Māori sperm donor appointed guardian of child mother described as ‘half-caste’ after Family Court challenge

A Pākehā mother in a same-sex relationship sought the help of a Māori sperm donor so she could have what she described as a “half-caste” baby.

But the friendship between the mother and donor broke down, and now a court has appointed the man as a guardian and granted him three-weekly contact to ensure the child’s cultural needs are met.

The 5-year-old girl’s mother, now single, opposed guardianship, saying the man had little involvement in the child’s life and his intermittent visits were “confusing” to the young girl.

According to the decision published by the Family Court this month, the child, identified by the pseudonym Elle to protect her real identity, was born in 2018.

The other parties aren’t identified, although the man is described by the judge as having a “nationally important role in New Zealand’s cultural heritage”.

In an email chain between the mother and donor in 2016, the mother wrote she wanted to have a “half-caste Māori baby” - words the judge labelled “uncomfortable”.

The man agreed to donate sperm, and he and the mother signed an agreement. The baby would be in the custody of the mother, but the agreement provided for the man’s involvement in her life and anticipated co-operation and some consultation. It also entitled him to choose a middle name.

But the relationship fell apart soon after Elle’s birth. Her mother struggled with the man’s “strongly expressed need” to introduce the child to his whānau and the inconsistency of his visits, the decision says.

During the Covid-19 pandemic, there was a six-month gap between his visits.

The man eventually applied to the Family Court to be declared a guardian of the child and a judge heard the case in August. The child’s mother opposed the application, saying he hadn’t considered Elle’s developmental concerns.

“Her case is focused on the need to protect Elle from the inconsistency, and on the applicant’s lack of understanding of the impact of the gaps in contact on Elle,” District Court Judge Jill Moss wrote in her decision.

The man said the inconsistency of visits was down to work demands. His ultimate desire was for his daughter to be aware of her identity and proud of her heritage.

“His evidence left the court with the distinct impression that the principles for Elle relate more to her belonging to a proud heritage, rather than his engagement in the minutiae of her life.”

Cultural consideration fundamental - judge

Judge Moss wrote that it was necessary to consider “familial, community and cultural matters which are inherent in the development of the identity of a Māori child. These considerations are different from those for a Pākehā child”.

Moss said the obligation arose from Te Tiriti o Waitangi, and the assessment would be incomplete without applying the principles of tikanga.

“The health and wellbeing of Māori children is undermined if they are not considered, indivisibly, from their whakapapa.”

Assessment from two psychologists found the man’s difficulties with contact had been affected by the mother’s anxiety surrounding it. The psychologists also found that, when supervising a meeting between him and Elle, she was resistant during the initial stages of the meeting. The reason for this couldn’t be determined.

“Elle needs urgent attention to matters relating to her identity, and a defined sense of belonging within her whānau. As [the man] described it, if she relates to the whānau, she relates to him. That approach does not accord with Eurocentric social science theory.”

Ultimately, Judge Moss concluded the man should play a role in her life.

“I consider that the appointment of the applicant as a guardian advances Elle’s welfare and best interests. It will ensure a legally recognised pathway to development of the broad features of her identity.”

He was formally declared a guardian and permitted to have contact with Elle no more than once every three weeks.

The judge also ordered his choice of a middle name be added to the girl’s birth certificate. His last name will also be added as a third name, but it will be Elle’s choice later in life if it is hyphenated to her surname.