Eburn, Michael --- "Should paternity be linked to sexual intercourse?" [2006] NZYbkNZJur 17; (2006) 9 Yearbook of New Zealand Jurisprudence 257

Last Updated: 24 April 2015

Should Paternity Be Linked To Sexual Intercourse?

Michael Eburn*

i. intrOdUctiOn

Although issues of paternity are usually uncontroversial, the use of artificial insemination has required the law to develop rules to determine who is to be considered the father of a child. This paper will look at paternity and the important, but misplaced focus that the law places on sexual intercourse in deciding who should have paternal rights and responsibilities.¹

It is argued that the law could chose between one of three reasonable options for defining who is the father of a child, they are the genetic father, the social father or accept that children have more than one father. Under current Australian law a child can have only one father but determining who the

‘father’ is depends on none of these factors, instead the laws focus is on whether or not the child was conceived following an act of sexual intercourse or artificial insemination. It is argued that the current approach is misplaced and unreasonable. In developing this argument I will explore the logical implications of the various legal options available.

ii. paternity and aUStraLian FamiLy Law

The Family Law Act 1975 (Cth) does not comprehensively define who is a father or a parent of a child. In Tobin v Tobin 2 the court was asked to take an expansive view of who is a parent and include a person who had been the foster father of a child and who had, therefore, voluntarily undertaken the care of a child and traditional paternal responsibilities. With respect to the obligation to pay child support, the court said ‘in our view, the natural meaning of the word [parent] of a child is the biological mother or father of the child and not a person who stands in loco parentis.’³

Statutory provisions create exceptions to this rule and so give an extended definition of ‘parent’. Where a child has been adopted, ‘parent’ means an adoptive parent of that child.⁴ Where a child has been conceived as a result of

* Senior Lecturer, School of Law, University of New England, Armidale, NSW.

1. Issues can arise as to who is the mother of a child, but they are not issues I will explore here.

2 [1999] FamCA 446; (1999) 24 FamLR 635.

3 Ibid, 645.

4 Family Law Act 1975 (Cth) s 60D.

artificial conception procedures, then, subject to relevant state law (discussed below), the father is the man who was married to the woman at the time and who consented to the procedure.⁵ In both of these cases, the biological father is not a ‘parent’ for the purposes of either the Child Support (Assessment) Act

1989 (Cth) or the Family Law Act 1975 (Cth).⁶

Paternity and State Legislation

State and Territory legislation not only defines who the father of a child is, but also who is not the father.⁷ Where a child is conceived as a result of an artificial conception procedure, the sperm donor is conclusively presumed not to be the father of the child. Where the woman is married or in a de facto relationship, (and in Western Australia and the Northern Territory, this includes a same sex de facto relationship,⁸) and her partner consents to the procedure, then her partner is presumed to be a parent of the child.

The Assumptions behind Paternity

There are a number of assumptions behind paternity law. First it is generally assumed that every child needs a father. Of course every child does require some male person to provide sperm in order for a pregnancy to occur, but this assumption is that every child needs a social father. The Prime Minister, John Howard has said:

The issue here is the right of children in our society to have the reasonable expectation, other things being equal, that they have the care and attention and love of both a mother and a father.⁹

There is also an assumption that the family is made up of two parents, the mother and father and that there is no room (except in Western Australia and the Northern Territory, where both parents may be women) for any other ‘parenting’ model. In most Australian jurisdictions, a child has two, heterosexual parents and no more; and anything else is seen as a departure from both the norm and the best.

5 Family Law Act 1975 (Cth) s 60H.

6 Re B and J [1996] FamCA 124; (1996) 21 FamLR 186; Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579.

7 Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) ss 5D, 5F; Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1978 (Qld) ss 15, 18; Family Relationships Act 1975 (SA) ss 10(d), 10e(2); Status of Children Act 1974 (Tas) s 10C(1) and (2); Status of Children Act 1974 (Vic) ss 10C; 10D; 10E and 10F; Artificial Conception Act 1985 (WA) ss 6 and 7.

8 Status of Children Act 1978 (NT) ss 5DA; Artificial Conception Act 1985 (WA) s 6A.

9 ‘Transcript of the Prime Minister The Hon John Howard MP Radio Interview With John Faine – 3L0 2 August 2000’ <http://www.pm.gov.au/news/interviews/2000/interview352. htm> at 4 May 2005.

Artificial Insemination and the Nuclear Family

Where a child is conceived as a result of artificial conception, the majority of Australian legislative schemes assume that the child will be born into a heterosexual nuclear family of mother, father and the children. Even in Western Australia and the Northern Territory, there is no room for a ‘father’, other than the mother’s husband. There is no expectation that the biological father, the sperm donor, will want to, or should, play any part in the child’s life. Accordingly the sperm donor is expected to be an anonymous, philanthropic donor, who donates sperm for the purpose of assisting some unknown couple to achieve their dream of having children.

