Just last Wednesday the High Court handed down a landmark decision confirming the legal parentage of a sperm donor.
Robert Masson donated sperm to his friend Susan Parsons in 2006, leading to the conception of now twelve-year-old “B”. B and her younger sister “C” live with Susan and her partner Margaret in Australia and spend regular time with Robert and his partner Greg. Robert is listed on B’s birth certificate as her parent. B calls Robert “Daddy”.
In 2015, the Parsons decided to relocate to New Zealand with B and C. Robert issued proceedings in the Family Court to restrain the Parsons from moving overseas and sought orders for shared parental responsibility and regular time with the children.
In the Family Court, the outcome boiled down to whether Robert could be considered a legal “parent” of B. When making parenting orders under the Family Law Act 1975 (Cth), the Court must consider what outcome would be in the best interests of B and her little sister C. In order to evaluate the children’s best interests, the Court must assess “the benefit to the child of a meaningful relationship with both parents”. Therefore, whether Robert is considered B’s legal parent is determinative.
How does Australian law define a “parent”?
The federal Family Law Act does not expressly define “parent”. It confirms that Susan is a legal parent of B as she conceived B by way of artificial conception, but the Act does not speak to whether a sperm donor in Robert’s position can be considered a legal parent.
In contrast, the NSW state Status of Children Act 1996 provides that, in specific circumstances,1 the biological father of a child who was born as a result of a fertilisation procedure is not the father of the child.
Is a sperm donor considered a “parent” under the Family Law Act?
The Family Court proceedings were subject to several appeals. See Part I of this blog post for further details. In the High Court, the principal issue for determination was whether there was gap in the federal law by virtue of the fact that the Family Law Act does not expressly define a “parent” in Robert’s circumstances. If a gap existed, would the state law (ousting sperm donors from legal parentage) apply?
The High Court resolved that there was no such gap in the federal law, and that Robert was a legal parent of B. All seven Judges of the High Court confirmed that the limited categories of “parent” in the Family Law Act were not meant to be exhaustive, and in fact, as they stand, they expand the ordinarily accepted conception of “parent” – by adding for example, adoptive parents.
Therefore, the High Court interpreted the word “parent” under the Family Law Act by its ordinary, accepted, English meaning. At the time of conception, Robert believed that he would father B, and as her parent, he would support and care for her. While B resided with Susan and her partner Margaret, Robert continued to have an ongoing role in B’s financial support, health, education and general welfare. In light of these facts, the High Court deemed Robert a parent of B.
What does this mean for sperm donors?
While many were waiting with bated breath for the outcome of Masson v Parsons,2 expecting the High Court to make a definitive ruling on the legal rights and liabilities of sperm donors, no such ruling was made.
Does a sperm donor pay child support in Australia?
The floodgates have not opened for sperm donors to apply to Courts seeking parenting Orders, nor to pay child support.
The High Court confined their decision to the specific facts and circumstances of Robert’s case. His intention to be B’s parent, his registration on her birth certificate, his support and care for her since her birth were determinative in the Court’s finding of legal parentage.