise to the mother to financially support the child and then reneges on that promise, he may be forced by the court to fulfil that promise. (See the discussion below on W v G under 'Does the co-parent have any rights and responsibilities regarding the child' for how this might happen).
• Can the mother prevent the donor from forming a relationship with the child, or exclude the donor from having residence of or contact with the child?
Under the Family Law Act 1975 any person who has a concern for the "care, welfare or development of the child" - and this could include the donor - can apply to the court for parenting orders. The mother cannot therefore prevent the donor from applying to the court for such orders.
Parenting orders can be made either by consent between the parties, or where agreement cannot be reached, by the court on the application of an interested party.
In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". In determining what 'the best interests of the child' are, the court must consider a number of factors, including, but not limited to:
• the expressed wishes of the child, considering the child's age, maturity and any other factor that may have influenced the child;
• the child's relationship with each parent and with any other person;
• the current arrangements for the child and the effect a change would have on the child;
• the effect a separation from either parent, other children or any other person may have on the child;
• the capacity of each parent (or person) to provide for the child's needs, including emotional and intellectual;
• the child's maturity, sex and background, including contact with culture or traditions of indigenous people;
• the need to protect the child from physical or psychological harm;
• each parent's (or person's) attitude to the child and to the responsibilities of parenthood;
• any family violence involving a child or a member of the child's family;
• the court's preference to make an order that is least likely to result in further proceedings regarding the child;
• any other fact or circumstance the court considers relevant.
The court will therefore consider the nature of the donor's relationship and level of involvement with the child. For example, if the donor has been very closely involved in the child's development and has had regular contact with the child for several years, it is unlikely that he would be denied ongoing contact with the child.
• Will the issue of homosexuality be considered by the court when making orders regarding a child ?
In making any decision regarding children, the paramount consideration for the court is "the best interests of the child". The sexuality of the parties may therefore be a factor that the Family Court will consider when making its decision about what is in the best interests of the child. While in the past the Court has refused to grant parenting orders to gay men or lesbians because of their sexuality, there have been recent cases where residence has been awarded to lesbian mothers and gay fathers. Ultimately it will depend on the individual judge hearing the case, and all the circumstances of the particular case.
• Does the donor have any 'residence,' 'contact' or 'specific issues' rights regarding the child?
The fundamental focus of the Family Law Act is on the child's, rather than the parent(s) rights. Therefore no person has automatic rights regarding the child.
Because the donor is not the legal father (Status of Children Act) the court will not automatically make orders for the child to have contact with him. As discussed above however, he can apply to the Family Court for parenting orders as a person concerned with the "care, welfare or development of the child".
• Does the co-parent have any rights or responsibilities regarding the child?
There are no automatic legal rights or responsibilities that apply to the relationship between the co-parent and the child. However, the case of W v G (1996) has shown that a co-parent may be ordered by the court to accept some responsibility for financially supporting the child (child maintenance).
In that case the co-parent was ordered to fulfil a promise she had made to the mother to financially support the children, because she had encouraged the mother to believe that she could rely and act on that promise of support in becoming pregnant.
The Property (Relationships) Act 1984 now enables same sex de facto partners (ie: people who live together as a couple) to go to the District Court or NSW Supreme Court for orders about property division on the breakdown of a relationship. This can include claims for child maintenance as part of a property division where both parties have taken parental responsibility for the welfare of a child. This is a cheaper and easier way of pursuing child maintenance.
A co-parent can also gain legal recognition of her relationship with the child through the courts. She can apply to the Family Court for parenting orders regarding the child as a person "concerned with the care, welfare or development of the child". This can be done in two situations:
• Where the mother and co-parent both agree that the co-parent's relationship with the child should be legally recognised
The Family Law Act enables joint parenting orders to be made by consent between the parties in favour of both the mother and the lesbian co-parent. This is the most effective way for the mother and co-parent to legally share the rights and responsibilities regarding the child. Independent legal advice should be obtained when making parenting orders by consent.
• Where there is a dispute between the mother and co-parent regarding the child
In the event of a dispute between the mother and co-parent the Family Court will resolve the dispute and make orders based on the "best interests of the child". The court will take into account the factors discussed above. The co-parent may be in a stronger position if a joint parenting order has already been made. Both parties will be required to undergo counselling with a Family Court approved counsellor prior to a final determination of the dispute.