The presumptions in the legislative scheme governing children conceived via artificial fertilisation procedures, and in particular artificial insemination displace the ‘the natural meaning’¹⁰ of the word father and replace the biological father with social father (if there is one). The aim is to ensure that the family of mother and father and child born as a result of artificial insemination is for all legal purposes equal to the family of mother, father and child conceived by an act of sexual intercourse. Further

It enables a woman to have a child using sperm obtained from a man who is not her husband, secure in the knowledge that that man will not be able to interfere in the life of her child. ... ¹¹

This act of replacement may well be reasonable if we accept the view of the Prime Minister that the heterosexual nuclear family is the appropriate, and the best, place to raise children. It may also reasonable, even without the heterosexual prejudice, to recognise that a man who is actively involved in a child’s life is more appropriately described as a ‘father’ than a man who donates genetic material essential for the child’s conception, but who is otherwise not involved in the child’s life. That is, the social parent is more important than the biological parent.

The problem with all assumptions about what people want and how people will behave, is that not everyone behaves as it is assumed they will, and fixed assumptions do not give sufficient recognition to choices that people may want to make. Re Patrick¹² is a case in point. The social parents of Patrick were a lesbian couple, but the sperm donor was a known former friend of Patrick’s biological mother. The initial assumption, that a child will be born into a heterosexual nuclear family, was clearly not met. Further, whilst the parents of Patrick may have believed the assumption that sperm donors do

10 [1999] FamCA 446; (1999) 24 FamLR 635, 645.

11 Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122, 130.

12 [2002] FamCA 193; (2002) 28 FamLR 579.

not want to be involved in the life of the child, their sperm donor did not meet their expectations and looked for ongoing contact with Patrick. He ultimately sought, and was granted, orders in the Family Court to ensure continuing contact. Contrary to the mother’s expectations, the law did not guarantee that the sperm donor would not ‘be able to interfere in the life of her child.’¹³

The fact that the biological father in Re Patrick wanted to know the child he helped create does not appear to be unique. In his judgment Guest J referred to ‘a survey of 84 women attending the Sydney Lesbian Parenting Conference in 2000.’ That survey found that in 12% of cases, the sperm donor had a

‘sharing of parental responsibilities’; 33% of parents reported some contact between the child and the donor; 22% had regular contact and 13% had extensive contact.¹⁴

In 2004 the Auckland Family Court gave a sperm donor shared guardianship

of the child produced by artificial insemination.¹⁵

A review of Australian donors advertising on ‘Sperm Donors Worldwide’¹⁶ reveals 14 donors who of whom 11 indicated they would want, at least, to be identified to the child as the sperm donor. Some wanted more, they said they would:

... not be a hands-on ‘father’ on a day-to-day basis, but would still care for and love him/her. I would like to visit him/her occasionally and for him/her to eventually know that I am the biological father.

... like some involvement.

... like to be a known donor which could mean anything from co-parenting to regular visitation, yearly meetings, or at least meeting the child at 16 years old, or earlier if he or she requests.¹⁷

What this shows is that although the majority of sperm donors may wish to remain anonymous, a significant number want to know the children that are produced and to be involved in their lives. The assumption that all donors wish to remain anonymous is not correct for a significant number of donors and the families who bear their children.

13 Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122, 130.

14 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 651.

15 ‘Victory for Sperm donor’ The Age (Melbourne), 19 April 2004 <http://www.theage.com. au/articles/2004/04/18/1082226636127.html> at 6 June 2005.

16 <http://www.sperm-donors-worldwide.com/free_sperm_donations_australia.htm> at 4 May

2005.

17 That sample may of course be distorted by the fact that they are making sperm available via the World Wide Web whereas donors who want anonymity would go to more traditional health clinics where their privacy might be guaranteed.

In Re Patrick Guest J was concerned with a family created by a homosexual couple. In that context he said that the Family Law Act 1975 (Cth) ‘... was drafted with a heterosexual model in mind and thus fails to recognise the complexity of family forms that might be created through artificial insemination.’¹⁸ This failure ‘to recognise the complexity of family forms’ is equally true whether the family is homosexual, heterosexual or a single parent family. As family forms change with increasing numbers of single parent families and blended families it might be time to reassess all our presumptions about paternity and the ramifications of the current law.

iii. chOiceS

The choice we should make

Clearly biological and social fathers are important and the law can, and sometimes does, chose between them when deciding where paternal rights and responsibilities lie. It is arguable there is no need to make a choice at all and we should accept that a child can have more than one father and that both the genetic and social fathers should be regarded as ‘fathers’ according to law. If, however, we accept for the sake of the argument, that a child can have only one father¹⁹ then the father should be either the social father or the biological father.

The choice we do make

The problem with the current law is that it recognises two essential aspects of fatherhood, the genetic and the social, but the distinction upon which paternity is based is neither of these, rather it is whether or not an act of sexual intercourse took place. Sexual intercourse is not, and should not, be the definitive test of fatherhood so the law’s criteria for distinguishing when the genetic and when the social father is to be considered the lawful father of the child is misplaced.

