If you are planning to conceive using a sperm donation, or plan to be a donor, you should be aware of the legal implications. One of the issues to be addressed is:-
Will the sperm donor have an ongoing relationship with the child, and will the donor be regarded as a “parent”?
This question came before the High Court of Australia recently in the recent case of Masson v Parsons [2019] HCA 21. The High Court here decided that a sperm donor can be a parent, noting that there is no definition of what is a “parent” in the Family Law Act 1975 (“the FLA”).
Masson v Parsons [2019] HCA 21
The Facts
In 2006 the appellant provided his semen to a close friend to artificially inseminate herself. At the time he believed that he would be involved in the child’s life, by fathering the child and providing financial support. His name was entered on the birth certificate. The child lived with the mother and her female partner. The donor, however, continued to play an ongoing role in the child’s life, financially supporting the child and “enjoying a close and secure attachment relationship with the child”.
In 2015, the mother and her partner decided that they wished to relocate to New Zealand with the child. The donor filed an application in the Family Court, seeking to restrain the mother from relocating. He also sought an Order that the child spend substantial and significant time with him.
Earlier Decisions
Cleary J. found that the donor provided his genetic material for the express purpose of fathering the child and that he expected to help the parent by providing financial support and care. She concluded that s60H of the FLA is not an exhaustive list of the persons who may qualify as a parent and that the donor was a “parent” of the child within the ordinary meaning of that word.
In the Full Court, Thackray J. – contrary to the primary judge’s reasoning – held that Section 14 Status of Children Act (NSW) applied as if it was a law of the Commonwealth. S 14 of the Status of Children Act reads:
(2) 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.
Any presumption arising under subsections (1) – (3) is irrebuttable.
The Full Court decided that the appellant was to be irrebuttably presumed not to be the parent of the child.
The High Court Decision
In a majority judgment, the High Court held that state laws applied only where there was a gap in the law governing the exercise of federal jurisdiction. However, the Court found that there was no gap here and that the FLA provides comprehensively for how the Family Court is to determine who is a parent.
The Court also dismissed any suggestion that the father was merely a sperm donor and stated:
“To charactise the biological father of a child as a sperm donor suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case”.
The High Court found that ss 60G and 60H of the FLA are not exhaustive as to the persons who qualify as parents of children born of artificial conception. According to the High Court, the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. It found that the donor was a parent within the meaning of the FLA.
Summary
In essence, every sperm donor arrangement is unique. As the High Court has decided, the outcome of your matter will depend on the individual circumstances of your situation. We, therefore, encourage you to seek legal advice, before entering into a sperm donor arrangement. Dimocks Family Lawyers are able to assist you in preparing a sperm donor agreement, or by simply providing you with advice and guidance as to your rights and responsibilities as a donor, or donor recipient.
Contact us today to book an initial consultation with one of our lawyers. 02 9221 8390