• What is the legal status of any written agreement or contract between the donor and mother, or the mother and the co-parent? Would an agreement of this kind be legally enforceable ?
It is not certain whether written agreements regarding the parties' rights and responsibilities in relation to the child are legally enforceable as this issue has not been tested in Australia. Some agreements regarding rights and responsibilities between donors and biological mothers have been enforced in the United States of America. However it would appear that at this time Australian courts are not prepared to follow the trend emerging in America.
While agreements between the donor and mother and mother and co-parent may not be legally enforceable, they may be useful as evidence of the parties' intentions in any future court action. The process of making such an agreement can in itself be a very useful one, as a means of assisting the parties to think about and articulate their needs and/or expectations of the arrangement. This can also help prevent disputes arising in the future.
It is important to note that agreements of this kind are '"tailor-made" to suit the particular circumstances of the parties involved. One person's agreement should therefore not be used as a 'pro forma' document for someone else. Specific legal advice should be sought on this point.
• Can a co-parent formally adopt her partner's child where that child was conceived through an informal donor insemination arrangement ?
Under the Adoption of Children Act 1965 (NSW) a child becomes the child of the adoptive parent(s) and the legal relationship with the birth parent is severed permanently. At present gay men and lesbians are not legally able to adopt as a couple, but may apply to adopt a child as a single person. If a co-parent were to adopt the child of her partner it would mean that the mother would no longer be considered the legal parent of the child. For this reason adoption is not usually considered to be a feasible option. It should be noted that privately arranged adoptions are illegal.
However, much of what the mother and co-parent may be wishing to achieve when they think about adoption - the legal sharing and recognition of rights and responsibilities regarding the child - may be achieved by obtaining parenting orders from the Family Court by consent. (See above under 'Does the lesbian co-parent have any rights or responsibilities regarding the child?'). Specific legal advice should be sought about this.
• Can the mother state in her will that the co-parent is to have residence of the child if she dies?
A legal parent can nominate someone in their will to be the guardian of the child(ren) in the event of the parent's death (a testamentary guardian). Guardianship of this nature becomes particularly important where there are no existing orders from the Family Court setting out who will be responsible for the care of the child.
The Family Court no longer makes orders appointing people guardians of children, but may make specific issues orders as well as parenting orders. For example if the mother dies the Family Court may make orders granting residence to the co-parent and orders that she alone or with some other interested person share responsibility for the long term care, welfare and development of the child.
The mother's nomination of a testamentary guardian can be challenged in court by other interested people such as grandparents, or in some cases the donor. Although the mother's nomination may not be followed by the court, it is still recommended that provision be made in a will so that the court can assess the deceased's wishes. Any decision of the court will ultimately depend on the court's assessment of the child's best interests.
• What if the will doesn't nominate a testamentary guardian?
Any person with an interest in the "care, welfare or development of the child" - including a co-parent and the donor - can apply to the Family Court for parenting orders on the death of the mother. Any existing contact, residence or specific issues orders would be taken into account by the court, and the court would make such orders as it considers are in 'the best interests of the child'.
It should be noted that regardless of whether or not there is a will nominating a testamentary guardian, if the co-parent has had a significant involvement with the child and its development for several years, a court would be unlikely to discontinue this, as to do so would probably not be in the best interest of the child.
• What are the inheritance rights of a child born as a result of an informal donor insemination arrangement.
Any person is free to dispose of her or his property (estate) as s/he sees fit. Therefore, the mother, co-parent, donor or the donor's partner can make provisions in their wills for the child.
If the mother dies intestate (without a will) the rules of intestacy will apply.
Under recent amendments to the Wills, Probate and Administration Act 1898 same sex de facto partners (ie: people living together as a couple) can now automatically inherit all or part of the estate, depending on how much is in the estate. Depending on its size, the (biological) children of the deceased may also inherit some of the estate.
