There’s a recent story from an Australian newspaper that raises (for me anyway) some interesting questions. There’s a slightly expanded version of the story here, too. But still, I feel like the facts are pretty threadbare. Some of these are simply questions about Australian law–which maybe someone from Australia could answer. But there are also larger issues here.
A lesbian couple wanted to have a child. An identified man provided sperm so that they could do that. I cannot quite tell whether he was someone they knew in passing or someone they knew well or someone they didn’t know at all.
In any event, the three people entered into some form of agreement about the roles each would play. Alas, it does seem clear that they are not (and perhaps never were) clear about exactly what those roles were to be. But in any event, when the child was born, the two women gave the child the man’s last name and listed him as “father” on the birth certificate.
The problem is not, apparently, that the women object to having the man play a role in their child’s life. The devil is, as is often the case, in the details. How much time does he get to spend with the child? Overnight or not? And the women’s contention is that he isn’t mature enough to assume major responsibilities for the child. The court, apparently, disagreed and so there’s a schedule in place which provides for gradually increasing visitation.
First let me ponder the Australian law stuff. It seems that the women are the legal parents of the child. The man is not a legal parent, although he is acknowledged to be the genetic father. Now in the US, we have a pretty strong version of parental rights. If you had a unified pair of legal parents objecting to visitation by a third party, there’s almost no doubt that the legal parents would prevail. That, indeed, is one of the reasons why having the status of legal parent is so very very important. From an US perspective, saying that 1) he is not a legal parent but 2) he has rights to visit the child over the objections of the legal parents is really quite remarkable.
But it appears that Australian law is different. The determinations of legal parents–legal parents who are unified in their views–can be overridden by a judge–as the judge has done here. The non-parent (and by that I mean non-legal parent) can be granted visitation. Does this in fact mean that Australian law has a weaker version of parental rights? Or is this particular third-party in a unique position, because even if he isn’t a legal parent, he is a genetic parent. In any event, what factors is the judge supposed to consider in deciding what sort of visitation the third-party can have? And what does it mean to say that the two women have sole parental responsibility for the child? Where are the lines ultimately drawn?
Since I don’t know the answers to the Australian law questions, I cannot really address my broader question: Does this case offer some sort of possible model for how a child can have legal parents and also a legally significant-non-parent-but-recognized-sperm donor? It’s hard to say, because I cannot tell exactly what distinguishes the rights of the sperm donor here from the rights legal parents have. He has a right to see the child. He has a right to attend school events. But he does not have parental responsibility–whatever that is.
Finally, let me talk about why this is a cautionary tale. Consider the position that the women here are left it. They are legal parents and yet they must share custody with another person–someone who they do not think a suitable overnight custodian. Their autonomy as parents is clearly and significantly diminished. And that is because they used a known individual as sperm donor. Had they instead chosen an anonymous (at least for the early part of the child’s life donor) they wouldn’t be in this position.
Now I’m in no position to second guess them. I don’t know what went into their decision and I don’t know where things got off track (as far as they are concerned.) But think about how this story shapes advice you might give to friends or, if you are a lawyer, clients. Suppose a lesbian couple you knew said they were considering using a known donor? With this case in mind, what would you tell them? It seems to me I’d say “be very careful about that. You’ll run the risk that some judge will substitute her/his judgment for yours about what the appropriate role of that person is.” Now maybe you can make a better–a more clear–agreement than these people did. Maybe you could choose a more responsible person as your donor. But if you wanted to be really safe, you’d choose and unknown or anonymous donor.
Now I understand that this choice has costs. Indeed, to me that is the heart of the matter. I am increasingly persuaded that there are good reasons why we should encourage people to use known/knowable donors. But to do that, we need to be offer people safety and predictability. If we cannot ensure those two things, than many people will not elect the known donor option. And this case–whatever else is it–is hardly a example of a safe/predictable outcome. Indeed, it is a cautionary tale.