Advances in reproductive technology have made it easier than ever for people to start families in different ways — through sperm or egg donation, surrogacy, and assisted conception. But with these new possibilities come complex legal questions.
A donor agreement is one of the most important documents to consider when you are using, or becoming, a donor. While many people see it as a simple formality or “peace of mind” document, in reality, a donor agreement can determine how the law treats your relationship to the child, your responsibilities, and your future rights.
This article explains what a donor agreement is, what it covers, why it’s so important in Australia, and what can happen if you don’t have one in place.
What is a Donor Agreement?
A donor agreement is a written document that records the intentions of all parties involved in a sperm, egg, or embryo donation arrangement. It’s usually made between:
It sets out each person’s expectations before conception takes place — covering matters such as who will be recognised as the legal parent, what role (if any) the donor will play in the child’s life, and how future decisions about the child’s upbringing, health, or identity will be handled.
While donor agreements are not automatically binding on a court in the same way as parenting orders, they are still a crucial piece of evidence of the parties’ intentions. In any future dispute, a well-drafted donor agreement can help a court understand what everyone agreed to at the outset and why.
Why Are Donor Agreements So Important?
Many people assume that donating sperm or eggs is a simple act of generosity, without legal consequences. However, under Australian family law, a donor may in some circumstances be recognised as a “parent” — even if that was never the intention.
This can have serious implications. It can affect:
Parental responsibility — who has the legal authority to make major decisions about the child’s life.
Child support obligations — whether a donor may be required to pay (or entitled to receive) child support.
Inheritance rights — whether a child or donor could claim against an estate.
Future parenting disputes — whether a donor can apply for time with, or orders about, the child.
The Family Law Act 1975 (Cth) governs parentage in donor conception cases. Section 60H deals specifically with children born as a result of artificial conception procedures. The effect of this section is that — where a woman undergoes a fertility procedure with the consent of her partner — both she and her partner are considered the child’s legal parents. The donor, in that case, is not recognised as a parent.
However, when there is no partner, or where the arrangements fall outside the formal clinic framework, the position can become far less clear. This was highlighted in the landmark High Court case Masson v Parsons [2019] HCA 21, where a known sperm donor was found to be a legal parent because he was actively involved in the child’s life and intended to be so from the outset.
A properly drafted donor agreement helps clarify these intentions from the start, significantly reducing the risk of misunderstanding or litigation later on.
What Does a Donor Agreement Cover?
Each agreement is tailored to the individual arrangement, but most donor agreements will address topics such as:
Intentions and legal parentage
Conception method and medical details
How the conception will occur (e.g. through a fertility clinic, self-insemination, IVF, or surrogacy).
Any relevant health testing, genetic screening, or medical consent requirements.
Financial matters
Clarifying that the donor has no financial responsibility for the child, or setting out agreed contributions if the parties decide otherwise.
Whether any costs (such as fertility treatment or legal fees) will be shared.
Relationship boundaries
The level of contact the donor will have during pregnancy, birth, and beyond.
Expectations about involvement in family events, milestones, or decision-making.
Future changes
How changes in circumstances (such as new relationships or relocation) will be handled.
Whether the parties agree to review the arrangement if their situation changes.
Confidentiality and privacy
How information about the donor and the conception will be handled.
What the child will be told about their origins, and at what age.
A specialist lawyer will also ensure that the agreement reflects the requirements of state and territory laws, including those under the Assisted Reproductive Technology Act 2007 (NSW) and the Status of Children Act 1996 (NSW).
Known Donors vs Anonymous Donors
In practice, donor arrangements often fall into two broad categories:
Clinic-based anonymous donation, where donors provide sperm or eggs through a registered fertility clinic and have no identifying relationship with the recipient.
Known donation, where the donor and recipient already know each other — for example, a friend or relative offering to help.
The legal risks are generally higher in known donation arrangements. There is a greater likelihood of ongoing contact, blurred boundaries, or differing expectations about parenting roles.
A donor agreement helps to define these boundaries clearly. It can be the difference between a lifelong cooperative arrangement and years of uncertainty or conflict.
What Happens If You Don’t Have a Donor Agreement?
Without a written donor agreement, everyone’s understanding of the arrangement may differ. This can lead to emotional and legal conflict later on — particularly if:
The donor later seeks a parenting role;
The intended parent changes their mind about the donor’s involvement; or
Questions arise about financial responsibility or inheritance.
In these cases, courts will look at the conduct and intentions of the parties at the time of conception and afterward. If there is no clear written record of those intentions, the court must infer them from evidence such as text messages, witness statements, or social media posts — often leading to distressing and expensive litigation.
Having a donor agreement in place doesn’t just protect the donor. It protects everyone involved — including the child — by promoting certainty, stability, and clarity from the start.
Legal Advice Before Signing
Before signing a donor agreement, all parties should obtain independent legal advice. This ensures that everyone understands the document’s legal effect and that it truly reflects their intentions.
An experienced family lawyer can also:
Draft or review the agreement to ensure it’s comprehensive and legally sound;
Explain how the agreement interacts with relevant state and federal laws;
Discuss alternative legal options, such as parenting orders or consent orders if the arrangement evolves; and
Help resolve disputes if the agreement needs to be revisited in future.
Final Thoughts
Starting or helping to create a family is an extraordinary act of generosity and trust. But it’s also a step that can have lifelong legal and emotional consequences. A donor agreement doesn’t just record your intentions — it gives everyone involved the confidence that they are entering into the arrangement with clear expectations and mutual respect.
If you are considering becoming or using a donor, take the time to seek legal advice before you proceed. A short conversation with a specialist family lawyer can prevent years of uncertainty later on.
Thornton + King can assist with all aspects of donor conception and parenting arrangements, including drafting and reviewing donor agreements, providing independent legal advice, and helping you understand your rights and obligations under Australian law. To speak to an expert in donor agreements and parenting arrangements, give us a call or submit an enquiry now.