An example

Let us take as an example, Neville. Let us assume that Neville is the ideal man with a PhD in astrophysics and several competitive aerobics titles to his name. Assume the following scenarios occur in Neville’s life:

1. Neville’s sister, Jane is a lesbian. To assist Jane and her partner, Mary, to have a family, Neville agrees to donate sperm to allow Mary to conceive a child. They want to use Neville so there is some genetic relationship

18 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 652.

19 Tobin v Tobin [1999] FamCA 446; (1999) 24 FamLR 635, 645.

between Jane and the resultant child. Neville engages in an act of sexual intercourse with Mary as a result of which Mary falls pregnant and gives birth to Annabelle (“A”). Neville takes on his agreed role of ‘uncle’ with enthusiasm.

2. Neville likes the feeling of helping a couple to conceive, so he makes a donation to the local sperm bank. With Neville’s good looks and intellect, he is a popular donor and very soon after his donation a child, Belinda (“B”), is born to a married couple.

3. Neville goes to a disco where he meets a young woman and they engage in an act of sexual intercourse. They use contraception which, unfortunately, fails and Neville’s casual sexual partner falls pregnant. Neville indicates that he has no interest in being a father and offers to pay for, and support her through, a termination of pregnancy; an offer which she declines. She eventually gives birth to Christopher (“C”).

4. Finally Jane and Mary decide to have another child. Neville again agrees to donate sperm and does so by ejaculating into a cup; the sperm is introduced to Mary’s body via a syringe. Mary again falls pregnant and gives birth to David (“D”). Again Neville takes on the role of uncle to D.

Neville is the lawful father of two children, that is Mary’s first child, ‘A’ and the child born as a result of the act of casual sexual intercourse, ‘C’. He is not the lawful father of the other two children, ‘B’ and ‘D’. The question that we need to ask is ‘What makes the various cases similar or different and is that sufficient to justify the different legal position of Neville?’

Genetic issues

Clearly the genetic relationship between Neville and the four children is the same. He is the genetic or biological father of each child. Clearly it is not genetics that is decisive when determining who the ‘father’ is.

Social issues

The social relationships are clearly different. In the case of ‘D’ Neville has an ongoing relationship with the child, but it is as ‘uncle’. That relationship can give rise to standing in the Family Court. Although the court could not order him to pay child support,²⁰ he would, if he can establish that he is ‘concerned with the care, welfare or development of the child’²¹ have standing to apply for a parenting order to ensure ongoing contact with D. Standing depends on

20 Ibid.

21 Family Law Act 1975 (Cth) s 65C.

the fact that there is a relationship²² and the ultimate order would depend on the court’s assessment of what is in the child’s best interests²³ but the result is that there is at least the possibility of seeking the court’s assistance to continue the relationship that the parties agreed to and have established.

The situation is not the same for A. With respect to A, the intention is the same; that is A will be the child of Jane and Mary and Neville will be her

‘uncle’. Despite that clear intention Neville is the child’s father and, again despite a clear intention to the contrary, Neville has ‘parental responsibility’ for A²⁴ and the primary duty to maintain A.²⁵ Should Mary apply for child support, Neville would be liable to support A even though that liability was never intended. Neville would have standing to apply for a parenting order, and in considering the child’s best interests, the Family Court would have to have regard to the underlying principles that:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children.²⁶

These rights can be enforced by and against both Mary and Neville. Despite the fact that when the child was conceived, it was not intended that Neville would be a social parent he could apply to have A live with him or for contact; Mary could apply for an administrative assessment of child support²⁷ and Neville would be obliged to provide that support.

Neville’s responsibilities as a parent to A may be very important if Jane and Mary were unable to care for A, for example if they were killed. In this case A would be without her social parents, and Neville, because he is her father,

22 Family Law Act 1975 (Cth) s 65C.

23 Family Law Act 1975 (Cth) s 65E.

24 Family Law Act 1975 (Cth) s 61C.

25 Child Support (Assessment) Act 1983 (Cth) s 3.

26 Family Law Act 1975 (Cth) s 60B.

27 Child Support (Assessment) Act 1989 (Cth) s 25.

would have an obligation to support and care for A. This is an obligation that does not apply to D even though the genetic and social relationships are the same.

With respect to child B, under State, Territory and Federal law, Neville is not the father of the child.²⁸ Regardless of what happens to that child, Neville has no standing to seek a parenting order, and no obligation to support the child.

With respect to child C, as with child A, Neville is the child’s father with all the rights and responsibilities imposed by law. There is however a difference here between A and C. In the case of the conception of A, Neville intended, in fact desired, that a child would be conceived and born. It was his objective, as it was with the conception of children B and D, to see that a child was born.

