The High Court of Australia in Masson v Parsons & Ors (case S6/2019) is currently deliberating over whether sperm donors can be recognised as legal parents, in certain circumstances.
In 2006 Newcastle man ‘Robert’ donated sperm to his long-term friend ‘Susan’. Shortly following, a child was conceived through artificial insemination. At the time of conception, both Robert and the mother intended for Robert to be involved in the child’s life.
Robert has since initiated legal proceedings to restrain Susan from relocating with the child to New Zealand. It is understood that Robert is listed on the child’s birth certificate as her father, had been paying child support and is known to the child as Dad. Robert had also been heavily involved with the child’s care, including volunteering at the school canteen and taking her to ballet lessons.
At first instance the Family Court ruled in Robert’s favour, recognising him as legal parent of the child. Biology, in addition to the belief that Robert would take on parental responsibilities, were equally significant considerations. Judge Cleary remarked that Robert was ‘a parent in the ordinary meaning of the word’. The Court ordered equal share of parental responsibility and relocation to New Zealand was denied.
The case then went on appeal to the Full Court of the Family Court. Here, the decision of the trial judge was reversed. Applying NSW law, the court held there is a presumption that a sperm donor is not a parent unless married or in a de facto relationship with the mother at the time of conception (see s 14(2) of the Status of Children Act 1966). Biology was not a determinative factor in this decision, nor was Robert’s expectation that he would parent the child.
As mentioned, Robert has since appealed to the High Court. The Commonwealth Attorney-General intervened and is supportive of Robert’s position. The Attorney-General has submitted that there is an inconsistency between State and Commonwealth laws governing the issue. As such, the Attorney-General believes the Family Law Act 1975 (Commonwealth) should apply, preferential to State law. If the Court favours this approach, it is presumed under the Commonwealth Act that it is in the best interests of the child for the parents to have equal shared parental responsibility (see s 61DA(1)). Alternatively, a parenting order could ensue with Robert being regarded as a ‘person concerned with the care, welfare or development of the child’ (see s 65C).
The High Court heard Robert’s case on 17 April and a decision is expected to be handed down shortly. This case will have important ramifications, particularly for parents and donor-children.
