Australian Journal of Human Rights
Cases involving children born from semen that has been gifted by a known donor are infrequent but legally significant. Justice Fogarty's recent decision in B v J, a decision arising from a child support application, is no exception. His Honour in that case found that a known sperm donor who assisted a lesbian couple was not a "parent" for the purposes of the Child Support Assessment Act 1989 (Cth). This was not a novel ruling. Justice Hodgson of the Supreme Court of New South Wales had earlier come to the same conclusion in W v G where a lesbian mother was successful under the law of equity in obtaining a sum of money to cover the future costs of raising two children born during their relationship through alternative insemination methods. The significance of B v J is that Justice Fogarty went on to express tentative views about the types of parental responsibility, financial and otherwise, and also the rights of children, which may flow from the recently amended Family Law Act between a known donor and the child born from such an arrangement.
Justice Fogarty's judgment concluded that some legislative reform is needed with an eye to the "reality of life that children are born as a result of a variety of artificial conception procedures, out of non-traditional circumstances, and into non-traditional families."  This casenote considers some implications of the decision and suggests that account must be taken in a reform process of the broader discrimination and health consequences of denying certain women access to reproductive services.
Mr. B came to the Court seeking a declaration under s 107 of the Child Support Assessment Act that he was not liable to pay child support to the mother of the children, Ms. J. She did not oppose the application and said she was contemplating an action against her former partner Ms. R.
Mr. B and Ms. J were friends, and in both 1988 and 1993 he provided sperm for the insemination of Ms. J by Ms. R. It was said that all three were in agreement that \tMr. B would have neither financial nor parenting obligations in respect of the children conceived. With his consent, Mr. B was registered as the father on the birth certificates for each of the two children.
There was negligible contact amongst them until mid-1995 when Ms. J informed Mr. B that the Department of Social Security would stop her pension unless she applied for child support from him. Soon afterwards, Mr. B received an assessment from the Child Support Agency requiring him to pay more than $350 per month with arrears backdated to 1994. Before the case was heard, the Child Support Registrar and the Commonwealth Attorney-General were invited to intervene but declined.
The central question before the Court was whether Mr. B was a "parent" of the children within the meaning of the Child Support Assessment Act. Justice Fogarty found Mr. B did not fall within the definition and made the declaration sought, thereby erasing liability for the arrears and preventing any further claim against him under that Act.
The essential steps in Justice Fogarty's reasoning were as follows:
In addition to answering the immediate question in the case, Justice Fogarty made some important observations. First, his Honour's judgment showed that there are no prescribed laws of the states and territories which would lead to a different result anywhere in Australia. He said that this could be traced to policy view adopted by the Standing Committee of Attorneys-General, that sperm donors should have no legal rights or obligations to the child in order that the mother's husband or de facto partner would be deemed to be the parent for all intents and purposes. That uniform position would seem to have been premised on insemination treatments being provided to qualifying married or de facto heterosexual couples, usually in circumstances where the donor is anonymous. Even so, Justice Fogarty considered that it was legally clear that the same result applied in cases such as B v J. He added that it was not relevant to the question of child support liability whether a state law criminalises unauthorised insemination.
Secondly, Justice Fogarty suggested that his statutory interpretation meant that the biological mother Ms. J would not be a "parent" for the purposes of the Child Support Assessment Act in most parts of Australia. This is because the child support meaning of "parent" under the Child Support Assessment Act for the biological mother of a child conceived through an "artificial conception procedure" is also defined by reference to \ts 60H of the Family Law Act. As is the case for the semen donor, s 60H(2) depends upon there being prescribed state and territory laws which define the recipient woman as a "parent" for the purposes of the Family Law Act. No such law exists in New South Wales, Victoria, Queensland, Tasmania and Western Australia.
Thirdly, Justice Fogarty was of the view that Mr. B could not rely on any private agreement with Ms. J and Ms. R which purported to prevent Ms. J seeking money for the costs of the children. He said the same would apply to children conceived through heterosexual intercourse. In addition to citing legal authority supporting his stance, he applied the following social policy perspective:
[I]t needs to be emphasised that not only has the community a substantial interest in this area but the right to child support is a right of the child which may not be waived or contracted out by that child's parents, both of whom have the responsibility for that child.
