Are Sperm Donors Parents? The Case of Masson v Parsons

 In Family Law

On 19 June 2019 in the case of Masson v Parsons and Ors [2019] HCA21, the High Court of Australia determined that a “sperm donor” was the parent of a child.  For many people, this decision might cause some confusion and concern.

Under section 60H of the Family Law Act 1975, a child born to a woman by an artificial conception procedure, whilst that woman was married to or in a de facto relationship with another person, is considered to be the child of that woman and their partner, irrespective of whether the child is the biological child of the woman and her partner or whether the woman or her partner have provided genetic material for that artificial conception procedure.

Section 60H applies provided that the donor of any genetic material, the woman and her partner, have all consented to the use of any genetic material in the artificial conception procedure.

Section 60H also sets out that a child born to the woman and her partner in the above circumstances will be recognised as the child of the woman and her partner if their situation falls under the prescribed law of the State where they reside.

Each State has its own legislation regarding who is considered to be the parent of a child born from an artificial conception procedure, surrogacy or sperm or egg donorship.

The State legislation had been inconsistent, but in recent years most States have enacted law that clarifies who the parent of a child is, if that child was born by an artificial conception procedure. Such laws attempt to recognise the significant changes that have taken place in how families are created and provide certainty to couples or single people conceiving children by artificial conception.

The Family Law Act 1975 applies across Australia, except for Western Australia.  Under the Family Law Act, a finding that a person is a parent of a child has wide implications, including:

  1. That a parent of a child has “parental responsibility” for the child. Under section 61B of the Family Law Act, this refers to all of the duties, responsibilities, powers and authority parents have in relation to children;
  2. That if a Court makes a Parenting Order, the Court must apply a presumption that it is in the best interest of a child for that child’s parents to have equal shared parental responsibility, meaning that parents share the major decision making role about their child;
  3. That if the Court proceeds to make an Order for parents to have equal shared parental responsibility, the Court must then turn its mind to either making an Order for the child to spend equal time with each parent or, if that is not appropriate, the child spending substantial and significant time with each parent;
  4. In making a Parenting Order, the Court is required to consider the child’s best interests as being of paramount importance. In determining what is in the child’s best interest, the Court must take into account matters which are primary considerations and matters which are additional considerations;
  5. A primary consideration includes the benefit to a child of having meaningful, ongoing relationships with their parents.

In the Masson v Parsons case, the matter came before the High Court after the Family Court of Australia initially found that Mr Masson was the “parent” of a child who had been born following artificial conception, for which Mr Masson was the sperm donor.

It was Mr Masson’s position that when he agreed to be the sperm donor, it was also intended that he would be registered on the child’s birth certificate and he would be providing ongoing support and care for the child.

The child was born and lived with Ms Parsons and her female partner.  Mr Masson was registered on the child’s birth certificate and had an ongoing role in the child’s life, providing financial support and engaging with the child’s care, welfare and development. It was Mr Masson’s case that he had an extremely close relationship with the child.

When Mr Masson learned that Ms Parsons and her partner intended relocating from Australia to New Zealand with the child, he commenced proceedings seeking Parenting Orders in a New South Wales Registry of the Family Court of Australia.

The Family Court found in Mr Masson’s favour on the basis that Section 60H of the Family Law Act 1975 expanded the categories of people who could be parents and that Mr Masson was a parent within the ordinary meaning of the word and therefore a parent of the child for the purposes of the Family Law Act, 1975.

Ms Parsons appealed that decision.

The Full Court of the Family Court looked at the issue from the perspective that the Family Court was exercising federal jurisdiction and therefore, section 79 of the Judiciary Act 1903 (Cth) must be applied. That section provides that State law is binding on courts exercising federal jurisdiction, unless a Commonwealth Act sets out otherwise.

The Full Court therefore held that Sections 14(2) and 14(4) of the Status of Children Act, 1996 (NSW) (which was a State Act) applied to the situation, as Ms Parsons became pregnant by means of a fertilisation procedure using Mr Masson’s sperm at a time when she was not married to him.

Under the Status of Children Act, if a woman becomes pregnant by means of a fertilisation procedure using sperm obtained from a man who is not her husband, there is a presumption that the man is not the father of any child born of the pregnancy.

Mr Masson appealed to the High Court of Australia.

The High Court of Australia held that Sections 14(2) and 14(4) of the Status of Children Act, 1996 (NSW) did not make the presumption of parentage binding on the Family Court.  The High Court considered that the term “parent” should have its ordinary, everyday meaning and, taking into account the facts of the particular case, Mr Masson was the parent of the child.

The issue of who is or might be considered to be a “parent” is not necessarily straightforward.

If you are uncertain regarding your status as a parent or are a person concerned with the care, welfare and development of a child, we would recommend you seek legal advice.  Johnston Withers Lawyers are experienced in Family Law matters, including children’s issues, and our team of Lawyers are available across South Australia to assist you. Contact us for a free initial consultation today.

Recommended Posts