A complete legal guide to sperm donor laws in Australia

In Australia, many families need a little bit of help having children. In fact, the most recent national estimates are that over 5% of all women who gave birth in Australia received some form of assisted reproductive therapy treatment such as IVF or artificial insemination. 

Of these, many also make use of donor sperm. Estimates suggest that there are over 60,000 donor-conceived individuals in Australia. And of these, up to 80% may not even know they are donor-conceived. 

There are laws that protect both donors and recipients, and the children born from these donations, including the right to information at certain times. But it might surprise you to know that there is no real right to anonymity. 

So if you’re thinking about using donated sperm, or becoming a sperm donor, here’s what you need to know about sperm donor laws in Australia.

Is sperm donation legal in Australia?

Is sperm donation legal in Australia? Yes, absolutely. But under sperm donation laws in Australia, it’s illegal to receive any form of payment for sperm donation. That’s because it’s illegal to buy or sell any human tissue in Australia, including sperm, eggs or embryos. 

However, donating sperm is a wonderful way to help people realise their dreams of having a family. You are able to donate specifically for someone that you know, or to a donor sperm bank.

Sperm donation limitations

Four states have enacted legislation that places limits on how many individuals or families can use a single donor’s sperm. These include Victoria, South Australia, Western Australia and New South Wales. In states where there is no specific legislation set for sperm donation practices, the National Health and Medical Research Council’s Ethical Guidelines on the Use of Reproductive Technology in Clinical Practice and Research (NHMRC guidelines) apply. 

Sperm donor laws Victoria – donor limitations

Sperm donor laws in Victoria limit the number of individuals to whom a donor is able to donate. In Victoria, a maximum of 10 families can have children from the same sperm donor. This includes children from current or former partners.

Sperm donor laws in South Australia – donor limitations

Sperm donor laws in South Australia also limit the number of individuals who can receive sperm from a single donor to 10 individuals.

Sperm donor laws in New South Wales – donor limitations

In NSW, there is currently a limit of five families who can have children from the same sperm donor.

Sperm donor laws in Western Australia – donor limitations

In WA, legislation on sperm donation only applies to donations through fertility clinics. This legislation sets the limit of five families per donor.

Sperm donor laws in Queensland, Tasmania, the Northern Territory – donor limitations

There is no specific legislation regulating donor conception or setting limits on families who may use a single donor in Queensland, Tasmania, the Northern Territory or the Australian Capital Territory. But reputable fertility clinics will set their own limits by policy, in line with the Ethical Guidelines on the Use of Reproductive Technology in Clinical Practice and Research.

 

What are your legal rights as a sperm donor?

No financial or legal obligations

As a sperm donor, you’re legally protected from legal or financial obligations. Any children conceived using your sperm are legally considered to be the children of the parents who register the birth. This means that you will not have any legal or financial obligation to children born through the use of your semen. It also means that you don’t generally have any rights to these children.

Right to pursue parentage in limited circumstances

In 2019, the case of Mason v Parsons and Anor established that, in certain circumstances, a donor can be legally recognised as a parent to a donor child. These circumstances included the fact that the mother was a single parent, the donor was a friend known to the mother, the donor believed he was fathering the child and not simply acting as a donor and the donor had a substantial role in that particular child’s life. 

This was an unusual case. But it does highlight the fact that sperm donors in Australia do have the ability to legally pursue parentage rights of their donor-conceived children.

Right to withdrawal of consent

You also have the right to withdraw your consent to use your donated sperm until the time of insemination or fertilisation of an egg.

Right to information

You can choose to be informed about the results of your sperm donation. This includes non-identifying information such as the number, gender and year of birth of any children born. You can also request additional information. But you’ll have to get consent of the donor-conceived adult, or the consent of the parent if the child is younger than 18. 

In Victoria, New South Wales and Western Australia there are central sperm donor registries to hold this information. In all other states and territories, each fertility clinic keeps these details.

No right to anonymity

Prior to 2004, most states (other than Victoria) allowed a donor to choose anonymity. This is no longer the case. In 2005, the National Health and Medical Research Council’s guidelines removed the right for sperm donors to remain anonymous. This brought all Australian states in line with Victoria. 

 

What are your legal rights as a recipient of sperm donation?

Right to information

Under Australian sperm donor laws, all donor-conceived Australians are able to access information about their genetic heritage and relatives, including donor and genetic siblings. This includes any donations that were made under the condition of anonymity before 2004. 

This information will be available to the parents of donor-conceived children under 18, and to the donor-conceived adults 18 and older. Again, in Victoria, New South Wales and Western Australia this information is held in central sperm donor registries. Fertility clinics keep this information in the other states and territories. 

Legal parents to donor-conceived children

Any children conceived via the donor are legally considered to be the children of the parents who register the birth. 

 

Family law sperm donation FAQs

Is a sperm donor legally a parent/father?

No. Children conceived via a sperm donor are legally considered to be the children of the parents who register the birth. 

Under some very rare circumstances, a donor has successfully applied for the right to be considered a parent to the Family Court. 

Will a donor ever be liable for child maintenance?

The financial obligations of raising a child conceived via sperm donation are the responsibility of the parents who register the birth. 

Under some very rare circumstances, a donor has successfully applied for the right to be considered a parent to the Family Court. In that case, the donor may be responsible for child maintenance. 

What happens if the child of the donor ever wants to find their donor?

The process for finding a donor varies by state and territory. In Victoria, New South Wales and Western Australia some donor information is held in central sperm donor registries. The amount and quality of information will depend on the quality and availability of relevant records. 

If you wish to contact your donor, you will need to go through the process of donor linking. Donor linking is the exchange of information between, or meeting of, people connected via donor conception treatment. Some states will have assistance for this process, for example Victoria Assisted Reproductive Treatment Authority in Victoria. 

In other states and territories, the records pertaining to donor conception are maintained by the relevant fertility clinics. Again, the quality of this information depends on a lot of factors, as some clinics could have closed or changed management, and the information contained in the records may differ. 

The requirement to keep donor information is set in the NHMRC guidelines, which fertility clinics must meet. Unfortunately, our clients have had varying degrees of success when it comes to getting information from clinics. Some have even been denied access to information.

If this has happened to you, get in touch with our team to help.

Can a donor apply for “parenting time” with the child?

Even where a sperm donor is not a legal parent, he can apply for a consent order to be involved in a child’s life. Under the Family Law Act, it’s not necessary to be a legal parent to apply for a parenting order. But the only way that this would be considered is if the donor can show he is concerned with the ‘care, welfare and development of the child’ and the Court agrees. 

In every situation, the Court will ultimately put the best interests of the child first and foremost.

 

Consider a donor agreement

If you’re considering using a sperm donor or being a sperm donor, particularly in a situation where you may know each other, a donor agreement is a great option. A donor agreement lets you record the intentions of the parents and the donor and clarifies the roles of both parties. It also lets you set out whether and what kind of relationship the donor will have with any donor-conceived child. 

Donor agreements are not binding on the Family Court. But having a donor agreement may prevent future arguments. And it could also be a critical piece of evidence should any parenting proceedings occur in the future.

If you’re considering sperm donation or using a sperm donor, we’re here to help!

If you’re considering conceiving a child with the help of a sperm donor, or you’re thinking about donating yourself, get in touch. Our expert family lawyers can help you understand all the legal implications, and your rights and obligations, in Australia and in the state where you live. 

Starting or growing a family is an important and precious time in your life. We’re here to make sure you understand all your options.

 

Have a legal question? Reach out to our experienced legal team by completing the form below for a call back.