Justice Fogarty's analysis on this point leaves at least one legal uncertainty remaining. His Honour covers the position of the parent entitled under the Child Support Assessment Act to claim support for the child (such as Ms. J) and finds that either in her own right or that of the child, she cannot give up the right to assistance. The judgment does not, however, decide the position of a parent against whom a claim can made (such as Mr. B), outside that scheme and, in particular, whether Mr. B can formally agree with Ms. J and Ms. R that the latter shall stand in for Mr. B as the first person liable to pay support.
Although it was not argued before him, Justice Fogarty said that the broader meaning of "parent" in the Family Law Act may include Mr. B even though the Child Support Assessment Act excludes him. This is because the meaning of "parent" is not defined in section 60H alone "and so there would need to be a specific provision to exclude people who would otherwise be parents. Relevantly here, that means the donor of the genetic material",11 ie Mr. B as well as Ms. J.
This appears a curious result given that all states and territories have laws which presume that a sperm donor is not a parent unless he is the legal or de facto husband of the recipient. It would therefore seem that the judge was pointing to the absence of equivalent provisions in the Family Law Act or other federal law, and was suggesting, without deciding the issue, that state or territory presumptions would not apply in Family Law Act matters.
If the state and territory presumptions have no effect and Mr. B as the semen donor is a "parent" of the children under the Family Law Act then it is hard to see why, theoretically, the same would not be the case for unknown donors in similar circumstances. A contrary argument to his Honour's tentative views, would be that in the absence of express provisions in federal law, the Family Law Act can and should such be read in light of such state and territory presumptions, thereby leaving the sperm donor outside the meaning of "parent".
The consequence of Justice Fogarty's approach would be surprising because donors would be encompassed by the range of parental responsibilities ascribed within the Act. Until a court ordered otherwise:
"except where contrary to the child's best interests, a child has the right to know and be cared for by both parents, that the parents share the duties and responsibilities concerning the care, welfare and development of the children, and that parents should agree about the future parenting of their children."
So far as financial responsibilities are concerned, the judge suggested that Ms. J could still make an application against Mr. B under the sections of the Family Law Act dealing with child maintenance (Div 7 of Pt VII of the Family Law Act). Those provisions are more broadly framed and available for use in circumstances where the Child Support Assessment Act is inapplicable. They speak in terms of an "applicant" and a "respondent" for child maintenance - not in the language of "parents". Thus there is no reason why an application could not also be made by Ms. J against Ms. R.
In either of these actions, there may be argument about the agreement which was said to be made amongst the three of them excusing Mr. B from financial responsibility. If the existence of an agreement is proven, a key question will be "what effect and force does the agreement have?" and the answer would depend in part on interpretation of the Family Law Act.
Section 66C of the Family Law Act lays down the principle that the primary duty to meet the financial needs of the children is said to rest upon their "parents". Under Justice Fogarty's approach, Ms. J is certainly a parent and Mr. B, is probably a parent. Ms. R may be a social parent but previous decisions under the Act have not addressed whether she would have a primary responsibility for the purposes of child maintenance. If that questions is decided, the court's approach will be closely watched in light of criticisms that the law tends to be more ready to bestow responsibilities than rights on lesbians co-parents.
In considering any agreement, the Court would have regard to recent amendments to the Family Law Act which lay down principles to be given effect in children's cases. Particularly relevant is section 60B(2) which states that:
... except when it is or would be contrary to a child's best interests: ... (d) parents should agree about the future parenting of their children.
In addition, section 63B now states that parents are encouraged to reach agreements about matters concerning children, and other provisions enable parents to draw-up a parenting plan covering matters such maintenance which the court may register if it thinks that doing so is in the best interests of the child (s 63E). Generally speaking, once this occurs, the plan has the same effect as if it were an order made by the court.
Even if there was no registered plan involving Mr. B, Ms. J and Ms. R, these and other sections of the Family Law Act can be expected to provide a context in which a court considers any agreement made. On one view, as yet untested, these provisions would support agreements of the type seen in B v J. Justice Fogarty's concern for the child's right to financial support would be satisfied so long as the child's proper financial needs were being met by an agreement. Provided this was found to be so, such an agreement would be in keeping rather than contrary to public policy because the private consensual ordering of "parental" responsibilities is a policy which received increased emphasis under the amended Act.