A child born as a result of artificial insemination is not entitled to a share of the donor's estate because the donor is not legally the father of the child (Status of Children Act ). A dispute may arise in cases where the donor's name is on the birth certificate and the child makes a claim against the estate, whether the donor had died with or without a will. Unless there is proof of an artificial insemination arrangement the court is likely to presume that the child is the legal child of the father. Such a dispute is more likely to arise when the child is an adult and the people who may have knowledge of the donor insemination arrangement may be deceased.
Any will can be contested under the Family Provisions Act 1982 (NSW) if it is considered that the will maker has failed to make proper provisions for relatives or dependants. Claims for a share of the estate can be made under the Act even where there is no will and proper provision has not been made.
Under the Family Provisions Act a child whose long-term welfare has been the responsibility of both the mother and the co-parent can seek part of the co-parent's estate in the event of her death.
A child may be also able to claim against the estates of the donor or donor's partner under the "other dependant's category" of the Family Provisions Act where provisions have not been made for the child. The child would need to establish that s/he was a member of the deceased's household and was wholly or partly dependent on the deceased at some time. This type of situation could arise where the donor and his partner agree to play a regular part in the life of a child conceived through a donor insemination arrangement.
The usual limitation period to make a claim under the Family Provisions Act 1982 (NSW) is 18 months from the death of the deceased.
• Does the mother have to tell Centrelink that she is in a same-sex relationship when applying for Parenting Payments (Single)?
No. Currently the Social Security Act 1991 does not define lesbian and gay couples as "spouses" or recognise them as living as a couple. They are therefore assessed separately as individuals and their partner's income and assets are not taken into account when eligibility for benefits is being assessed.
• Can the mother, co-parent and the child access health insurance at the reduced "family" rate?
This depends on the particular health benefit fund. Most do offer the family rate to same sex couples. Those that refuse to do so can be pursued for discrimination.
The exclusion of a gay couple from the "concessional" or "family" rate was tested in NSW under the Anti-Discrimination Act 1977. In the case of Hope and Brown v NIB Health Fund Limited (1995) it was found that the insurance provider had discriminated against a gay couple and their child by refusing them the concessional family rate for health insurance.
• Are informal donor insemination arrangements legal?
In NSW there is no specific law against self insemination. However, some doubts still remain as to whether such arrangements may breach the Human Tissue Act 1983 (NSW), which regulates the handling of human tissue.
The Human Tissue Act in effect prevents sexually active gay men from donating sperm by requiring the donor to certify on a form that he has not had male-to-male sex for five years. This is because of concerns about the transmission of HIV. This requirement may therefore create problems for gay men who wish to donate sperm. The form is contained in the regulations to the Human Tissue Act, which can be amended. The regulations should therefore be checked for any amendments at the relevant time.
While the Human Tissue Act may apply to private arrangements, this issue has not been tested in the courts. To date there have been no prosecutions and as such a prosecution seems unlikely. The penalty for signing a false or misleading statement regarding the donor's suitability is $5,500 and/or imprisonment for one year.
• Can the donor charge a fee for supplying semen ?
The Human Tissue Act prohibits "trade in human tissue" by anyone other than an authorised provider (such as a clinic). It is therefore illegal in NSW for the donor to charge for providing semen. The penalty for a donor who trades in semen in this manner is a maximum fine of $4,400 and/or 6 months imprisonment. However, it is not illegal for the recipient to cover the cost of medical procedures carried out by the donor to ensure that he is a suitable donor.
• What are the rights and responsibilities of the donor and mother regarding screening for HIV or other infections ?
The relevant medical procedures referred to above should include tests for various infections or diseases, as well as the donor having his sperm count and activity tested to ensure that he is fertile.
The viruses or diseases for which the donor must be tested are set out in the regulations to the Human Tissues Act ("the regulations") and include HIV, Hepatitis B and C and Syphilis. While there is no absolute guarantee regarding the screening of "fresh" semen (as opposed to frozen/stored sperm provided by a clinic) for HIV, the following is the safest possible method to follow. The donor will need to have two HIV tests, three months apart and with no "risk activities between them - such as unprotected penetrative sex or sharing of injecting drug equipment. If both HIV tests are negative the donor's sperm will be as safe as possible. It is important for the donor to be tested twice because of the "window period" of HIV infection. This is the period when a person maybe infected with HIV but the virus cannot be detected by an HIV test. Antibodies to HIV can be detected after three months of infection.
