Building your family with the help of a donor, whether donor sperm or donor eggs, is a significant and deeply personal decision. It can be a wonderful path to parenthood, and it also comes with legal considerations that are worth understanding, particularly in private arrangements outside a clinic.
If you are the recipient of donor gametes, this page explains your legal position: whether you are the legal parent, what rights a donor may have, and what the future holds around a donor-conceived child’s access to information. Our donor conception lawyers can assist with advice and guidance.
Are you the legal parent if you use a donor?
In most cases, yes. Under the Family Law Act 1975 (Cth), where a woman conceives through an artificial conception procedure while married or in a de facto relationship, and she, her partner and any donor consented, the child is the child of the woman and her partner, and the donor is not a legal parent. Where a woman conceives using donor material and has no partner, the child is her child, and the donor is not a legal parent.
Same-sex female couples can be recorded on a child’s birth certificate as the parents from birth where the child is born of their relationship using donor sperm, without needing a parentage order just because a donor was used. This outcome does not always depend on the Family Law Act — it often flows from the relevant state or territory legislation dealing with the status of children. In Queensland, the Status of Children Act 1978 provides that where a donor’s semen is used in a fertilisation procedure, the donor has no rights or liabilities in respect of any child born, and it creates an irrebuttable presumption that the birth mother’s female de facto partner is, for all purposes, a parent of the child, provided she consented to the procedure. That presumption covers home insemination as well as clinic conception, so in Queensland both partners can be recorded on the birth certificate whether or not a clinic was involved.
New South Wales takes a similar approach under the Status of Children Act 1996 (NSW): a female de facto partner who consented to the fertilisation procedure is irrebuttably presumed to be a parent of the child, and the sperm donor is presumed not to be a parent.
Because these presumptions sit in state and territory law, the precise position varies depending on where you are. What remains most worth taking advice on is a known donor’s role and involvement, which is where recipients most often benefit from a donor agreement recording everyone’s intentions before conception.
What rights does the donor have?
Usually none as a legal parent, where the requirements of the Family Law Act are met, but the answer depends on the circumstances. Recipients are often grateful for the gift of donation and, at the same time, want reassurance about the donor’s ongoing role and legal standing. Through a clinic, a donor is generally not a legal parent and has no parental responsibility.
Outside a clinic, or where a known donor is closely involved, the position can be less clear. Recording everyone’s intentions in a donor agreement before conception is the best way for recipients to reduce uncertainty about the donor’s future involvement.
What about the child’s access to donor information?
Australia has moved firmly toward recognising that donor-conceived people should be able to access information about their genetic origins, and recipients should understand this from the outset. Anonymous donation was phased out nationally through the mid-2000s, so donations from around that time onward are generally identifiable. What a donor-conceived person can access, and from what date, depends on the state. Parents can generally access information on behalf of a child under 18, and donor-conceived people can access it themselves once they are old enough, subject to the rules where they were conceived.
Some states now allow retrospective access to identifying information even where a donation was originally anonymous. Victoria goes furthest, giving all donor-conceived Victorians access regardless of when they were conceived, and South Australia and Queensland have more recently expanded access. In other states this is not guaranteed, and depends on the records still existing and any consents that apply.
In Victoria, New South Wales, Queensland and Western Australia this information is held in central donor conception registers. In other states and territories, records are held by individual clinics. We explain what this means for your family on our donor information access page.
How we help
We advise recipients of donor gametes on:
- Your legal status as a parent and how the Family Law Act applies to you
- The donor’s legal position and how to reduce uncertainty about their role
- Preparing or reviewing a donor agreement or specifically a sperm donor agreement
- What a donor-conceived child’s future access to information means for your family
Learn more on our page Donor Conception Lawyers. Consultations run by Zoom, phone or in person. Book a time or visit our contact page.
Questions recipients of donor gametes ask us
If I use donor sperm or eggs, is the donor my child’s parent?
Generally not. Where the requirements of the Family Law Act or the relevant state or territory status of children legislation are met, the donor is not a legal parent and has no parental responsibility. For same-sex female couples, state laws such as the Status of Children Act 1978 (Qld) can also make both partners the child’s legal parents, including where conception happens at home rather than through a clinic. Where a known donor is closely involved, the position can be less clear, which is why a donor agreement is so valuable.
Do my partner and I both need to consent?
Consent by the recipient of donor gametes, their partner and the donor is central to how the Family Law Act presumptions work. We can explain what is required in your situation.
Will my child be able to find out who the donor is? In most cases, yes, when they are old enough. Australia has moved firmly toward donor-conceived people having the right to know their genetic origins. Our information access page explains how this works.
Do I need a donor agreement if I am using a clinic? The legal risk is lower through a clinic, but some recipients still want an agreement for clarity, and it is strongly recommended for known-donor or outside-clinic arrangements.
Get in touch
If you are using a donor to build your family, a conversation early on can give you real peace of mind about your legal position.
Book an appointment or visit our contact page.