For lesbians in particular, such a view would also take account of the discrimination which legally bars certain people from accessing medically auspiced reproductive services such as sperm banks where the donor (known or unknown) and his semen are screened.
Only married couples are currently formally eligible in Victoria and under the South Australian law, access to licensed services is restricted to married couples or heterosexual de facto couples who have lived together for five years. Like Ms. J and Ms. R in B v J, it is not uncommon for women excluded from legitimate participation in such services to seek a sympathetic known donor. Not surprisingly, agreements such as the one said to have been made in B v J are frequently part of the backdrop to the donor's willingness to assist.
Depending on the nature and specifics of agreements, they are not necessarily contrary to a child's best interests or public policy. A settled legal framework which places the rights of the child to support foremost, but enables a social partner such as Ms. R to be the first (but perhaps not final) call on financial support for a child, would be preferable. It would take account of the fact that many women circumvent discriminatory criteria which exclude them without any greater call on the state's resources than would otherwise be the case.
Parents who have children living with them are not compelled to make a claim for a contribution to the cost of caring for children under the Child Support Assessment Act. It is a safety net measure and one which children's carers either decide to opt into or, as B v J highlights, may be forced to invoke if they are dependent upon Department of Social Security benefits.
Justice Fogarty's decision does not finally address the validity of private contracts made about meeting the financial needs of children but it should be remembered that where such personal arrangements are made, they do not come under legal scrutiny until something triggers the law's involvement.
Imagine different facts in the present case where Ms. J had an apparently continuing need for the pension, and was told she had to try to obtain child support from Mr. B or lose it. If hypothetically, Ms. J could properly meet the needs of the children without the Department of Social Security, her right to claim a financial contribution \tfrom Mr. B (or her potential to claim from Ms. R) would never have needed to be exercised. The same would be true if the agreement amongst the key players provided that Ms. R would meet all obligations that would fall on Mr. B and she in fact did so to a level that met the children's proper needs. In these scenarios, the family may never have been known to the court.
The practical significance of the decision as to the validity of Ms. J's "right" to claim will mainly therefore be limited to carers of children who need a financial supplement from the state and/or where adequate private arrangements are not honoured. Under Justice Fogarty's analysis, the Child Support Assessment Act is inapplicable to the relationships within B v J. Regardless of whether the claim is against Mr. B or Ms. R, it will not be made under the principally administrative scheme which is said to be an advantage of the Child Support Assessment Act. While an action under the Family Law Act would be preferable to the type of Supreme Court proceedings seen in W v G, it leaves carers and their children having to go through a Court process rather than using a purportedly simpler administrative application. In a time of shrinking legal aid resources, this is a real concern.
To the extent that the Child Support Assessment Act and recent changes to the Family Law Act have been promoted as advantageous to Australia's children, Justice Fogarty's call for parliamentary attention to the position of children conceived in circumstances such as B v J should be heeded:
Some of these issues appear to me to require legislative clarification, including perhaps legislation which operates retrospectively. It is a reality of life that children are born as a result of a variety of artificial conception procedures, out of non-traditional circumstances, and into non-traditional families. Legislation which deals with the personal and financial responsibility for such children should be clear and exhaustive and should recognise the reality of these situations.
There is one particular "reality" in any such consideration not canvassed in Justice Fogarty's judgment, namely, the health consequences to women and the children they seek to have which follow from restrictions on access to medically screened sperm based on marital status and/or sexual orientation. Six years ago Skene and Sware suggested that anti-discrimination laws might over-ride limiting criteria,21 and there have been two significant cases recently. This casenote now turns to consider them.
In JM's case, a Queensland lesbian went through preliminary processes at a fertility clinic never mentioning that her "stable and exclusive" partner is another woman. JM did not tell the clinic (and nor does it seem she was asked) that the child she was co-parenting was with a female partner, and that this child had been conceived through private donor insemination of her partner.
When it came to the commencement of treatment JM was asked to take the consent form home to be signed by her partner. The form "must be signed by the `wife' and `husband' ". After soul-searching about whether to deceive the clinic, JM asserted her right to access donor semen as a lesbian, relying on the prohibition in the Anti-Discrimination Act 1991 (Qld) against discrimination on grounds including lawful sexual activity, in the provision of services.
