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“Who’s the Daddy?” Sperm Donor’s Parental Dispute Reaches the High Court

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On April 17th The Australian (“Custody case tests who is parent”) reported on a landmark case that has the potential to change the legal status of parenthood in Australia. The case involves a sperm donor who is attempting to prevent a lesbian couple from relocating to New Zealand with his daughter.

Our blog Family Court Clarifies Sperm Donors’ Parenting Rights (October 2017) commented on an earlier chapter of the ongoing parental rights dispute under the case name (using pseudonyms) of Masson & Parsons. However, the matter has moved on. The implications are potentially considerable.

Key facts

The mother of the child, Susan Parsons, had grown up in New Zealand but left in her 20s living in Australia for over 30 years. She had met Robert Masson, a gay man, in 1990 and they were close friends for over 25 years.

While on holiday in New Zealand in 2006 they discussed Parsons’ idea of having a baby together. They agreed to conceive a child through private informal artificial insemination as long as he could act as co-parent.

While attempting to conceive Parsons, then 40, met Margaret who was some ten years her senior. She later became Susan's wife.

Several months after the birth of their daughter the women asked Masson to father another child, but he refused. By this time he had moved from Sydney to Newcastle to be close to his child.

Susan Parsons had a second child, in 2008, via an anonymous American sperm donor. Masson meanwhile continued his role as co-parent with his daughter but also the second daughter. Both girls refer to him as “Daddy” with Margaret known by her name and Masson’s mother known as “Nana”.

Parsons decided that she wished to return to her native New Zealand with her wife and daughters and applied to the court, in 2015, to remove Masson's name from the birth certificate to enable this.

Masson obtained an order preventing the relocation. The Court accepted that he had taken on a parental role, had taken part in the insemination in the belief he would have a role in the child's life and was a legal parent. The Court noted that the best interests of the child must be taken into account and the child had thrived under the present arrangements. Justice Cleary said the law recognised parents in different ways: "However, where there is a challenge to a biological parent being a legal parent, as there is here, biology is part of the answer".  

Moreover, the women could not prove they were in a de facto relationship at the time of conception. Under NSW law, to be considered a legal parent of the child, Susan and Margaret would need to have been married or in a de facto relationship at the time of conception.

As regards the second child, Margaret was the intended parent.

However, the Parsons successfully appealed this decision. In 2018, the Full Court of the Family Court held that sperm donors are not legal parents regardless of the mother’s relationship status at the time of the conception.

Key issues

The High Court has, in effect, been requested to consider the definition of a legal parent and the constitutional issue of the Family Law Act and its relationship with relevant State legislation.

In NSW, and similar legislation in other states, the Status of Children Act provides “that if a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy”. Moreover, this presumption is irrebuttable. In addition, the Full Court of the Family Court held that the Family Law Act, relating to the parentage of children born via an artificial procedure, does not “otherwise provide”. There was no constitutional reason why the State legislation should not apply, and so Masson was not a legal parent. This presumption against parentage of sperm donors holds even where the donor had expected to act as a parent.

The trial judge had, in contrast, followed the judgment in Groth & Banks (2013) where the State legislation was not considered relevant as it relied on the donor being anonymous. Moreover, the man complied with the definition of a parent under the Family Law Act 1975(Cth) and that would prevail.

The presumptions of parentage in the Family Law Act include marriage, non-marital cohabitation, registration of birth, and acknowledgment of paternity through a parentage presumption is rebuttable by proof "on the balance of probabilities".

Recognition of the significance of the case is that the Attorney-General, Christian Porter, has intervened to support Masson to establish his right as a parent whereas lawyers for the Victorian Attorney-General are supporting the mother.

What does it mean?

Parentage law in Australia is complicated by the way the federal Family Law Act interacts with State or Territory laws where the Family Law Act does not clarify the position.

This case raises serious legal and social issues. Can there be more than two parents (as recognised in some jurisdictions)? Is the court to consider the circumstances of the child’s conception, intentions, genetics and who has acted as the child’s parent to date? Is the child’s perspective relevant?

The ruling could have ramifications for both children and sperm donors who are fulfilling a parental role. Potentially it could mean that a single woman who uses a sperm donor could find it difficult to exclude them from the child’s life if they wish to do so.

The case has resulted in calls by some for pre-conception agreements in complex cases as exist in some other countries.

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