In NSW, babies are born every year who are conceived as a result of using donated sperm either from a private donor or by using Assisted Reproductive Technology (ART) treatment. While the use of privately donated sperm is unregulated, the use of donated sperm in ART treatment is regulated by the Assisted Reproductive Technology Act (ART Act) which among other things:
- requires that all providers of ART treatments be registered with NSW Ministry of Health;
- prohibits anonymous sperm donations;
- limits Sperm Donors from donating sperm to more than 5 recipients;
- sets standards in regards to testing of donors; and
- mandates the registration of certain Sperm Donor information in a Central Register about the donor’s ethnicity, physical characteristics and medical history including genetic test results of the Sperm Donor and the donor’s family.
The Sperm Donor information held in the Central Registry becomes accessible to a child conceived using ART treatment once the child turns 18.
Regardless of whether a “donor conceived child” was conceived using a private Sperm Donor or via ART treatment, under NSW law a Sperm Donor is not a parent and therefore does not have parental rights. Section 14 of the NSW Status of Children Act 1996 states that a Sperm Donor is presumed not to be the Father of a child conceived using his sperm, unless he is the husband or de facto partner of the Mother.
This Act also provides that if a married woman (including a woman in a de facto relationship) has undergone a fertilisation procedure and becomes pregnant and her husband consented to the procedure, her husband is presumed to be the father of any child born even if he did not provide the sperm for the procedure.
Section 60H of the Family Law Act 1975 deals with children born as a result of artificial conception procedures and, in relation to sperm donorship, it provides that:
“if, as a result of an artificial conception procedure, a child is born to a married woman or a woman in a de facto relationship, and the woman and her spouse or partner consented to the carrying out of the procedure, then whether or not the child is biologically a child of the woman and her spouse or partner, for the purposes of the Family Law Act, the child is the child of the woman and her spouse or partner and, if any other person provided genetic material, “the child is not the child of that person”;
Section 60H of the Family Law Act does not however specifically deal with the circumstance where a single woman undergoes an artificial conception procedure for the purposes of the Family Law Act.