Many people assume that a sperm donor cannot be a legal parent. But under Australian law, that isn’t always true. In certain circumstances, a sperm donor can be recognised as a parent — with all the rights and responsibilities that status carries.
This area of law is nuanced, shaped by the Family Law Act 1975 (Cth) and refined by landmark court decisions. For anyone involved in donor conception — whether as a donor, recipient, or co-parent — it’s important to understand how parentage is determined and what that means in practice.
How the law determines parentage
Parentage in Australia is not defined solely by genetics. Instead, the courts look at intention, consent, and conduct. The relevant provisions are sections 60H and 60HB of the Family Law Act, which deal with parentage in cases of assisted reproduction and surrogacy.
Under these sections:
If a woman conceives through an artificial conception procedure with the consent of her partner, that partner — whether male or female — is presumed to be the child’s parent.
A sperm donor is ordinarily not a legal parent, unless there is evidence that he and the mother intended to raise the child together.
This principle recognises that family relationships are formed not just through biology, but through the ongoing reality of care, involvement, and commitment.
The case that changed everything: Masson v Parsons
The High Court case of Masson v Parsons [2019] HCA 21 clarified the modern approach to sperm donor parentage in Australia.
In that case, a man donated sperm to a woman he knew personally. He believed they were conceiving the child together and was involved throughout the pregnancy and beyond — attending medical appointments, providing financial support, and maintaining a strong relationship with the child.
When the mother later sought to relocate overseas, the man applied for parenting orders. The question before the High Court was whether he qualified as a “parent” under the Family Law Act.
The Court held that he did.
Although he was a sperm donor, the Court found that he had intended to be a parent and had acted as one. The judges emphasised that the Act does not exhaustively define “parent” and that the term should be interpreted according to ordinary meaning and context.
In short, where a sperm donor takes on the role of a parent — and the facts support that conclusion — the law can recognise him as one.
Intention and conduct matter
After Masson v Parsons, the courts look beyond labels and focus on the substance of the relationship. Relevant factors may include:
Whether there was a clear understanding between the donor and the recipient about the donor’s role;
The donor’s involvement in the pregnancy, birth, and early care of the child;
Whether the donor has had an ongoing parental relationship with the child; and
The extent to which the donor has assumed financial and emotional responsibility.
It’s not the title — “donor” or “father” — that decides the issue. It’s the conduct.
For example, a donor who provides sperm to a fertility clinic anonymously and has no further involvement will not be a parent. But a known donor who helps raise the child, participates in decision-making, or plays a recognised parental role may be.
Donor agreements: helpful, but not determinative
Many people rely on a donor agreement to set out their intentions. These documents are valuable — they can record what everyone expects, whether the donor will have contact, and how future decisions will be made.
However, a donor agreement is not automatically binding on a court. If the donor’s later actions contradict what the agreement says, a judge may decide that the reality of the relationship outweighs the written words.
For example:
If the agreement says the donor will have no parental involvement, but he attends school events, provides financial help, and is referred to as “Dad”, a court may still find he is a parent.
Conversely, if the agreement says the donor will be involved as a co-parent, that document can support his position in future proceedings.
This is why both donors and recipients should obtain independent legal advice before conception. A lawyer experienced in donor conception and family law can ensure that the agreement is carefully drafted, consistent with everyone’s intentions, and supported by practical arrangements that reflect those intentions.
What happens if a sperm donor is recognised as a parent?
If a sperm donor is found to be a legal parent, that recognition carries significant consequences.
1. Parental responsibility – The donor may share decision-making power for major issues such as the child’s education, health, and religion.
2. Child support – The donor may be required to pay child support under the Child Support (Assessment) Act 1989 (Cth).
3. Inheritance – The child may have inheritance rights from the donor’s estate and vice versa under succession law.
4. Citizenship and registration – Parentage findings can affect birth certificates, passport applications, and citizenship status.
These legal outcomes can impact not only the parents but also the child’s long-term welfare and identity.
Why this matters
As modern families take many forms, the law has had to evolve. Co-parenting arrangements, same-sex families, and known-donor conceptions all blur the traditional boundaries of parenthood.
The courts now focus on the real substance of family life: who is actually caring for and making decisions about the child.
That approach creates flexibility — but it also introduces uncertainty. Without clear legal advice and documentation, well-intentioned arrangements can lead to disputes about parentage, responsibility, and child support years later.
Steps to take before conception
Before proceeding with a donor conception arrangement, it’s sensible to:
Obtain independent family law advice for each party;
Draft a comprehensive donor agreement that reflects everyone’s intentions;
Attend counselling to explore the emotional and relational implications; and
Understand the legal framework under the Family Law Act and any relevant state laws.
Each arrangement is unique. Legal advice tailored to your situation can clarify whether a sperm donor is likely to be viewed as a parent — and what steps you can take to protect everyone involved.
Key takeaway
A sperm donor can be a legal parent in Australia if the facts show that he intended to be — and acted as — a parent. Biology alone is not decisive. The courts will consider the intention behind the conception, the nature of the relationship, and the donor’s ongoing role in the child’s life.
Because the consequences can be far-reaching — from parental responsibility to financial support and inheritance — anyone considering donor conception should obtain specialist legal advice before proceeding.
Need expert guidance?
At Thornton + King, our family law specialists regularly advise clients on sperm donor parentage, donor agreements, and parenting arrangements under the Family Law Act. We can help you document your intentions clearly, understand your legal position, and safeguard everyone’s rights — including the child’s best interests. To speak to a legal expert in donor agreements, give us a call or submit an enquiry now.
