A recent family law case has required a sperm donor, who donated sperm via vaginal intercourse to a lesbian couple, to pay child support for the couple's child, even though it was agreed between the parties that he would not be recognised as the child's parent or be required to provide financial support.

In the case of ND and BM [2003] FamCA 469, BM (the mother) told ND (the father) that she wanted to have a child with her female partner (LP), and was looking for a sperm donor. ND (who knew the mother and had a previous relationship with her) volunteered to be the donor. At meetings between the mother, her female partner and the father, it was agreed that the father would not have any legal rights to the child and that the child would not be advised that ND was the father. ND agreed that he would not seek any parental role with the child nor would he be responsible to financially support the child.

Conception took place via vaginal intercourse and, on 22 January 1999, the child was born. Two weeks after the birth of the child, ND signed a handwritten agreement at the request of BM and LP that he would have no legal rights to the child and that, in the event of separation, LP would support the child. ND saw the child on three occasions from May 1999.

The mother brought Magistrates' Court proceedings seeking a declaration that ND was the father of the child and liable to pay child support. The Magistrate agreed that ND was the "parent" of the child for the purposes of section 5 of the Child Support (Assessment) Act 1989.

In denying the father leave to appeal this decision, Justice Kay of the Family Court upheld the father's responsibilities under the Act, stating that the definition of "parent" was an expansive one and not an inclusive one. In this case, the biological parents are to be treated as the parents of the child unless circumstances altered this position. Section 5 outlines two circumstances where the rights of biological parents can be altered; namely with adopted children or children born through artificial conception procedures. In this case, as conception occurred "in the usual and customary manner" (ie. vaginal intercourse), the court considered that it did not constitute artificial insemination.

The Family court also considered the effect of the written agreement entered into between the parties soon after the birth of the child and concluded that parental responsibility, including the financial support of children, is a matter of great public interest and cannot be waived by the parties. While making no finding on the issue, the court did suggest that the father could have an equitable remedy against the mother's female partner (LP) on the basis that she agreed she would support the child. A previous case where a lesbian partner was held liable for damages in a similar situation was referred to.

This case highlights the responsibility of parenting and the dangers associated with 'informal' artificial insemination arrangements. It offers a timely reminder that parenting is a responsibility and not a right.