JM pursued her complaint, but in the meanwhile found a doctor outside of Brisbane who was prepared to help her. She travelled there every month for six to eight months. Her partner's work commitments meant she had to go alone. The treatment did not succeed and ultimately JM conceived through the insemination of sperm from a man with whom they were acquainted. JM gave birth to a healthy baby last year.
The Tribunal decision by (then) President Atkinson records that JM pursued her complaint with a keen eye to the impact of her struggle upon the daughter she was already co-mothering, a girl aged 11 at the time of the decision:
JM was concerned that her partner's daughter, who knows she was conceived by donor insemination, is old enough to know the difficulty that JM and her mother have had in having the right to be treated to conceive another child by AID and this is a situation which stigmatises the process in her eyes.
President Atkinson found that JM had been unlawfully discriminated against by the fertility clinic she approached and the doctor who she consulted at the clinic. It was direct discrimination under the Act for her to have been refused service "because of her lawful sexual activity of being engaged in an exclusive lesbian relationship". JM was also suffered indirect discrimination because the application form, by requiring her to provide the consent of a male partner, imposed an term that persons in stable lesbian relationships are not able to comply with.
Central to these findings was the President's conclusion that the definition of "infertility" used by the respondent doctor was in itself discriminatory. She decided that it was not medically necessary for him to have adopted a definition that depended upon the existence of a medical condition which prevents pregnancy being achieved by a heterosexual couple, and that such a definition was not one he was bound to follow. She found that there are accepted definitions of infertility which do not require discrimination against persons who are involved in "lawful sexual activity" and noted that the 1996 draft guidelines drawn up the Australian Health Ethics Committee of the NHMRC which contain provisions concerning eligibility for "assisted reproductive technology" do not presume that a "couple" seeking such services is opposite sex.
Of particular salience to this casenote, President Atkinson drew attention to clause 2.2 of the draft guidelines which provide for donor insemination "when the woman or the child ... may otherwise to exposed to significant risk thought pursuit of her pregnancy", and said that this was applicable to JM "because of the risk of HIV from an informal donor who has not been through a proper screening process" (JM v QFG and JK at 14).
As documented by Millbank, the decision met with an avalanche of hostile and irrational reaction. Those views betrayed contempt or, at best, disregard for the health of lesbian would-be-mothers and their right to access medically screened sperm. There was the, perhaps, predictable handwringing on the high moral ground and in the media, by public officials and commentators. However, notwithstanding the volume of their (purported) concern for the emotional and psychological development of children born to lesbian mothers, none of the detractors of the decision contemplated the unnecessary health risks incurred by children born without the option of their mothers accessing screening technology, let alone the prospective mothers themselves.
Most pertinent, from a legal viewpoint, was the fact that in all the prejudicial flurry, scant attention was paid to a discrimination case of greater national and constitutional importance decided elsewhere in September 1996.
Pearce v South Australian Health Commission & Others was a challenge to the South Australian Reproductive Technology Act 1988, a law which limits participation in reproductive programs to married or de facto couples who have lived together for a certain period and have specific fertility problems.
Gail Pearce is a woman who separated from her husband in 1994 and was living alone when she brought her action. She wanted access to an in vitro fertilisation procedure and was told she was not eligible. The Full Court of the South Australian Supreme Court decided that the restrictions were in direct conflict with the Commonwealth Sex Discrimination Act 1984 which prohibits discrimination on the grounds of marital status. Since there was a conflict found between Commonwealth and State law, constitutionally, the State restrictions as to marital status were held to be invalid and ineffective. Commenting on Pearce's case, Stuhmcke suggested:
The removal of the requirement that access to reproductive technology be limited to heterosexual marriage or heterosexual de facto couples means that families which have traditionally been perceived as `alternative', such as lesbian couples or single women, may be able to access and use reproductive technology.
The South Australian ruling about the overriding effect of the Sex Discrimination Act makes the Commonwealth government's response to JM's case especially important. Apart from the suggestion following JM's success that Medicare eligibility should be withdrawn for lesbians seeking access to donor sperm, it is also possible that exemptions in respect to reproductive services will be sought from the Human Rights and Equal Opportunity Commission under the Sex Discrimination Act. Indeed, Millbank notes that the National Medical and Health Research Council last year advised service providers to do so. Depending on the stance taken by the Senate, the Sex Discrimination Act could even be amended.
