An Australian woman has lost a Court of Appeal challenge after her name was removed from her child’s birth certificate following revelations that her ex-wife had sex with a sperm donor without her knowledge.
In a custody battle between three adults lasting five years, a landmark ruling saw a male granted custody of a lesbian couple’s child – with a separate welfare hearing granting all three adults involved custody. The ruling was handed down in June by the Federal Circuit and Family Court of Australia which denied the mother’s parental responsibility for the child. The case costed hundreds of thousands of Australian dollars before it’s conclusion this year.
The case centred around a six-year-old child who was conceived and born through an ‘informal conception arrangement’ between two women and a man. Judges heard how the now ex-couple – referred to as P and Q- met a man (F) in a pub after advertising online, the pair said they ‘formed a favourable impression of F’. The meeting led to a sperm donor agreement over the use of artificial insemination.
P contacted F several times, claiming she was ‘upset and depressed’ after two failed attempts to impregnate her, the court heard – leading to P and F having sex three times at her parent’s house behind Q’s back and the third attempt led to another artificial insemination attempt.
P and Q later divorced amid arguments over the care of the six-year-old, leading to P securing a court declaration earlier this year that decreed F was the legal parent of the child. Mrs Justice Gwynneth Knowles dubbed the case a ‘cautionary tale about the consequences of deceit’ and the ‘dangers of informal insemination methods’. She concluded on the balance of probabilities that while Q had not consented to sex between P and F, the method of the child’s conception was ‘impossible to know’.
Under laws that grant the wives or civil partners of women who give birth via artificial insemination Q was removed of the right to parenthood. Q appealed against the decision in a hearing in London but the challenge was later dismissed. Q’s lawyers argued it was P’s responsibility to show the child was not conceived by artificial insemination. P’s legal representatives confirmed that F was the genetic father leading to the court declaring paternity in his favour due to lack of evidence surrounding artificial insemination.
Lord Justice Peter Jackson said Q had not proved the legislation applied. He said the child existed “because P and Q wanted” a baby and F “was at that time no more than a means to an end”, also adding: “It may therefore seem strange that [the child’s] parentage should be determined by the way in which [the child] was conceived, but in this area a line must be drawn somewhere.”
The Herlad Sun reported that the sperm donor met the child when they were born and has continued to spend time with him regularly, which has included overnight stays.
F has always maintained he only ever agreed to donate his sperm if there was a condition that he would always be involved in his child’s life.
