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"What custody rights do I have?"

Posted in: Ask Our Expert
By GayNZ.com - 31st July 2010

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In a special 'gaybies' edition of Family Matters, we look at the rights of a woman whose partner is having a baby via a gay sperm donor. Here is her story:

My partner and and I have been together for over six years. My partner is now 29 weeks pregnant to a sperm donor who is having a part father role to the child.

My question is; if anything happens to my partner what custody rights do I have with our baby? Can the biological father come and take the child off me, if anything happens to my partner? Do I need to get anything in writing before the baby is born?

The father has said he doesn't want to have full custody if anything happens, he is a gay male and likes his life. But in time things can change, like if the child is seven or eight. What are my rights in this? We also have two boys aged nine and ten living with us, and they class the baby as their sister. My concerns are that I would hate to lose my partner, then lose our baby and the family unit is broken up.


We asked gay families researcher Nicola Surtees from the University of Canterbury what this reader's rights are. Here is her reply:

The Status of Children Amendment Act 2004, Part 2, determines the legal status of children in relation to their parents, where children are conceived through specified reproductive procedures such as donor insemination, regardless of whether conception occurred at home or through the assistance of a fertility clinic. The Act rules that where a woman conceives with donated gametes (eggs or sperm) and delivers a child, and her partner, on the proviso that she or he consented to the method used, are the child's legal parents.

This means that in the situation you have described, assuming you and your child's birth mother agreed to the procedure used to conceive and complete the birth registration paperwork accordingly, both you and your partner will be named on your child's birth certificate as your child's legal parents.

Your legal status in relation to your child will endure for the length of her life and you will both have exactly the same rights, responsibilities and liabilities in relation to your child.

The Act also extinguishes the donor's parenthood irrespective of the wishes of all parties concerned (there are some exceptions to this, but they do not apply to the situation you've described). This means that your child's donor will never be able to remove the child from you should something unforeseen occur in the future; he will have no rights, responsibilities or liabilities in respect of the child and the child will lose those that would otherwise stem from a genetic parent.

If the donor wishes to have some legal protection for his fathering role he can apply to the Family Court to be appointed as an additional guardian as provided for under the Care of Children Act 2004. Guardianship, while not conferring full parental status, does give legal authority over decision making and day-to-day care of a child but it has a number of limits (for more information, go here).

Or, under the same act, the donor could come to a formal agreement with you and your partner, as your child's legal parents, about his possible contact and role with the child.

Nicola Surtees
Lecturer
Co-Chair, Educational Research Human Ethics Committee School of Maori, Social and Cultural Studies in Education College of Education University of Canterbury


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GayNZ.com - 31st July 2010