Consider this scenario: Two women are in a relationship. Let’s call them Kylie and Rachel. Kylie and Rachel decide that they want to have a child together and want to use donor sperm to conceive. They decide that Kylie should attempt to get pregnant using an embryo created from the donor sperm and a donor egg from Rachel.
For someone to become an egg donor they have to ‘donate’ the eggs to the recipient and that recipient then has authority to decide how the embryos are used. You can see that this makes sense in the situation where a heterosexual couple uses donor egg or sperm to conceive. If the woman in the relationship gives birth to the child, the law then presumes that she and her partner are the legal parents of the child and the sperm donor is not a legal parent.
However, in this scenario, Rachel is giving a donor egg to Kylie, and this means that Rachel has to give up all rights to her eggs and Kylie ‘owns’ the embryos. It also means that Rachel (the ‘egg donor’) will be conclusively presumed not to be a parent of the child in the first instance.
But that is not where things end, and this can be very confusing for couples in this situation.
In this scenario, if Kylie conceives and gives birth to a child, ‘William’, using an embryo created from Rachel’s egg and donor sperm:
- Kylie is the legal mother of William;
- The sperm donor is presumed not to be a legal parent; and
- Rachel, as Kylie’s de facto partner will be presumed to be William’s parent. This not because William is biologically a child of Rachel’s (from her egg), however, it is by virtue of Kylie being in a de facto relationship with Rachel at the relevant time.
If Kylie and Rachel later separate, the matter can be further complicated by any parenting Orders the Family Court may make.
Another legal issue to consider is who ‘owns’ the embryos and whether or not Rachel can use the embryos if Kylie dies.
Most fertility clinics will recommend that you seek legal advice first if you are considering donating gametes or using donor gametes to conceive.
If you have any questions about the legal aspects of IVF or surrogacy, contact Kirsty McLeod for more information.
Kirsty McLeod is a Family Lawyer at Farrar Gesini Dunn,Canberra Office
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