LEGAL issues around families are complex and emotionally charged at the best of times, but when rainbow families come with the added complexities of donors — a biological parent who isn’t necessarily involved in raising a child — it’s a good idea to go to the experts. Looking at the issues, three Sydney-based lawyers who work with rainbow families involving sperm or egg donors fielded some important questions for prospective parents to consider.

Michael Tiyce from Tiyce and Lawyers said that while it’s common for people entering into a donor arrangement to negotiate a “parenting agreement”, such agreements aren’t the be-all and end-all of the relationship.

“These agreements are evidence of intention only and do not bind the parties,” he explained.

“It is important to understand that the Family Court has the ultimate authority with respect to arrangements for children and if not bound by the terms of any agreement.”

Tiyce said the kinds of disputes around donors currently appearing before the court are usually between sperm donors and mothers over arrangements of access to the children.

“These matters can be resolved by either a Court Order or undertaking mediation with an experienced mediator in an attempt to resolve the dispute,” he said.

“Expert legal advice should also be obtained from a community recognised expert.”

Dan Stubbs from the Inner City Legal Centre — a community legal centre that caters to LGBTI people in Sydney — said when it comes to those kinds of disputes, the court looks at, among other things, whether a donor has been actively parenting the child.

“The court will look to see if the donor is someone who has ‘concern for care, welfare or development of the child’ — a donor who has not been actively parenting the child may find it harder to prove this,” Stubbs said.

“It’s important to remember that the court does not consider the rights of parents but the primary consideration is ‘the best interests of the child’.”

Although good intentions are vital, Erin Steiner from Steiner Legal sees what happens when things go wrong.

“I mostly deal with the agreements that result in disputes so I can say from experience it’s an awful situation for everyone involved, particularly the child caught in the middle,” she said.

“If you want to eliminate the chances of ending up in court then yes, you should consider avoiding known donor agreements but at the same time if that were a blanket rule then some people may never have the chance to have children at all.”

It is possible for both parties in a parenting agreement to have changes of heart once the realities of parenthood set in, and while it can make matters complicated, Steiner argued it’s understandable.

“A donor will often go into an agreement believing they don’t want to play a major role in the child’s life and then have a change of heart when they meet the child, which is understandable — unfortunately it’s one of the most common scenarios that result in family court litigation,” she said.

“You can also have a situation where the birth mother and donor had an agreement that the donor will have a parental role in the child’s life and then the birth mother changes her mind. If the parties can’t resolve the dispute themselves then it can only be resolved in the family court.

“Again, it is a very complex and costly process both emotionally and financially for the parties.”

Tiyce argued that when that happens, the courts are equipped to handle the cases.

“The law regarding relationships children have with, for example, their parents, donors or other people with an interest in their welfare is contained within the Family Law Act as interpreted through case law developed over many years,” he said.

“There have been recent developments in this area of the law which establish that the court has all the tools necessary to protect the rights of children involved in disputes.”

Steiner disagreed, arguing the laws favour birth parents over donors.

“I don’t believe the laws are adequate — they assume the donor was not intended to be a parent of the child but the reality is that in many same-sex families’ donors are often intended to take on a parental role,” she said.

“The laws favour the birth parent and their partner over the donor in terms of their status as a parent.

“This means that if the ‘legal’ parent changes their mind about the donor’s role in the child’s life after they are born, the donor will have difficulty getting that time because they are not considered to be a parent. They will need to file proceedings in the family court which is a complex and costly process.”

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