Lesbian Couple Prevails Over Sperm Donor in Australia

Acceptance of gay and lesbian families is increasing around the globe, but one of the associated results is that family law -- already patchy when it comes to issues arising from heterosexuals facing legal questions associated with surrogacy and donors -- is struggling to catch up to present day realities.

The latest development comes from down under, where an Australian lesbian couple prevailed in court over the sperm donor they had turned to for help in conceiving their daughter. The man in question, who was not named in media reports, had been listed on the child's birth certificate as the father. But the biological mother's same-sex life partner asked for her name to be put on the birth certificate instead, in order for the document to serve as proof of her parental relationship to the child.

The BBC reported that the biological father had met the female couple through a newspaper ad that the women had placed looking for a willing male donor. The man had acted as a parent toward the child after her birth, but he and the couple had no formal understanding or contract that gave him the right to be seen, legally, as having parental authority.

The judge in the case said he had "considerable sympathy for" the father, but noted that the man himself had acknowledged that "there was no agreement before the birth that he would be on the register when he agreed to donate his sperm." Under the law, the man had no right to keep his name on the child's birth certificate.

"She's not my daughter as far as the law is concerned," the unnamed, 58-year-old donor lamented. "The laws are totally inadequate; there are no laws to protect people like me." The man added that the ruling meant "a very bad day for fathers," the BBC reported.

The court sided with the biological mother's partner even though the women had gone their separate ways in 2006. The child was born in 2001.

Though a few countries across the globe grant family equality to gays and lesbians, in many places there is no such national marriage-level recognition, if there is any legal recognition at all. In the United States, for example, an anti-gay law from 1996, the Defense of Marriage Act (DOMA), refuses federal recognition and protections for gay and lesbian families even if they are married in one of the six states that currently extend legal parity to gays.

The case of a New Jersey male couple illustrates the risks that same-sex parents sometimes face. In 2009, a court gave the surrogate of their twin daughters, Angela G. Robinson, legal parenthood of the girls even though Robinson had not contributed the egg and had no genetic relationship to the girls.

The girls were conceived in vitro in 2006 using a donated ovum and sperm provided by Sean Hollingsworth, the husband of Ms. Robinson's brother, Donald Robinson Hollingsworth. The fertilized ovum was then implanted in Ms. Robinson, who carried the twin girls to term. The fertilization of the ovum in vitro and subsequent implantation means that Ms. Robinson served as what is called a gestational surrogate, typically a woman with no genetic relationship to the child or children she bears on behalf of others.

The girls were born in October of 2006, and were given into the care of the male couple, who live in Jersey City. But the following March, Ms. Robinson took her brother and his husband to court, claiming she had been forced to serve as the surrogate and seeking custody of the girls.

The court decision cleared the way for Robinson to seek custody of the children. The decision drew on precedent established in a 1988 case involving a traditional surrogate, whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. That case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate's rights as the genetic parent.

"The surrogacy contract is based on principles that are directly contrary to the objectives of our laws," the 1988 ruling said. "It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness."

Superior Court Judge Francis B. Schultz referred to the earlier ruling, posing the question in his decision, "Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not."

Court cases involving gestational surrogates have found against the surrogates in a number of states, though a case in Michigan found for the surrogate. If the New Jersey decision withstands appeal, "that suggests that gestational surrogacy is not as different from traditional surrogacy as we've always interpreted it to be," said Suffolk University Law School professor Charles P. Kindregan, who specializes in reproductive technology law.

When it comes to children of same-sex parents, problems can arise even in countries where same-sex marriages are recognized. A lesbian couple in British Columbia resorted to a male friend's donation of genetic material in order to conceive, for example, but the biological father then attempted to assert parental rights. The couple and the donor ended up in court last year.

Because Canadian law does not permit monetary exchange for sperm donations, all but one of the nation's sperm banks have shut down. That leaves lesbian couples that wish to conceive on their own to find a donor, but when they solicit genetic material from friends, they sometimes find themselves entering a legal quagmire.

In the case of the British Columbian couple, the initial agreement was that the man would relinquish his rights as a father. But when the man began to come around often and to refer to the baby boy as his son, the couple saw it as a breach of contract and took him to court.

The outcome could have lasting repercussions for family law in cases where a child is conceived using donated sperm. The lack of existing law and precedent makes for "murky situations," according to Infertility Network executive director Diane Allen. And, as heterosexual couples who resort to donations or adoption are now finding out, children whose biological parents are not part of their household may have a psychological need -- as well as a practical wish, for health reasons -- to know from whom they are descended. Such children may also wish to form enduring relationships with biological parents.

But as last year's film "The Kids Are Alright" posited, such relationships can be complex and tricky, and same-sex parents -- who often still feel vulnerable, especially in places where they have no rights or where their rights could be subject to ballot initiatives -- can be especially sensitive to anything that seems like a potential threat to the stability of their family lives.