In considering policy responses to the legal landscape, the health consequences of discrimination in access should loom most large. Health dangers are inflicted upon ineligible women and the children they seek to conceive when access is denied to the relatively cheap medical technology which would enable the screening of donor semen.
While the risk of HIV infection may be the harm which most readily springs to mind, it is by no means the only health threat arising from lack of access. Denying usage of available services for a group delimited by marital status or sexual orientation in such circumstances is, in effect, a knowing disregard of the right to benefit from scientific advancement that cannot and must not be sanctioned.
Permitting access to services is quite a different matter to requiring that insemination without intercourse be performed as a medical procedure. Moreover, it is nothing but draconian from a health perspective that laws on Victoria's statutes provide for a sentence of four years imprisonment for women who perform or assist in self-insemination. Wolf is right to suggest that such liability:
may in fact further discourage participants in "illegal AID" from more measures to secure the safety of the procedure by consulting doctors or screening donors.
Such a law serves nobody's interests.
Within restrictive and discriminatory legal environments, it is not surprising that ineligible would-be parents resort to private methods. It was inevitable that a case such as B v J would arise and in it, Justice Fogarty has properly drawn attention to the need for legislative attention to both the rights of such children to financial support and the responsibilities of the adults involved.
A case fully argued before a court may reach a different conclusion about the parental status of sperm donors, one which does not compromise children's rights but at the same time may serve as less of a disincentive than the suggestions in B v J which have the potential to deter men who would otherwise lend assistance to lesbians facing the antipathy illustrated by JM's case.
The review which Justice Fogarty urges must not occur in a vacuum. In keeping with his suggestion that social realities have to appreciated, this article has attempted to highlight recent developments concerning discriminatory access to insemination services and the consequences they bring. Foremost among the harms of discriminatory provisions must rate the infliction of avoidable risks associated with exclusion from semen-screening and other technologies, and the rights implications of such a course.
In the context of public policy debates over censorship, the Reverend Timothy Healy, President of the New York Public Library had this to say on the intersection of law and morality:
We have a good law if it will be obeyed, if it is enforceable, and if it is so prudently drafted that it avoids most of the harmful effects that could flow from it. If a law does none of these things it is a bad law, no matter what the logic or moral intensity behind it.
Any examination of the law in the area of children born with the assistance of reproductive services should be evaluated with Reverend Healy's guiding principle as the touchstone. At a minimum, it must be free of the homophobia witnessed in response to the Tribunal's decision in JM's case and keen to the tragic human health consequences that cannot be redressed.
A postscript to this article is published on p 228-229 of this issue of the journal (Ed).
 Senior Legal Associate to the Chief Justice of the Family Court of Australia. The views expressed in this article are personal unless otherwise attributed. I thank Jenni Millbank and Jenny Morgan for their consistently stimulating perspectives on these and other topics.
 (1996) FLC 92-716.
 (1996) 20 Fam LR 49.
 Millbank J (1996) "An implied promise to parent: lesbian families, litigation and W v G (1996) 20 Fam LR 49" 10 ( 2) Australian Journal of Family Law 112 and Sandor D (1996) "Paying for the promise of co-parenting: a case of child maintenance in disguise?"\t43 Family Matters, 24.
 B v J at 83,621.
 See the discussion in Kovacs D "The AID child and the alternative family" (1997) 11(2) Australian Journal of Family Law 141.
 See also W v G (1996) 20 Fam LR 49 at 62-3 and Millbank J (1996) "An implied promise to parents: lesbian families, litigation and W v G (1996) 20 Fam LR 49" 10(2) Australian Journal of Family Law 112 at 113 fn 4.
 This is contrary to the suggestion made in Sander op cit.
 B v J at 83,619. See the discussion of American cases which have treated agreements amongst parties to the insemination as effective in Kovacs op cit. Fogarty J said that such cases "have no application in Australia": B v J at 83,619.
 It is for this reason that the authority of his Honour's findings is less certain.
 B v J at 83,620.
 See W v G (1996) 20 Fam LR 49 at 62-65.