The ideal method of preventing transmission of HIV andd other STDs is the method used by clinics where semen is frozen and stored for six months while the donor is tested and retested to make sure they do not carry transmissible infections. While there is no guarantee that semen is completely safe, instances of HIV transmission due to informal donor insemination have been rare.
The 'Contacts' section in this publication refers to services which provide comprehensive information (including written information) about appropriate and effective screening processes that should be followed when planning to self inseminate with donor sperm.
It is also important to discuss a broad range of health issues with a potential donor so that informed decisions can be made before proceeding with the particular donor. For example, it is advisable to obtain the donor's medical history, including diabetes, allergic disorders, mental illness, and inherited health conditions, such as haemophilia. It will also be useful to know if there is any family history of repeated miscarriages or twins and any family history of breast or cervical cancer which may be relevant in the future if the child is a girl.
The Human Tissue Act requires the person "obtaining or receiving" semen to first get a certificate from the donor attesting to his medical suitability. The certificate should be either in the form set out in the regulations or in a similar form. This should be discussed with a general practitioner when having the relevant tests.
The regulations also require the person to keep the medical certificate for a minimum of 10 years. When donor insemination is carried out in a clinical setting it is clear that the service provider is the "obtainer" of the semen. Where insemination takes place outside a clinical setting it is unclear whether the donor or the mother (or both) are the "obtainers" of the semen. It would therefore be advisable for both the mother and donor to retain copies of the medical certificate. There are penalties of up to $220 for failing to comply with these requirements. The obtaining of this certificate will also protect the donor from the prospect of being sued if the mother contracts a disease for which the donor should have been tested.
Under the Human Tissue Act there is a maximum penalty of $5,500 and/or 1 year imprisonment if a person provides or signs a certificate knowing that it contains false or misleading information.
It is important to note that the purpose of the Human Tissue Act is to set standards for authorised providers of semen. People entering into private or informal arrangements take more risks (both health and legal) in doing so as they do not have the same recourse to legal redress as people who use a clinic if things go wrong.
• AIDS Council of NSW (ACON)
Women's Peer Support Project
For information on insemination and HIV issues, pregnancy for positive women or women with HIV positive partners.
9 Commonwealth Street
Darlinghurst NSW 2010
Ph: 9206 2000
• Anti Discrimination Board of NSW
Level 4, 181 Lawson Street
Redfern NSW 2016
Ph: 318 5400
• Centrelink
Family Payment Line - 131 305
or call your local Centrelink office.
•Community Legal Centres (CLC)
Community Legal Centres provide free legal information, advice and referral. To find the CLC closest to you, contact the NSW Community Legal Centres' Secretariat. Ph: 9318 2355
• Department of Foreign Affairs and Trade -Australian Passport Information Service
12 Floor, 255 Pitt Street
Sydney NSW 2000
Ph: 131 232
• Family Court of Australia
2nd Floor, 97-99 Goulburn Street
Sydney NSW 2000
Ph: 9217 7111
• Family Planning NSW - Telephone Information Nurse Service
For telephone advice and information on fertility, conception and pregnancy.
328-336 Liverpool Road
Ashfield NSW 2131
Ph: 9716 6099
• Leichhardt Women's Community Health Centre
For information about fertility charting, known donor insemination techniques, referrals to fertility clinics, sexual health screening, pregnancy advice and childbirth classes.
55 Thornley Street
Leichhardt NSW 2040
Ph: 9560 3011
• Lesbian and Gay Legal Advice Service (LGLAS)
LGLAS is a project of the Gay and Lesbian Rights Lobby. It is auspiced by and operates out of the Inner City Legal Service every Wednesday evening between 6 - 8 pm. By appointment only. 2nd Floor, 94 Oxford Street
Darlinghurst NSW 2010
Ph: 9332 1966
• Registry of Births, Deaths and Marriages
191 Thomas St
Haymarket NSW 2000
Ph: 9243 8555
• Royal Prince Alfred Hospital - Donor Insemination Clinic
The clinic is held on Thursday afternoons with a doctor and counsellor and covers known donor arrangements and donor insemination using a donor from the hospital sperm bank. Appointments can be made to see the counsellor at any time. It is not necessary to be on the programme to see the counsellor.
