Birth mum loses to sperm donor in landmark custody case

A lesbian birth mother has lost parental responsibility of her only child to the nine-year-old boy’s sperm donor father in what has been described as a landmark Victorian case.

A lesbian birth mother has lost custody of her only child in a landmark five-year legal battle. Picture: Supplied

A lesbian birth mother has lost parental responsibility for her only child to the boy’s sperm donor father.

In what may be a landmark Victorian case, the Federal Circuit and Family Court of Australia last month stripped the mother of responsibility for the young child and awarded it to her former partner and the boy’s sperm donor, bringing an end to an almost five-year custody battle between the trio that has cost the parties hundreds of thousands of dollars in legal fees.

The boy was conceived through IVF using donor eggs and donor sperm.

The eggs were donated by a friend of the boy’s birth mother and her partner, while the sperm was donated by the man the boy calls Daddy.

That man first met the boy at his birth and has spent time with him regularly since, ­including overnight visits.

The sperm donor was not listed on the boy’s birth certificate.

He maintains he donated his sperm under the agreement that he would have an ongoing involvement in the child’s life.

But he was not listed on the boy’s birth certificate, the boy’s birth mother claiming he had waived his rights to formal parental responsibility.

A messy custody battle was sparked in recent years after the boy’s mothers began living apart.

For the past five years the boy has spent time with each of his mothers and his sperm donor father.

“To characterise (the sperm donor) as a sperm donor and not a person concerned with (the boy’s) care, welfare and development would be to ignore many of the facts and circumstances of this case which lead to the conclusion that (the sperm donor) is indeed in practical terms a parent of (the boy) within the ordinary meaning of the word,” the trial judge ruled.

“The evidence unequivocally supports that (the sperm donor) has provided support and care to (the boy) since the time of his birth and will continue doing so.

“(The mothers) do not enjoy any superiority over any other person keenly interested in (the boy’s) welfare, namely (the sperm donor).”

The boy was conceived through IVF using both donor eggs and donor sperm. Picture: iStock

The birth mother had been fighting for sole parental ­responsibility of the boy.

Her former partner sought that she and the sperm donor father shared responsibility.

An independent lawyer for the boy advocated for either shared responsibility between the trio, or that sole responsibility be given to the sperm donor father. The trial judge ruled it was in the boy’s best interests to make orders that were least likely to lead to further proceedings.

That meant shared responsibility between the birth mother’s former partner – who had turned her life around – and the sperm donor father.

“Irrespective of whether the presumption of equal shared parental responsibility applies or is rebutted, I am satisfied that it is not in (the boy’s) best interests for all three to share parental responsibility for him,” the judge ruled. “(The boy) is a child who has medical and health needs, and requires supports. It is imperative that major long-term decisions in relation to these issues are made without delay and to the best standards.

“It is in the hands of the parents whether (the boy) can ­finally cease being caught in the middle of them litigating about him,” the judge said.

The birth mother told the Sunday Herald Sun she had hoped to appeal the decision, but was told it would be futile.

In 2019 a majority of the High Court ruled that a sperm donor was the legal father of his child because he was ­involved in her life.

Originally published as Birth mum loses to sperm donor in landmark custody case