With respect to child C it was clearly not his, or his partner’s, intention to have a child conceived and born. In this case they used contraception to try and avoid a pregnancy. Once the child was conceived, the choice of whether or not to terminate the pregnancy was hers and hers alone. He could neither force her to have a termination, nor could he force her not to.²⁹ Her choice, however, determined his rights, obligations and liability. Once the child was born he can be liable to maintain the child as well as having parenting rights and responsibilities. These rights and responsibilities can be enforced against the wishes of either party, so he could seek orders relating to residence and contact even though she might wish him to have no contact with the child or with her. He can be forced to make a financial contribution to the welfare of the child, even though he has no contact and did not want the pregnancy to proceed. His wishes, and hers, are irrelevant in determining legal rights and responsibilities vis-à-vis the child and each other.

iv. what ShOULd Be the teSt?

The difference in the various legal positions is determined not by genetics, social role, or intention but by whether or not an act of sexual intercourse took place. With respect to children A and C the child was conceived after an act of sexual intercourse and so Neville is the child’s father. In the case of children B and D there was an artificial conception procedure and so he is

28 Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) ss 5D, 5F; Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1978 (Qld) ss 15, 18; Family Relationships Act 1975 (SA) ss 10(d), 10e(2); Status of Children Act 1974 (Tas) s 10C(1) and (2); Status of Children Act 1974 (Vic) ss 10C; 10D; 10E and 10F; Artificial Conception Act 1985 (WA) ss 6 and 7.

29 In the marriage of F and F (1989) 13 FamLR 189.

not the father. It does not matter that in the case of D the procedure was not medically supervised, it was an artificial conception procedure and the legal consequences follow.³⁰

Whether or not an act of sexual intercourse takes place should not be the defining test for fatherhood. The appropriate choice, if a choice has to be made, should be based on either genetics, or social responsibility and intention. The consequences of these options are considered below.

All biological fathers are fathers

We know from the experience with adopted children that children do want to know who their biological parents are. Children may have a significant interest in tracing their genetic background to determine something about who they are.

Psychologists have recognised a condition of “genealogical bewilderment” which children can experience if they are unable to discover their full geological ancestry. ... it is important for individuals to have a “sense of continuity” which derives from knowledge of their “origins”.³¹

This need has been recognised by commentators³² and in Victoria where the Infertility Treatment Act (Vic) permits children born as a result of artificial conception procedures to obtain information, including identifying information, about their donor parent.³³

If we adopt a biological test, then the biological father of a child, howsoever conceived, should be recognised as ‘a’ father of the child. This does not however, mean that the biological father will have instant rights and/or responsibilities. It will still be the case that families can negotiate the role for each party in the family.

Where a child is conceived by artificial insemination and born into a family that is capable of supporting that child, then there is no obligation upon the donor to be involved in the child’s life. Life would be just as it is for most artificial insemination families. Recognition of biological parenthood would do no more than give the donor standing but should a sperm donor appear after many years and demand some involvement in the child’s life, that could

30 B v J [1996] FamCA 124; (1996) 21 FamLR 186; W v G (1996) 20 FamLR 49; Re Patrick (2002) 28 FamLR

579.

31 Gabrielle Wolf ‘Frustrating Sperm: Regulation of AID in Victoria under the Infertility

Treatment Act 1995 (Vic); (1996) 10 AustralianJFamL 71, 74-75.

32 See Helen Gamble ‘Fathers and the New Reproductive Technologies: Recognition of the

Donor as Parent’ (1990) 4 AustralianJFamL 131, 140-141.

33 Infertility Treatment Amendment Act 1995 (Vic), s 79.

be resisted by the social parents on the basis that such contact would not be in the child’s best interests. Should it be necessary, the court would have to determine that issue but it can be predicted that, as is currently the case, it would be ‘... the social and not the genetic relationship of a parent ... [that will be] the most influential in court.’³⁴

On the other hand, recognition that biological parenthood is an important factor, then, as in Victoria, children born as a result of artificial insemination would have a right to access information about their father including identifying information. Further, if a man is a father of a child then he would have an obligation to maintain that child should that be necessary. Again that obligation would not be automatic, where the social parents are able to provide for the child’s needs there would be no need to involve the biological father. If, on the other hand, the social parents fall on hard times then the child and/or his or her social parents could look to the biological father for support. Guest J said that a legislative provision that presumes a sperm donor is not a father

is readily understood [because] to encumber a donor, for example, with financial responsibility for child support pursuant to the provisions of the Child Support (Assessment) Act 1989 ... would be fundamentally wrong...³⁵

It is not clear, however, why it would be fundamentally wrong. Here we have a man deliberately and intentionally contributing to the birth of a child. We would think it fundamentally wrong for a man to turn his back on the needs of children born as a result of an act of sexual intercourse, including casual sexual intercourse and such an action is not permitted under current law. A man may be required to pay child support for any child conceived after an act of sexual intercourse,³⁶ regardless of any express agreement to release him from that obligation³⁷ and regardless of any clear evidence that it was not his intention to father a child. Why then should a man who knowingly contributes to the birth of a child not accept some responsibility for the welfare of that child should the child have needs that he can contribute to?

The consequences of this argument, if adopted, is that sperm donors would not be guaranteed anonymity nor freedom from financial responsibility for the children they conceive. This may well mean that less people are willing to donate sperm but if that means only men who are prepared to take some responsibilities for their reproductive decisions then that may be better.

