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A NSW judge has suggested allowing for three parents to be on a birth certificate after his landmark decision to remove a sperm donor's name from his 10-year-old daughter's certificate left the man devastated.
NSW District Court Judge Stephen Walmsley said yesterday he had no choice after a 2009 retrospective law gave the birth mother's former partner - they separated in 2006 - legal parenting status and state law allowed for only two parents to be registered.
The 58-year-old Sydney man is not a legal parent, regardless of being on the birth certificate and having regular access rights, because the child was conceived using artificial insemination.
Judge Walmsley said he had considerable sympathy for the father. ''He has had a close and loving relationship with [the girl] all of her life. So have his mother and his sister … Over the years he has contributed tens of thousands of dollars to [the girl's] upkeep and has performed acts of great generosity to [the birth mother],'' Judge Walmsley said in his judgment.
The case highlights the inadequacy of laws dealing with multi-parent families, with Judge Walmsley suggesting changes to allow sperm donors to be also listed on a birth certificate.
''No doubt a provision for registration of a third parent for a situation such as this one might be a neat answer to the problem this case presents,'' he said. ''I do not find it surprising that he sees it as unjust, that almost 10 years after his name was placed on the Register as the father, his name may be removed and replaced with the name of [the birth mother's] former partner.''
A spokesman for the NSW Attorney-General, Greg Smith, said he was ''considering the judgment''. The girl's father said yesterday he was ''absolutely outraged''. ''My daughter deserves to have an identity, my daughter deserves to have a father,'' he said.
The women, who did not want to comment yesterday, had advertised in the gay press for an ''uncle figure''. The man agreed to pay for about $10,000 in pre-birth treatments and for a midwife. The women sent him an invitation to hear the baby's heartbeat. But the relationship broke down soon after the child was born.
Janet Loughman, principal solicitor of Women's Legal Services NSW, which represented the birth mother's former partner in the case against the NSW Registrar of Births Deaths and Marriages, said ''not being listed on the birth certificate is not a barrier to known sperm donors having a relationship with a child''.
The donor father has consent orders for fortnightly visits through the Family Court but told the District Court the women had not been adhering to these and he had not seen his daughter in several months.
"Contrary to popular wisdom birth certificates do not make you a parent, they are just proof, like a driver's licence,'' she said. ''They record legal parentage, not genetic parentage. It is the legal parents who need that proof as they go about the daily business of raising the child.''