Hello, I’m Adrian Corbould, Accredited Specialist in Wills and Estates at Turnbull Hill Lawyers with Battle of Wills, where I discuss contested estates and Wills generally.
Children and the estates of sperm donors, egg donors, and surrogates
As we’ve discussed, a deceased person’s child is eligible to apply for a family provision order on a deceased parent’s estate.
But who is deemed a child of a deceased person?
You may think this is very straightforward, but it’s not.
Back to year 9 biology.
A human is made by combining an egg from a female and sperm from a male – creating an embryo.
Gestate the embryo for 40 weeks, and sometimes, a baby is born.
After the birth of the baby, who is deemed the baby’s parents?
The woman who gives birth?
Possibly not – the birthing mother may be a surrogate – someone who altruistically volunteers to carry an implanted embryo, not her own egg but of someone else, and carry the baby through pregnancy on behalf of others.
Upon birth, the baby becomes the legal child of the intended parents, which may be the egg and sperm of the intended parents, or the egg and/or sperm could be donated, with the baby being the child of other intended parents.
Generally, the surrogate has no genetic link to the child, despite carrying and birthing the child.
In this instance, the surrogate is not the legal parent, and maybe the egg donor is not the legal parent, and maybe the sperm donor is not the legal parent – the parents are whoever are the intended parents following the birth of the child.
So what about sperm donors?
Can a male be an anonymous donor?
In New South Wales – no.
Once a child is born from a sperm donation, the IVF clinic that assisted in the process must by law, provide identifying details of the donor to the NSW health register, such that when the child is 18 they can access the identity of the sperm donor.
This is because, most understandably, children born of sperm donation can experience distress about the lack of knowledge of their biological parents, and they have a right to know.
However, does the biological father have any obligation to make provision for that child in their will, and if excluded, could the donor-conceived individual have a claim on their biological father’s estate?
In NSW, if the sperm donor is not the married or de facto spouse of the birthing woman at the time of conception, the sperm donor is presumed not to be the child’s father.
Therefore, the biological sperm donor has no obligation to make provision in their will, nor could the biological child have a valid claim on the donor’s estate – because they are not a ‘legal child’ of the deceased.
However – if the sperm donor becomes actively involved in the child’s life, in a quasi-parental role – a grey area opens, and it is possible the sperm donor could be deemed the child’s father following a High Court case involving a sperm donor father.
This is a largely untested area.
Sound complicated? It certainly is!
This is why if you have a query about it, I suggest you obtain legal advice.