34 Supra n 32 at 143.

35 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 640.

36 Child Support (Assessment) Act 1983 (Cth).

37 B v J [1996] FamCA 124; (1996) 21 FamLR 186, 195; Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 648.

Holding all biological fathers at least to some degree responsible for the children they help create would guarantee that men do not see sperm donation as a way to have ‘... an informal relationship with biological children without having legal [or financial] responsibility for them.’³⁸ As we have seen, under current law, a man can donate sperm using an artificial conception procedure with the clear intention that he will be involved in the child’s life, perhaps as an ‘uncle’ or even identified as the child’s father. That man may establish a relationship with the child that can be enforced with parenting orders,³⁹ but he is absolved from any financial obligation to maintain the child regardless of the child’s needs.⁴⁰

We would consider that a man who wanted to father as many children as possible, for whatever reason, as somewhat morally questionable, regardless of how children were conceived. The current law may well encourage men to show some degree of sexual responsibility, knowing that if their sexual partners become pregnant, that may have considerable financial and emotional consequences. We require no such responsibility from sperm donors who may donate many times, to create many children. Their motivation may be generous (as may be the man who agrees to have sex with a friend so that she may fall pregnant) or it may be a questionable desire to see his genes reproduced as much as he can. One sperm donor on ‘Sperm Donors Worldwide’ said:

I have done this before and am a regular donor at some hospitals and clinics in Melbourne, as well as some private encounters-all children are healthy and adorable...⁴¹

We would not condone as morally worthy a man who could say he had six children to six different mothers, yet here is a man quoting the number of children he has produced as a testimonial.

To allow men to knowingly contribute to the birth of children, with no accountability and with no obligation to take some responsibility for the welfare of the children they produce is, surely, more ‘fundamentally wrong’ than suggesting that they may have a responsibility to the children they consciously, and voluntarily agreed to produce, should the need arise?

38 Supra n 31 at 77.

39 As in Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579.

40 W v G (1996) 20 FamLR 49; Tobin v Tobin [1999] FamCA 446; (1999) 24 FamLR 635.

41 <http://www.sperm-donors-worldwide.com/free_sperm_donations_australia.htm> at 12

April 2005, 8.

Social fathers and parenting plans

The Hon Justice Alistair Nicholson, former Chief Judge of the Family Court said ‘In my view, it is not procreation that defines a family relationship, it is the commitment and the financial and emotional interdependence of family members.’⁴² Further:

Social science research has suggested that parenthood is a psychological relationship that should be understood from the perspective of the child, and that while biology is important psychological or social attachments are of at least equal, it not more significance.⁴³

Accordingly recognising that the man who voluntarily and willingly takes on the role of ‘father’ and who forms a father/child relationship with the child that he, along with the child’s mother sought to have, gives effect to what we expect is the intention of everyone involved and reinforces the central place of the heterosexual nuclear family.

Currently the law does not allow parents of children to determine their rights and responsibilities by way of contract.

The notion that a party can by agreement contract out of a statutory right to maintenance has been rejected by High Court doctrine in the context of contracts to exclude statutory rights to maintenance on divorce in Brooks v Burns Philp Trustee Co Ltd and in that of agreements to forego testators’ family provision in Lieberman v Morris. Public policy is opposed to the surrender of such rights especially where the beneficiary becomes a charge on the public purse.⁴⁴

In B v J Fogarty J said:

... it is, in my view, untenable to suggest that an otherwise liable parent may contract out of liability for child support, or that an otherwise entitled parent may waive a “right” to assistance for support of his or her child.... as a matter of logic it would appear to apply equally to cases where a child is born as a result of intercourse, in the context of an agreement that one of the parties would bear no financial responsibility. The considerations said to give rise to an estoppel would exist regardless of the method of conception. Such agreements or representations would not be enforced in Australia.⁴⁵

42 Alastair Nicholson ‘The Changing Concept of Family: The Significance of Recognition and Protection’ (1996) 3 Murdoch University Electronic Journal of Law [54] <http://www. murdoch.edu.au/elaw/issues/v3n3/nicholso.html> at 18 April 2005.

43 Fiona Kelly ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court – the

Case of Re Patrick’ (2002) 16 AustralianJFamL 204, 206.

44 Dorothy Kovacs ‘The AID Child and the Alternative Family: Who pays? (or Mater semper certa est – That’s easy for you to say!) (1997) 11 AustralianJFamL 141, 157.