Missenden Road
Camperdown NSW 2050
Ph: 9515 7101 for clinic appointment
9515 8119 for appointment with the counsellor
• Welfare Rights Centre (WRC)
The WRC is a community legal centre which specialises in social security law.
5th Floor, 414 Elizabeth Street
Surry Hills NSW 2010
Ph: 9211 5300
• Borthwick, Prue and Bloch, Barbara. Mothers and Others. Sydney, 1996
• Donor Conception Support Group. Let the Offspring Speak: Discussions on Donor Conception. PO Box 53, Georges Hall NSW 2198. Ph: 9624 5110
• Martin, April. The Lesbian and Gay Parenting Handbook. Harper Perennial Books. USA, 1993
• National Centre for Lesbian Rights. Lesbians Choosing Motherhood. San Francisco. Fax: 1-415 392 8442
• Pies, Cherie . Considering Parenthood: A Workbook for Lesbians. Spinster Ink. USA
• Saffron, Lisa. Getting pregnant Our Own Way: A Guide to Alternative Insemination. UK, 1987
• The Boston Women's Health Book Collective. Our Bodies, Our Selves For the New Century. Simon and Schuster. USA, 1998
• The Law Handbook: Your Practical Guide to the Law in New South Wales. 7th edition. (Chapter 25.5 - 'The relationships of lesbians and gay men'). Redfern Legal Centre Publishing. Sydney, 1999
• Wakeling, Louise and Bradstock, Margaret (Editors) Beyond Blood: Writings on the Gay and Lesbian Family. Sydney, 1995
• Family Pride Coalition - http://www.familypride.org
• Gay Dads - http://userwww.service.emory.edu/~librpj/gaydads.html (NO LONGER AVAILABLE)
• Human Rights Campaign - Lesbian Health Links - http://www.hrc.org/issues/lesbianh/index.html
• Lesbian Moms Webpage - http://www.lesbian.org/mums/index.htm (NO LONGER AVAILABLE)
• Women Alive - http://www.thebody.com/wa/wapage.html
This guide is the outcome of a project undertaken by Lynda Watkins, a final year law student at Wollongong University, as part of her student placement with Inner City Legal Centre (ICLC). We thank Lynda for her exhaustive research.
ICLC also wishes to acknowledge the contribution of and thank those people who have given their time, expertise and input to the development of this publication: Vicky Harding, Brigid Inder, Kevin Lapthorn, Jenni Millbank, Kathy Sant, Meena Sripathy
Note to readers
While every effort has been made to ensure that the information in this guide is as up to date and accurate as possible, it is not a substitute for legal advice. The law is complex and readers are advised to seek specific legal advice in relation to their particular situation.
Cover and Illustrations: Chris Bray-Cotton
Production and Design: Australia Region Media
Printed September 1999
This guide was written by Lauren Finestone and Lynda Watkins. It was produced by the Inner City Legal Centre, with a grant from the Law Foundation of NSW.
Any opinions expressed in this publication are the authors' and do not necessarily reflect the views of the Law Foundation's Board of Governors.
For information on where copies of this guide are available contact ICLC.
Get Involved today! Print out a membership form and mail it in. You can contact us one of the following ways: Phone: (02) 9360 6650 - Fax: (02) 9331 7963 - PO Box 9, Darlinghurst, NSW, 1300 - Email: info@glrl.org.au **Contact Jason for site problems** © Gay and Lesbian Rights Lobby Inc. (Incorporated in New South Wales) All rights reserved.
Get Involved today! Print out a membership form and mail it in. You can contact us one of the following ways:
Phone: (02) 9360 6650 - Fax: (02) 9331 7963 - PO Box 9, Darlinghurst, NSW, 1300 - Email: info@glrl.org.au
**Contact Jason for site problems**
© Gay and Lesbian Rights Lobby Inc. (Incorporated in New South Wales) All rights reserved.
• Family Pride Coalition - http://www.familypride.org
• Human Rights Campaign - Lesbian Health Links - http://www.hrc.org/issues/lesbianh/index.html
• Women Alive - http://www.thebody.com/wa/wapage.html