Understanding how parentage is recognised under federal and state law is essential when considering known donor arrangements, as these laws shape the rights and responsibilities of everyone involved.
Informal donations can be particularly legally complex, as the protections that apply in formal fertility clinics do not always extend to informal arrangements, leaving both donors and recipients exposed to uncertainty about parentage and ongoing obligations.
Who is a parent?
Australian law does not clearly define who is a legal parent, which can create uncertainty for families using known donors. Instead, parentage is shaped by a mix of federal and state laws, along with court decisions that interpret these laws case by case.
People who plan a child together using donor sperm are usually recognised as the child’s legal parents, while the donor is not, especially when conception occurs in a fertility clinic. However, only two people can be recognised as a child’s legal parents.
Federal law does not clearly address families with more than two parents, single parents by choice, or donations that occur outside of fertility clinics. Being named on a birth certificate creates a strong presumption of parental responsibility. Even so, known donors and others involved in a child’s life can apply to the court for parenting orders, which the court uses to determine the parenting arrangements for a child.
Some state laws, such as in Victoria, offer more clarity, but mainly for donations that occur within a clinic. Court cases show that donors may be treated as parents where their actions, intentions, and ongoing role in the child’s life support this, and where it is in the child’s best interests.
In this uncertain legal landscape, donor agreements are a practical way for both recipients and known donors to set clear expectations, reduce conflict, and protect everyone involved.
Parts of the law
Federal law
Parentage is established within the Family Law Act 1975 (Cth). Section 60H of this legislation determines who is a parent with regards to artificial conception, including artificial insemination and assisted reproductive treatment.
According to Section 60H, if a woman gives birth through artificial conception, with the consent of the other intended parent, they are both legally recognised as the donor-conceived child’s parents regardless of biology, gender identity, or sexual orientation. In such cases, a third-party sperm donor (known or unknown) is not considered the legal parent.
It is presumed that the pregnant person is a woman with a spouse, de facto partner, or another person who is the other intended parent.
The legislation does not provide an exhaustive list of who may be recognised as a parent. For example, it does not explicitly mention alternative family structures, such as single-parent families or more than two-parent families.
Donors within fertility clinics may be clearly identified as a donor rather than parent, however, there is less clarity when insemination occurs outside of clinics (i.e. self-insemination). This means that there is uncertainty around how this law may beapplied when disputes are brought to the Family Court.
In addition to Section 60H, the Family Law Act also sets out who in a child’s life may have parental responsibility (‘parentage’).
One of the most common presumptions of parentage, particularly in cases of artificial conception, arises from registration of birth. Typically, if a person is listed on a child’s birth certificate, they will be presumed to have parental responsibility and have a legal right to make important decisions about the child’s life.
If someone is not listed on the birth certificate, they can obtain parental responsibility by applying for parenting orders through the Federal Circuit and Family Court of Australia. Under the Family Law Act, anyone who is concerned about the care, welfare, and development of a child may apply for parenting orders.
These parenting orders are legal decisions made by the court and cover various matters, including where the child lives, who they spend time with, how parental responsibility is shared, communication with others, child maintenance, and other aspects relating to the child’s wellbeing.
This means that known donors may apply for parenting orders, but this could also include others such as grandparents, extended family members, or the donor’s family.
While Section 60H may exclude donors from being a legal parent, in practice a donor could seek orders about the child’s living arrangements or contact. This shows why it is important for all involved to clearly understand and agree on who will be listed as parents on the birth certificate as the law currently allows only two people to be recognised this way.
State legislation
Recognising the ambiguity within federal legislation, some state governments have attempted to remove the legal uncertainty around parentage.
In Victoria, the law expands the definition of a parent under the Assisted Reproductive Treatment Act 2008 (Vic) and the Status of the Children Act 1974 (Vic).
Unlike federal legislation, Victorian state law specifies that single women may be recognised as the only legal parent, excluding donors from parental responsibility.
It also presumes that a woman’s female partner is presumed to be the other intended parent if they have consented to assisted reproductive treatment or artificial insemination.
However, these definitions apply only when insemination occurs within a fertility clinic. Self-insemination is not explicitly included in these laws.
Case law
When disputes arise over parenting responsibility, the Federal Circuit and Family Court of Australia interprets the law according to the specific case.
As legislation on legal parentage is often ambiguous, the court provides clarity when novel circumstances emerge.
In such cases, the court decides how the law should be applied, and its decisions establish precedents that guide the resolution of future parenting matters.
One landmark case was Masson v Parsons & Ors [2019] HCA 21 which showed how courts interpret and apply these laws in real-life situations.