45 Re B and J [1996] FamCA 124; (1996) 21 FamLR 186

In Re Patrick Guest J said:

An agreement absolving a father from the obligation to pay maintenance for a child would not be enforceable either directly or by way of estoppel. Nor would an agreement absolving the father from any other aspect of parental responsibility. Equally, a written agreement which provided for a donor to have frequent contact with a child could not prevail over a finding by the Court, in a given case, that contact was not in the best interests of the particular child.⁴⁶

Notwithstanding these rules, the decision in Re Patrick did at least in part, depend on a finding that the parties had agreed that the sperm donor would have ongoing contact with Patrick Fiona Kelly in her analysis of this case made the point that:

In making his decision about contact Guest J gave considerable weight to the agreement between the parties. While he stated that the agreement was not binding on him ... his decision to award contact rested heavily on his finding that the donor father had donated his genetic material upon an understanding that he was to have a role in the life of any prospective child.⁴⁷

In W v G the court could not order the sperm donor to pay child support for the benefit of the child as he was not, legally, the child’s father. The court did however, order the mother’s lesbian partner to pay child support on the basis that it would be inequitable to allow her to avoid the obligation given that she had encouraged the mother to conceive the child and had promised that she would act as a co-parent and would contribute to the raising of the child. The court was specifically giving effect to the promise between the parties.⁴⁸

The model for resolving parenting disputes in the Family Court is to encourage parents to make their own agreements as to parenting and child support⁴⁹ though agreements may be varied by the Court where that is required in the child’s best interests.⁵⁰

Dorothy Kovacs argues that:

... it is too late in 1996 [and more so in 2005] to say that it is against public policy to absolve a donor from the obligation for child support, when for more than a decade state laws have provided that a donor has no rights and no obligations in respect of a child born as a result of donation. Accordingly the argument may be put that a contract between consenting adults whereby

46 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 648.

47 Fiona Kelly ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court – the

Case of Re Patrick’ (2002) 16 AustralianJFamL 204, 211.

48 (1996) 20 FamLR 49.

49 Family Law Act 1975 (Cth) ss 63B and 63CAA.

50 Family Law Act 1975 (Cth) s 63F.

the man agrees to provide semen on condition that the woman will keep him safe from child support obligations should not in an appropriate case be seen as offending public policy.⁵¹

In 2005 it would be appropriate to allow clear statements of intention and express contracts to determine the legal status of family relationships. The importance of agreements has already be recognised in W v G⁵² and, at least in part, in Re Patrick. In other cases, the court’s inability to give clear effect to people’s clear intention has been the subject of criticism.⁵³

Kelly argues that ‘child support liability in gay and lesbian families should be based on a social parenting model that reflects the child’s actual family structure rather than biological ties.’⁵⁴ Arguably the same conclusion should also apply to heterosexual families. In In the matter of an application pursuant to the Births Deaths and Marriages Registration Act3⁵⁵ and in PJ v DOCS⁵⁶ the courts were faced with a-typical heterosexual families where children were born via a surrogacy arrangement. Here again the court could not determine who was the child’s parents using a ‘model that reflect[ed] the child’s actual family structure rather than biological ties.’ Here legal rules surrounding conception and parenting presumptions meant that the men, who were both the social and biological fathers were not at law the fathers of their children. The legal parents in the first case where the husband’s brother and his wife; and in the second case the mother’s own parents. If parenting responsibilities were based on ‘a social parenting model that reflects the child’s actual family structure rather than biological ties’⁵⁷ then the two couples, who wanted to have a child and who were concerned with raising the child in an otherwise traditional heterosexual family would have been for all purposes, the parents of the children they were raising.

If we allow families to define their own relationships then parents, social and biological, could negotiate their degree of involvement in the lives of their families. It would allow parents, regardless of how their child is conceived, to determine how they will parent the resulting child – even if that agreement is that one party (usually the father) will have no rights or obligations.

51 Supra n 44 at 159.

52 W v G (1996) 20 FamLR 49.

53 PJ v DOCS [1999] NSWSC 340 (Unreported, Windeyer J, 6 April 1999); In the matter of an application pursuant to the Births Deaths and Marriages Registration Act 1997 (2000)

[2000] ACTSC 39; 26 FamLR 234.

54 Supra n 47 at 225.

55 [2000] ACTSC 39; (2000) 26 FamLR 234.

56 [1999] NSWSC 340 (Unreported, Windeyer J, 6 April 1999).

57 Supra n. 54.

To return to the example of Neville he has never intended to be a ‘father’ or have any involvement in the lives of the children ‘B’ and ‘C’. He is not the father of ‘B’ as the conception was a result of artificial insemination but he is the father of ‘C’ even though he did not intend to be a father. Further his legal obligation to ‘C’ may mean an enforced relationship with C’s mother even if neither of them desires that relationship. Neville may seek parenting orders and C’s mother may seek, and may be forced to seek under Social Security provisions, child support from Neville.

Again, Kelly argues that in homo-nuclear families, to require the biological father to pay child support ‘...would undermine the independence and boundaries of the homo-nuclear family unit.’⁵⁸ This is not only true for homo- nuclear families. Where the law insists that there is a relationship between biological parents and their children, it undermines the self selected boundaries of the family, whether homo-nuclear, hetero-nuclear or single parent. If we allow parties to negotiate their own family arrangements, Neville, and his casual sexual partner, could agree that he has no obligations and she need not be forced to have an ongoing relationship with him, that neither of them want.