 B v J at 83,620. Interestingly, Millbank J Lesbian Families and Australian Laws (1997) A Position Paper prepared for the Coalition of Activist Lesbians (available from the author at the Law School, University of Sydney) at 26 notes there is only one known (and unreported) Australian case where a donor has claimed what was then termed custody, of a child.
 Millbank (1996) op cit.
 This objects section of the Act was considered in `B and B : Family Law Reform Act 1995' (1997) FLC 92-755.
 See s 63G of the Family Law Act in respect of maintenance and for parenting plans which cover other responsibilities note s 63F.
 For a detailed consideration of this and other discriminatory issues see Millbank (1997) op cit.
 The Infertility Treatment (Amendment) Bill 1997 was introduced into the Legislative Council of Victoria by the Minister for Health on 22 April 1997. Amongst its provisions is the extension of "access to treatment procedures under the Act to de facto couples living together as husband and wife on a genuine domestic basis": Parliament of Victoria Scrutiny of Acts and Regulations Committee (1997) Alert Digest No. 4, p 20. The Bill was a direct result of the finding by the Human Rights and Equal Opportunity Commission that the marital status restriction in the currently operative Victorian Infertility (Medical Procedures) Act 1984 is discriminatory: MW, DD, TA, AB v Royal Women's Hospital, Freemasons Hospital and the State of Victoria (Decision delivered 5 March 1997 by Commissioner Kohl, HREOC).
 See the discussion of public policy considerations in Kovacs D op cit.
 B v J at 83,621.
 Skene L and Szwarc J "Access to reproductive technology programs -- discrimination aspects" in Final Report of the Australian Health Ministers Conference, (1991).
 See the conflict of evidence as to the evidence of a doctor at QFG which is reminiscent of the "don't ask/don't tell" policy reminiscent of the United States Armed Services: JM v QFG and GK and the State of Queensland (Decision delivered 31 January 1997 by President Atkinson of the Queensland Anti-Discrimination Commission. The decision is digested at (1997) EOC 92-876) at 3 and 5-6.
 JM v QFG and GK and the State of Queensland at 4.
 JM v QFG and GK and the State of Queensland at 5.
 Sections 7(1), 10, 11 and 46.
 JM v QFG and GK and the State of Queensland at 6.
 See Millbank J "Every sperm is sacred?" (1997) 22(3) Alternative Law Journal 126.
 In discussing the draft guidelines of the Australian Health Ethics Committee, President
Atkinson noted that cl 2.2(b) of the disability criteria for assisted reproductive technology (ART) is "when the woman or child born of ARTmay otherwise be exposed to significant risk through her pursuit of pregnancy" The President observed that is no reason why JM and her partner would fall outside that definition "because of the risk of HIV from an informed donor who has not been through a proper screening process": JM v QFGand GK and the State of Queensland at 13-14.
 Surprisingly, I could find only one print media item on Pearce's case. It's triumphant tone is telling: `Gail beat a law that denied her a baby' The Advertiser 11 September 1996, 1-2.
  SASC 5801; (1996) 66 SASR 486.
 Stuhmcke A "Access to reproductive technology: Pearce v SA Health Commission (1996) 5 Australian Health Law Bulletin 39 at 40. While this maybe still correct in respect of Rohner and Tineo v Scarlan and the Minister for Immigration ad Multicultural Affairs
(judgment delivered 7 November 1997, Federal Court of Australia). In the context of migration law case, Justice Lehare there held that it is not an object of the Sex Discrimination Act 1984 to protect against discrimination based on a person's sexual orientation or a person's relationship with another person of the same sex.
 Millbank (1997) op cit at 21.
 "Minister moves to deny lesbians fertility access" The Courier Mail, 12 February 1997, 2: "Mr Horan is expected to write to Federal Health Minister Michael Wooldridge calling on the Howard Government to adopt complementary legislation."
 Article 27 Universal Declaration of Human Rights; Article 15(b) International Covenant on Social Economic and Cultural Rights.
 Arnup K "Finding fathers: artificial insemination, lesbians, and the law" (1994) 7 Canadian Journal of Women and the Law 97.
 Wolf G "Frustrating sperm: regulation of AID in Victoria under the Infertility Treatment Act 1995 (Vic)" (1996) 10(2) Australian Journal of Family Law 71 at 80.
 Hughes R Culture of Complaint -- The Fraying of America (Oxford University Press, London 1993) 164.