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Wait?! Am I a sperm donor or a parent?


In our previous articles “Who is a Parent?” and “Parenting Orders and What You Need to Know” we discussed what it means to be a parent under Australian Law, and the fact that people who are not ‘parents’ are still able to apply for Parenting Orders in relation to children.

Both of these issues were recently considered earlier this year by the High Court of Australia in Masson and Parsons & Ors. The matter made headlines due to the relative rarity of Family Law issues being heard in Australia’s highest Court and the importance of the findings made for many families across Australia.  

Background facts

This matter concerned an Application from Mr Masson, who in 2006 acted as a sperm donor for his friend, Ms Parsons. At the time, Ms Parsons had recently commenced a lesbian relationship, but did not intend to raise the child with her partner.  Mr Masson and Ms Parsons agreed that their child would benefit from Mr Masson’s involvement as a paternal figure. From birth, the child spent regular time with Mr Masson and knew him as ‘daddy’. Mr Masson financially supported the child and had an active role in making decisions about the child.

In 2015, Ms Parsons and her now long-term partner decided to relocate with the child to New Zealand.  Mr Masson opposed the relocation, and applied for a Court Order restraining the couple from moving with the child.  

The initial hearing by the Family Court of Australia

The matter was initially heard by the Family Court of Australia.  While there was no question that Ms Parsons was the child’s mother, the position of her partner and of Mr Masson was less clear.

The Act does not explicitly define who is a parent, but it does provide a number of circumstances in which someone can be presumed to be a parent.  These presumptions were the topic of our previous article.

Relevantly, section 60H of the Act provides that when a woman has a child using artificial conception, the woman and her married or de-facto partner (called the “other intended parent”) are presumed to be parents of the child, and the person who donated genetic material is not a parent of the child.  Section 60H does not contain a provision for a single woman who has a child using artificial conception.

Section 60H did not apply to Ms Parsons’ partner because, at the time of conception, Ms Parsons’ partner was not her married or defacto partner. Their relationship was new at the time, and being neither the married nor defacto partner of the mother, Mr Parsons’ partner was not the other intended parent.  

The Judge also found that section 60H also did not exclude Mr Masson from being a parent, because it should be properly read as “as expanding rather than restricting the categories of people who can be parents".

The Act does not specifically define the term ‘parent’, so the ordinary meaning of the word applies. The trial Judge found that, because Mr Masson was a biological parent who had been involved in the child’s life and was not excluded from being a parent by section 60H, Mr Masson was a parent according to the ordinary meaning of the word. Ms Parsons’ Application to relocate with the child was unsuccessful.

The Appeal to the Full Court of the Family Court of Australia

Ms Parsons appealed the decision of the trial Judge, on the basis that the Act did not answer whether Mr Masson was a parent.

Section 79(1) of the Judiciary Act 1903 allows a Court that is determining a matter under Federal law to ‘pick up’ a relevant law of a State or Territory, if the existing Federal law does not provide an answer to the issue in question.

Ms Parsons submitted that there was a gap in the Act, and that the Court could refer to sections of the Status of Children Act 1996 (NSW). The Status of Children Act is clear that in circumstances of artificial conception, the donor of genetic material is not a parent, irrespective of whether the mother has a married or defacto partner. Other states have similar provisions to the Status of Children Act in respect of the parentage of sperm donors.

Ms Parsons was successful with her Appeal.  The Full Court of the Family Court of Australia determined that the Act did not answer whether Mr Masson was not a parent, the State law could therefore be picked up, and under the State law, Mr Masson was not a parent.

Appeal to the High Court of Australia

Mr Masson appealed to the High Court.  He argued that the Court should not have picked up the State law, because the Act provided a comprehensive method for assessing who was a parent.

To provide some context, parties do not have an automatic right to appeal a decision to the High Court.  If a party is unsatisfied with a decision made by a Federal Court, they must first be granted special leave to appeal the matter to the High Court.  In the 2017-2018 financial year, the Full Court of the High Court heard only 495 Special Leave Applications.  Hearings in the High Court are generally rare, and usually indicate that the matter involves a significant issue in an area where the existing law does not provide a clear answer.

This was the principal issue for determination by the High Court.  Did the Act provide a clear and complete answer for how to determine whether or not Mr Masson was a parent, or was there a gap which could be filled by the Status of Children Act 1996?

The contest between State and Federal law led to submissions being made by the Federal Attorney-General and a number of State Attorney-Generals.  Unsurprisingly, the Federal Attorney-General submitted that the Federal law was complete and did not allow for State laws to be considered.  The submissions of State Attorney-Generals claimed that the Act did not provide an answer to these circumstances, and advocated the use of State law to provide clarity.

The High Court found that, when determining whether or not someone is a parent, the Act did not have gaps which needed to be filled by State law. It was held that:  

“The question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of ‘parent’.”

Under the ordinary meaning of the word, Mr Masson was the child’s parent.  The ordinary meaning of the word was the meaning used by the Act, and therefore reference to a State law was not required.  

The consequences of the decision in Masson and Parsons & Ors

The outcome in this matter raises important questions in Family Law.  Would Mr Masson have been a parent according to the ordinary meaning of the word if he had only donated his sperm, without further involvement in the child’s life?  If the answer to that question is no, how much involvement does a sperm donor need to have to ‘become’ a parent?  Is it desirable that children born through artificial conception cannot be certain who their parents are until a Court makes a decision?  

Whatever the implications, the matter highlights the constantly evolving nature of Family Law, as well as an area in which the law does not appear to be fully settled.

If you have any questions about the parentage of a child, or any other aspect of Family Law, contact our Team at Butlers.

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John Butler on Wednesday, 04 December 2019 05:17

Great post. A sign of our increasingly complex families.

Great post. A sign of our increasingly complex families.
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Monday, 16 May 2022