Some may find this consequence ‘fundamentally wrong’ as it would allow Neville, having engaged in an act of sexual intercourse with the inherent risk that a pregnancy will result, to avoid any responsibility for his actions. As we have already seen however, Neville has no responsibility, at least no financial responsibility, with respect to A, B or D even though in each case it was his intention that a child would be conceived and born. Is there any moral difference in these cases? In A v C⁵⁹

... Ormrod LJ described the relationship between an AID father and the child in a ... colloquial way when he said there was “some difference, but not much, between this case and that of a man who gets a girl pregnant in a casual act of intercourse on the way home from the pub one night.”⁶⁰

If it is true that there is no significant difference between a sperm donor and a casual sexual partner, then the legal consequences for both should be the same. Either the father of a child conceived through an act of sexual intercourse may be excused from obligations to the child or the biological father should have paternal obligations regardless of the method of conception. If we allow Neville to be excused from any responsibility for his decision to be the biological father of A, B and D, then there is an equal, if not stronger case, to excuse him from responsibility toward C where he simply made a decision to have sex, not to be a father. On the other hand, Neville is the genetic father of

58 Supra n 47 at 226.

59 [1985] FLR 446.

60 Supra n 32 at 137.

all the children, so if we refuse to allow Neville to escape his responsibility for child C, on the basis that he knowingly engaged in an act of sexual intercourse and must be responsible for the foreseeable but unintended consequences of his actions, then he should be at least equally responsible in those cases where the birth of a child was not only foreseen it was intended.

Finally to give priority to the biological nature of fatherhood, ahead of the social, can lead to disturbing results. In Magill v Magill⁶¹ Mr Magill attempted to sue Mrs Magill in deceit when he discovered that he was not the biological father of 2 of her 3 children. The children at the time of the action were 13 and 14 years old and presumably Mr Magill, their social father, had developed an emotional relationship with the children as well as paying child support for them since his separation from his wife 3 years earlier. Notwithstanding this, his evidence was

... that it was his belief that he was the [biological] father that caused him to provide the financial and emotional support for the children ... [and] had he known their paternity he would not have maintained the two children...⁶²

We do not know what sort of relationship there was between Mr Magill and

‘his’ children, but there is something repugnant in thinking that a person who has been involved in children’s lives, and who is, to them, their ‘father’ can say that he has no further obligation to them simply because of their biological paternity. Whether that consequence is desired by an estranged wife who wants to exclude her former husband from the life of the children, or an estranged husband who suddenly finds he can free himself of family demands, to sever an emotional relationship on such grounds cannot be in the child’s best interests. Equally if a social father has encouraged a certain lifestyle, eg funding a private school education and/or expensive hobbies for

‘his’ children, to suddenly leave them destitute because you discover they are not ‘your’ children is to deny the lived experiences of the family and the best interests of the children concerned. Whilst it is possible to have some sympathy for a man who has been knowingly deceived by his partner, it reflects more on the husband/wife relationship than the father/child relationship. If we are offended by Mr Magill’s claim that he only offered ‘financial and emotional support’ because of a belief in a biological relationship, then that offence is because of a belief that it is the emotional relationships and not biology that is the important aspect of ‘being’ a father.

61 [2005] VSCA 51 (Unreported, Ormiston, Callaway and Eames JJA, 17 March 2005).

62 Ibid, 82.

v. mUSt we chOOSe?

Perhaps we do not need to make a choice at all. Guest J, in Re Patrick said:

Children conceived via artificial donor insemination may have only two mothers, others ... may have two mothers and a father, and others, may have two mothers and two fathers. In a rare number of cases a child may have only two fathers.⁶³

He argued that:

... consideration should be given to review the definition of ‘parent’ ... to take into account that there are varying arrangements between donors and prospective mothers, and that donors such as the father in these proceedings may not only consider themselves a ‘parent’, but may also be considered by the recipient of the genetic material to be a parent.⁶⁴

On this view, we can and should recognise that both the biological and social father is a ‘father’ but with differing degrees of involvement with, and responsibility for, the child. The law and the courts need only be involved when there is disagreement.

It would be possible, with legislative changes, to acknowledge that both biological and social parents have obligations to children that they conceive or voluntarily take responsibility for. This could be done first by retaining the presumption that a man who consents to his wife becoming pregnant via artificial insemination is ‘a’ father, but so, is the sperm donor.

Equally we could acknowledge that a man who has been a social father to a child has rights and responsibilities with respect to that child. That is already done with respect to parenting orders. As we have seen the donor in Re Patrick⁶⁵ could obtain a parenting order, not because he was the child’s father but because he had an ongoing relationship with the child and it was, in the Court’s opinion, in the child’s best interests for that relationship to continue. The court is not limited, when it comes to parenting orders, to make orders only in favour of the biological father, but can make orders for the benefit of anyone who can show they are ‘concerned with the care, welfare or development of the child’.⁶⁶ The donor in Re Patrick⁶⁷ could not, however, be liable to pay child support.

63 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 651.

64 Ibid, 647-648.

65 [2002] FamCA 193; (2002) 28 FamLR 579.

