Sperm donor or Dad? High Court decides

The High Court has decided on a matter involving a lesbian couple who had a child through the use of genetic material donated by a man known to the Mother.[i] The Mother (Ms Parsons) and Father (Mr Masson) had been friends for some time and the child was conceived on the understanding that she would live with her Mother and her Mother’s partner, however that the Father would be involved in the child’s life.

The child was conceived in New South Wales, where the State law provides that the donor of genetic material is not a parent pursuant to the Status of Children Act 1996 (NSW). Under the Commonwealth Family Law Act, if a child is born to a biological Mother and her spouse or de facto partner by way of artificial insemination, the Mother and her partner are the legal parents of that child, not the donor Father.[ii] This law does not apply where a Mother is not in a de facto relationship or marriage with the other intended parent.

This case was a little unusual, in that the sperm donor Father had been listed as the child’s Father on her birth certificate, had been involved in the child’s life since birth and had developed a close relationship with her. The Father and Mother had agreed when the child was conceived that the Father would play a role in the child’s life, and the child referred to the Father as “Daddy”.  

In 2015, the child’s Mother and her now Wife sought to relocate from Australia to New Zealand, however the Father opposed the relocation and filed proceedings in the Family Court, where the Mother was restrained from so doing. The trial Judge, Justice Cleary, found that the Father had an ongoing role in the child’s life and had a close and secure relationship with her. Her Honour found that the Mother was not in a de facto relationship with her partner at the time of conception. Consequently, section 60H did not apply and therefore Mr Masson was legally the child’s Father. The relocation would materially impact on the child’s relationship with her Father and so the Mother was not permitted to move the child to New Zealand.             

The Mother appealed the decision, relying on the New South Wales legislation which provided:

If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.[iii]

The Full Court of the Family Court found that the State Act must be applied and as such, Mr Masson was not a legal parent of the child.

Mr Masson appealed to the High Court, and interestingly the Attorney-General of both the Commonwealth and Victoria (despite the matter involving NSW law not Victorian) intervened to make submissions on whether State law or Commonwealth law should apply.

The High Court ultimately concluded it is the Family Law Act that will apply to questions of parentage and that the definition of ‘parent’ contained in that Act is not exhaustive. The Court found:

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’.

The effect of this decision

State governments have enacted legislation to allow the exclusion of a donor from being considered a child’s legal parent. However, this case means that a different test will apply to all future cases. If a sperm donor is involved in a child’s life and can demonstrate they meet the ordinary accepted meaning of “Father”, they will be considered the child’s legal parent, unless the Mother was in a de facto relationship or marriage with a person they intended to be the child’s “other parent” at the time of conception.

Although, whilst family lawyers tend to get a little excited whenever a matter comes before the High Court (as it does not occur very often), this decision is unlikely to have large impact. At the end of the day, the child referred to the donor as “Daddy”, all parties agreed at birth that he would be included on the birth certificate as the child’s Father, and in all respects was the Father of this child. This decision has no impact on children conceived by donors who are not known to the child. Arguably this decision will also not apply to donors who are involved in the child’s life however do not play the role of Father.

Even if Mr Masson was not considered the child’s parent, he could have still applied for parenting Orders under the Family Law Act, as a person “concerned with the care, welfare and development of the child”.[iv] In those circumstances it would be unlikely he could restrain the Mother from relocating however he could in the least obtain orders that allow him to spend time with the child.

What to do if you are considering conceiving a child through the use of donor material

It is important to seek legal advice and have your intentions for the parenting of the yet to be conceived child set out clearly in an agreement with all interested parties. If it is agreed that the donor Father will know and spend time with the child, it is important boundaries are set so that the donor is not considered to be the child’s Father, as this could affect his liability to pay child support, and decision making abilities in the future.

[i] Masson v Parsons [2019] HCA 21.

[ii] Section 60H.

[iii] Status of Children Act 1996 (NSW), sec 14(2).

[iv] Section 65C(c).