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