66 Family Law Act 1975 (Cth) s 65C.

67 [2002] FamCA 193; (2002) 28 FamLR 579.

In the area of child support, recognising that it is the man who plays the role of ‘father’ who should be regarded as the legal father is not foreign to the law. There is an exception to the rule that only parents⁶⁸ can be required to pay child support.⁶⁹ A step-parent, or for our purposes, a step-father (a man who is not the father of the child but who is, or was married to a child’s mother and who ‘treats, or at any time during the marriage treated, the child as a member of the family formed with the [mother]’⁷⁰) may be liable to pay child support.⁷¹ When determining whether or not a step-parent should pay child support, the Court must have regard, inter alia, to the ‘relationship that has existed between the step-parent’ and the child.⁷²

To bring parental orders into line with child support orders it would be possible to give the court the power to make orders for child support against anyone who had taken on a parenting role, not just step-fathers. When exercising that jurisdiction the court could be required to take into account the factors currently considered when deciding whether a step parent should pay child support, these would include:

1. the relationship that has existed between the step-parent and the child;

and

2. the arrangements that have existed for the maintenance of the child; and

3. any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.⁷³

Should it be felt that a jurisdiction to order anyone who is ‘concerned with the care, welfare or development of the child’⁷⁴ to pay child support is too wide, a more narrow jurisdiction could be given. In Tobin v Tobin⁷⁵ counsel argued that the Court had the power to order any person who obtained a parenting order to pay child support. The Court found that it did not have that power but it would be possible to grant that power via legislative changes. If the court did have that power any person who was not a child’s biological father who

68 That is the biological parent as well as a man who has legally adopted a child (Family Law Act 1975 (Cth) s 60D) and the husband of a woman who, with his consent, conceives via artificial insemination using donor sperm (Family Law Act 1975 (Cth) s 60H.)

69 Tobin v Tobin [1999] FamCA 446; (1999) 24 FamLR 635, 648.

70 Family Law Act 1975 (Cth) s 60D.

71 Family Law Act 1975 (Cth) s 66M.

72 Family Law Act 1975 (Cth) s 66M(3)(c).

73 Family Law Act 1975 (Cth) s 66M.

74 Family Law Act 1975 (Cth) s 65C.

75 (1999) 24 FamLR 6356.

sought parenting orders would also know that with parenting ‘rights’ come parenting responsibilities and the class of people who could be ordered to pay child support would be clearly defined. In terms of ‘fathers’ that would be:

1. The biological father;

2. The adopting father;⁷⁶

3. A man who consents to his wife becoming pregnant via artificial insemination; and

4. Any man who obtains a parenting order.

With these changes to the jurisdiction of the Family Court, it would be possible for the court to make both parenting and child support orders that took into account the actual lived experiences of children, and their parents, however conceived.

vi. cOncLUSiOn

This paper has argued that when it comes to fatherhood, the choices made by the law are inappropriate. If necessary, it is reasonable to hold that paternal rights and responsibilities should attach to either the biological father or the social father. It has been shown, however that the law does not allow that choice to be made. ‘Fatherhood’ is based on whether or not the child is conceived via an act of sexual intercourse or artificial conception procedures. This choice could be acceptable if all families fitted the heterosexual model, with mother, social father and anonymous sperm donor however it is clear that people do not always fit the mould set out for them, and so in many cases the law has been unable to give effect to the lived experiences, desires and intentions of the parties involved.

If a choice has to be made, that is if we cannot accept that children can have more than two parents of whatever gender, then we should make the choice on either biological or social grounds. If we chose biological, then all biological fathers must accept responsibility for the children conceived using their sperm. Sperm donors, like sexual partners, would have standing to seek parenting orders but would also have financial obligations to their children. As in any legal matter the extent of the responsibilities is not set in

76 It is possible to make a strong argument that where an adoption occurs the biological parent is excluded from the life of the child and is therefore no longer liable to pay child order of adoption is intended to replace the biological relationship and is an court order that takes into account the child’s best interests, but developing that argument is beyond the scope of this paper.

advance; if the donor wants nothing to do with the child and the social parents are happy with that, then so be it. It is only if the parties cannot agree on the parenting arrangements, or the child is in need of financial support, that the various legal authorities such as the Family Court and/or the Child Support Agency would be involved.

If we chose the social father, then it is the lived experience that is relevant. The man who takes on the role of ‘father’, just as the woman who takes on the role of co-parent in a lesbian family,⁷⁷ should be accountable, and take responsibility, for the children he has ‘fathered’, regardless of their biological background. The promise to parent, and its impact upon the co-parent, and more importantly the children, should be paramount.

The alternative is to make no choice at all, to recognise that children can have many parents, with differing relationships with them all and, in the event of disputes, to determine where different responsibilities and obligations lie on a case by case basis looking at the equity of the particular situation and the best interests of the child.

Whatever of these three options is the best, the problem is that none of them are part of the current law. The current law says that one’s paternal responsibilities are dependant upon where one ejaculates, and that makes no sense at all.

77 W v G (1996) 20 FamLR 49.