The case involved Robert Masson, a known donor who provided sperm to Susan Parsons and child ‘B’ was born. At the time of conception and birth, Parsons was single, and Masson was named on the birth certificate as the second parent.
Masson was involved in B’s life, providing financial support and was involved in B’s health, education, and general welfare. Later, Parsons entered a de facto relationship with Margaret, and the two women conceived a second child (child ‘C’) using a different donor. Masson spent time with both children on a regular basis.
When the Parsons planned to relocate to New Zealand with both children, Masson sought to stop the relocation by being recognised as B’s legal parent. The Parsons argued that a child born via donor insemination to a single woman should be treated similarly under Section 60H as a child born to a woman with a partner.
The case was heard at the Family Court and the Full Court of the Family Court, before being appealed to the High Court. The High Court needed to decide whether Masson was a legal parent of B under Australian law. That is, whether a sperm donor that intends to be a parent is recognised, or if the law excludes Masson from being a parent due to the child being born from artificial conception.
The High Court determined that while Section 60H of the Family Law Act provides a legal definition of parentage, it is not exhaustive. Therefore, someone can still qualify as a ‘parent’ under the ordinary meaning of the term, depending on the circumstances.
The court’s decision was based on several factors which demonstrated Masson’s intention to parent. This included that he was named on the birth certificate, provided care and financial support, and B identified him as her father. The court decided it was implied at the time of the donation that Masson intended to parent B.
Another case that demonstrates the complexities of family formation and the role of donor agreements under Australian family law is Martine & Carmona [2024] FedcFamC2F 800.
The case involved Ms Martine and Ms Carmona, a same-sex couple who began their relationship in 2007. They decided to have a child together through donor conception using both donor eggs and sperm.
In 2009, they met Mr Hooper who agreed to be the sperm donor. Around this time, Ms Martine, Ms Carmona, and Mr Hooper drafted an agreement titled ‘Parenting Issues’. The 10th and final version of the document stated that “the mums will be the primary care parents, and the dad will be involved with the child but in a secondary role.” The agreement also set out a schedule for Mr Hooper’s contact with the child, including overnight stays from six months of age and alternate weekend time from the age of five. This document was never finalised or signed.
In 2014, Ms Martine gave birth to the child (known as ‘X’). In line with the agreement, Mr Hooper met X at his birth and maintained regular involvement, including weekly visits and later overnight stays. Following the relationship breakdown between Ms Martine and Ms Carmona, disputes arose regarding X’s care, medical decisions, education, and Mr Hooper’s ongoing role.
A series of legal proceedings between 2019 and 2023 occurred, with the court needing to determine if and how parental responsibility was to be shared among the three individuals.
In court documents Ms Martine consistently referred to Mr Hooper as a ‘sperm donor’, however, the court recognised that the child referred to him as ‘Daddy’. Expert reports consistently described Mr Hooper as a balanced, insightful, and child-focused figure and recommended the court consider awarding him sole parental responsibility.
In its final decision, the Federal Circuit and Family Court of Australia considered what would be in the child’s best interest under Sections 60B and 60CC of the Family Law Act. It also examined Section 65C, which allows a person concerned with a child’s care, welfare, and development to apply for parenting orders.
The court found that to describe Mr Hooper merely as a ‘sperm donor’ would be to ignore that “Mr Hooper is indeed in practical terms a parent of X within the ordinary meaning of the word.” While the written agreement was not signed, the court accepted that it reflected the shared intentions of the parties, and that Mr Hooper had provided continuous care and emotional support to X since birth.
The court determined it was in X’s best interest to maintain meaningful relationships with all three parents. Ms Carmona and Mr Hooper were awarded shared parental responsibility, while living arrangements were divided between all three.
Why this matters for LGBTIQ+ families
These court decisions do not mean that all donors who intend to parent will be recognised as a legal parent. Under Australian law, parenting is not defined solely by biology or legal titles, but rather the circumstances of each case and the best interest of the child.
Both cases demonstrate that intent and conduct was used to determine that the donor was not ‘just’ a sperm donor and that it was in the best interest of the children for the donors to maintain parental responsibility.
Within the current legal landscape, when disputes arise within families that do not reflect the nuclear family represented within the legislated definitions, courts consider a range of factors when deciding parental responsibility.
A donor agreement is a proactive step that LGBTIQ+ families using known donors can take to navigate the legal and practical aspects of starting their family and avoid misunderstandings or conflicts.
This content was adapted from a discussion paper by Better Pride and the Centre for Better Relationships. To read the paper in full, click here.