A Sperm Donor Can Be A Parent

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A Sperm Donor Can Be A Parent

On Wednesday 19 June 2019 the High Court of Australia handed down their unanimous decision in our case, Masson & Parsons & Anors.

The case was heard by the High Court on 16 and 17 April 2019, following an appeal from the decision of the Full Court of the Family Court of Australia on 28 June 2018.

In 2006, our client, Mr Masson, and his close friend, Ms Parsons, determined to conceive a child in an at home artificial insemination. Mr Masson and Ms Parsons agreed that they would co-parent the child.

When the child was born, Mr Masson’s name was entered on her birth certificate as her Father.

By the time of the child’s birth, Mrs Parsons had commenced a de facto relationship with her now wife. The child lived with Mrs Parsons. Mr Masson lived nearby and was immediately involved in the child’s parenting and daily life.

The child called Mr Masson ‘Daddy.’

In 2014, when the child was 7 years old, the Mothers notified Mr Masson that they intended to relocate to New Zealand. Mr Masson applied to the Family Court for parenting orders, concerned about the effect on his daughter of an international relocation that would limit her ongoing relationship with him.

The case was first decided in 2017 by Her Honour Justice Cleary. Justice Cleary found that Mr Masson was the child’s social, psychological and biological parent, and that he provided his genetic material to Mrs Parsons to conceive a child for the express purpose of fathering a child he expected to parent. Therefore, Justice Cleary determined that Mr Masson was the child’s legal parent for the purposes of the Family Law Act 1975.

Orders were made that restrained Mrs Parsons from relocating to New Zealand with the child, and to provide for the child (and her sister) to spend 5 nights per fortnight, and equal school holidays, with Mr Masson.

The Mothers’ appealed the decision of Justice Cleary in the Full Court of the Family Court of Australia. They argued that, because the word ‘parent’ was not specifically defined in the Family Law Act 1975, Justice Cleary ought to have considered and ‘picked up’ sections of the Status of Children Act 1996, a piece of NSW legislation, that stated that, where a child is conceived by way of artificial insemination, the donor of sperm is presumed not to be a parent of that child. The Full Court agreed with the Mothers.

Mr Masson appealed the decision in the High Court of Australia.

The High Court found that the Full Court was wrong. They determined that whether a person can be a ‘parent’ for the purposes of the Family Law Act 1975 following an artificial insemination procedure “is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.” 

The High Court therefore found there was no reason to doubt that Mr Masson was a parent of his daughter.

It is now certain that, where a child is conceived by way of artificial insemination, the ‘donor’ of genetic material can be recognised as a parent, providing they fulfill the roles and responsibilities of parenthood. The decision is extremely positive in the limited circumstances where two people who are not in a relationship create a child using artificial conception, and parent that child together. Both of those people can now be legally recognised as parents, aligning the legal position with their child’s reality.

The High Court’s decision does not find that all sperm donors are, or should be, recognised as parents. The High Court makes it expressly clear that whether a donor is a parent will always be a question of fact and degree and will involve careful consideration of the involvement that a man has in their child’s life. Where a donor is unknown, or known but not fulfilling the role of parent, they cannot, as a result of the High Court’s decision, be recognised as a parent.

If you are considering conceiving a child using a known donor, or you have a child that was conceived using a known donor, and would like to learn more about this case and how it may affect you, please contact us for specific legal advice.

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