The recent decision of the Family Court in Rangi v Mable (not their real names)  NZFC 10811 relates to the role of a sperm donor in the life of the child he helped create. It has had a mixed reception from legal representatives who work in the area of assisted reproductive technology, as well as fertility clinics and the relevant ethics committees. The decision is also likely to generate substantial interest from family law and tikanga Māori academics and experts.
The decision reveals the sperm donor first applied to be recognised as the father of the child. The court correctly and quickly determined that he was not the father because the Status of Children Act 1969 expressly provides that where a woman conceives a child through artificial insemination, the non-partner sperm donor is “not for any purpose” a parent of the child conceived. So far, so vanilla.
The court then had to consider guardianship and contact orders, as well as an order seeking to change the child’s name. The apparent main thrust of the applicant’s argument was that because the sperm donor was Māori, the child was also Māori and because the child’s mother was Pākehā, she was not fully able to ensure the child could access her whakapapa. Accordingly, it was argued that the sperm donor required the aforementioned orders to ensure the welfare and best interests of the child.
In the end, the court granted contact orders (with day-to-day parenting remaining with the mother) and a guardianship order for the donor. The court also changed the child’s middle name to include one of the donor’s choosing, on the basis that it related to the role of the donor in the “upbringing of the child” and was, therefore, enabled by s 41 of the Care of the Children Act 2004, given that the parties had entered a donor agreement prior to conception.
By all accounts, the case is the first of its type in New Zealand to deal with the rights of a sperm donor, and certainly the rights of a sperm donor and the welfare of the child as it relates to tikanga. Hence its interest.
Worried donors and recipients
As someone who regularly advises people undertaking surrogacy as well as gamete donors and recipients, I believe the case calls for some deliberation.
On one hand, the case could be viewed as fact-specific. After all, the decision suggests there had been prior discussions and written agreement between the donor and recipient, whereby it was intended the donor would have some role in respect of the child and her Māori heritage would be important and catered for, including the views of the donor on the child’s name. Looked at from that standpoint, the case does not upset the applecart for donor recipients generally. It does, of course, add to the growing tikanga Māori jurisprudence.
There is, however, another way the decision can be viewed. Following mainstream media reporting of the decision, I have already begun to field calls from potential donor recipients concerned about the implication that a donor could be granted guardianship rights in respect of his child, and then said guardian could be involved in making decisions related to the child, including medical treatment, where the child lives and religion.
So worried are some people about the potential for such an occurrence that they are indicating they may instead go overseas and obtain gametes from an anonymous donor through a sperm or egg bank. Given the anonymity works both ways, the likelihood of the donor being able to identify his child would be vastly reduced, and with it the risk of any such orders being sought.
Donors through New Zealand fertility clinics cannot be anonymous and identifying information is required to be captured and held on our Human Assisted Reproductive Technology register, which is accessible by the child once he or she turns 18 or before that through their parents. The purpose of that register is to ensure the child has access to his or her identity because it is in their welfare and best interests.
Our register does not unfortunately allow for the capture and retention of the same information related to non-clinic donors. That is regrettable and should be fixed. However, in most non-clinic donor cases, the donor will be known to the recipient so they can pass this information to their child. If the decision in Rangi v Mable is, however, going to drive future gamete recipients overseas to ensure anonymity or to keep donors hidden from the children, it will cause immeasurable harm to the children created. We have already borne witness to this through groups such as Donor Conceived Aotearoa which is understandably angry at its inability to access identity information about the donors due to the lack of records and the anonymity that previously surrounded gamete donation in New Zealand. Think hidden adoptions and you are on the right track.
While the concerns and anxiety caused by Rangi v Mable are more acutely felt by potential gamete recipients (and past recipients), donors themselves will be feeling the pinch at the potential the case has for widening the possibility of a recipient seeking to impose liabilities on them, especially if they have built a relationship with the child concerned.
In that sense, there is a potential chilling effect from the decision which could result in a further decline in the number of people willing to be donors when demand far outstrips supply. It may also cause Māori donors to pause for thought when clinic donors are already rare.
Personally, I consider the case of an unwitting donor having liabilities foisted upon him by a recipient to be remote, but this case reinforces the saying “never say never”. Notwithstanding, where a donor willingly accepts and seeks orders granting him rights in respect of a child, then liabilities should follow. In that case, a donor granted a guardianship order should be made liable for child support, despite the language of the Child Support Act 1991.
There are also potential implications for fertility clinics, in terms of reviewing donor consents, the advice and support they give through counselling and in the way they present applications to the Ethics Committee on Assisted Reproductive Technology (ECART).
In turn, ECART may need to consider how it determines applications, especially those involving cross-cultures, to ensure they give effect, in particular, to principles 4(f) and (g) of the Human Assisted Reproductive Technology Act 2004. The Advisory Committee on Assisted Reproductive Technology may also want to consider whether there is a need to make any adjustments to the guidelines it sets for ECART (and, by dint, fertility clinics and applicants to ECART) to follow.
While the ramifications of Rangi v Mable rumble along, in my world it will now be added as a cautionary tale when advising potential gamete recipients. Prior to the court’s decision, I and others who operate in this field would regularly roll out the case involving a lesbian New Zealand couple living in Australia who had a child with the help of a friend who acted as a sperm donor and who was regularly involved in the child’s life over a considerable period. Then, when the couple sought to relocate to New Zealand, they were prevented from doing so because of the psychological connection the child had with the donor, such that it was deemed not to be in the child’s best interest to relocate. Myriad contact and parenting orders were granted.
For me, the key takeaway is that both cases have in common an assessment of the welfare and best interests of the child which, on the facts of each case, saw the courts grant relevant orders. Rangi v Mable does not change that; it merely gives us a specific example – one that is uniquely ours, given the tikanga elements. There could, however, be unintended and potentially devastating, consequences. Time will tell. ■
Read the decision here ■
Stewart Dalley is a partner at D&S Lawyers and convenor of The Law Association’s Immigration and Refugee Law committee