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Is a sperm donor a parent?

Gemma Butler

02 Jul 2019

Topics

  • Family Law

On Wednesday 19 June 2019, the High Court of Australia handed down a landmark decision that answered the question: can a sperm donor be considered a legal parent?

In Masson v Parsons & Ors [2019] the High Court handed down a unanimous decision, the High Court confirming that a man who donated his sperm was considered to have to be a parent of the child conceived as a result of that donation.

This decision therefore extends the definition of ‘parent’ and could have a significant impact for many couples and single women whose children were conceived with known sperm donors. In this article Gemma Butler and Helen Phelps outline the details of the case, and the basis for the Court’s decision.

What were the facts?

In 2006, Robert Masson and Susan Parsons (their court pseudonyms) decided to conceive a child ‘privately and informally’. Robert provided his semen to Susan and, at the time of conception, he believed that he was fathering the child and would later support and care for the daughter.

Although the child lived with Susan, and later her partner, Robert continued to have an ongoing role in the child’s life. He provided financial support through funding health, education and welfare, and played an active role in her upbringing. Further, his name was entered on the child’s birth certificate as her father.

However, in 2015, Susan and her partner decided to move overseas and take the child with them. Richard decided to institute proceedings in the Family Court for orders to confer shared parental responsibility between himself, Susan and her de facto partner.

What was the key legal issue?

The issue for consideration was whether Richard fell within the definition of a ‘parent’. However, the relevant NSW and Commonwealth legislations were inconsistent with each other and so the Court needed to decide which piece of legislation applied to Richard’s case.

On one hand, the Children Act 1996 (NSW) states that if a woman becomes pregnant by means of fertilisation, using any sperm from a man who is not her husband, that man is presumed not to be the father. Under this Act, this presumption is irrebuttable.

On the other hand, the Family Law Act 1975 (Cth) also deals with the parentage of children born through artificial conception. However, unlike the NSW Act, the relevant section creates a list of expansive categories for people who could be considered the child’s parent.

Richard argued that, because the Commonwealth created many categories for when a sperm donor is considered a parent, he fell within the general definition of a ‘parent’. However, Susan and her partner argued that because the Commonwealth Act was restrictive, it didn’t apply so one needed to turn to the NSW Act to ‘fill the gaps’ as to whether or not Richard was a ‘parent’.

What did the Court decide?

In coming to their decision, the High Court found there was no reason to doubt that Richard was the child’s parent.

Although there was a clear inconsistency between the NSW and Commonwealth legislation, s 109 of the Constitution and s 79(1) of the Judiciary Act 1903 (Cth) operates, the Commonwealth legislation prevails and applies to Richard’s situation.

Consequently, the court confirmed that the Commonwealth definition of a parent was not exhaustive and the question of whether a person is a parent of a child born out of an artificial conception procedure depends on whether the person is a parent according to the ordinary, accepted meaning of ‘parent’.

In coming to the decision that Richard was a parent, the court also considered his relationship with the child. Richard had clearly demonstrated that, in addition to being the sperm donor, he had ongoing involvement and an established relationship with the child. The court placed weight on the fact that he was named as the father on the birth certificate, and the financial support he provided to the child.

What does this decision mean?

This decision could now have far reaching impact as the High Court has expanded and recognised a broad range of people who may be recognised as a parent. In making this determination, the Court gave significant consideration to the close relationship between the father and the child. The Court emphasised that the best interests of the child are paramount and considered that these interests were best represented by each of the parents having parental responsibility.

How can we help?

If you think this decision may impact you and you would like to obtain legal advice, please contact us by email or on 02 6285 8000.