A case is currently before the High Court concerning whether a man who donated sperm to a lesbian couple has standing to seek parenting orders over the child. Under New South Wales law, a sperm donor is not a parent. However, under the federal Family Law system, biological or non-biological parents may be recognised as legal parents.
Masson v Parson v Ors
The case concerns a lesbian couple, Susan and Margaret Parsons, who married in New Zealand in 2015. One of the women gave birth to two daughters conceived by artificial insemination. The girls live with the mothers but have regular contact with Mr Masson, a long term friend with whose sperm the older daughter was conceived. Masson is listed on both girls’ birth certificates although he is not the biological father of the younger girl. Both the girls call him ‘Daddy’ and he has been involved in their upbringing.
The mothers want to move back to New Zealand with the girls, but this is opposed by Mr Masson.
The Family Court decision
The Family Court made an order restraining the mothers from moving overseas, finding that at the time the older girl was conceived, the women were not in a de facto relationship and that the sperm donor was the girl’s second parent.
The matter subsequently became the subject of two appeals.
Appeal to the Full Court
The mothers appealed to the Full Court of the Family Court, arguing that Section 79 of the Judiciary Act 1903 required the court to apply the New South Wales Status of Children Act 1996, under which sperm donors are conclusively presumed not to be legal parents. Section 79 of the Judiciary Act states that state and territory laws are binding on courts exercising federal jurisdiction except as otherwise provided by the constitution or by Commonwealth laws. Section 14 of the Status of Children Act creates a series of presumptions relating to the parentage of children conceived through fertilisation procedures, including:
(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.
This act states that this presumption is irrebuttable.
The Full Court of the Family Court upheld the mothers’ appeal, holding that the state act applied unless a commonwealth act provided otherwise and that Section 14 must be applied. The sperm donor was therefore presumed not to be the father and the court held that he should not be treated as a parent for the purposes of the Family Law Act. The court rejected the argument advanced by Mr Masson that a child can have more than two parents.
Appeal to the High Court
The sperm donor appealed to the High Court, arguing that federal family laws should apply and that the question of who is a parent should not be determined solely by who provided the genetic material and who was in a relationship with the birth mother, but also who had participated in the child’s parenting.
Both the Attorney-General of the Commonwealth and the Attorney-General of Victoria intervened in the High Court appeal, with the Commonwealth Attorney-General backing Masson’s position. The Victorian Attorney-General has backed the mothers’ position, arguing that state laws preclude a sperm donor being recognised as a parent. It is arguing that this approach provides more certainty than the Commonwealth approach, which treats parentage as a question of fact to be determined on a case by case basis. This approach would make it difficult to determine who a child’s parents are at the time of its birth, when no social parenting has yet occurred. It also argued that it is unclear what level of involvement in social parenting would render a person a legal parent.
What is a parent?
The case has been hailed as an opportunity for the court to consider the difficult question of what it means to be a legal parent. This may require a consideration of the circumstances of the child’s conception and birth, the intention of the people who brought her into the world, who has functioned as her parents thus far and who she considers her parents to be.
Family law has lagged behind developments in assisted reproduction and the growing diversity of families in Australia. The laws around parentage are unclear because of a divergence in legal opinion as to how federal family law interacts with state and territory laws. The Family Law Council has acknowledged that the present framework does not reflect the reality of parenting in Australia.
The Family Law Act makes reference to ‘both parents’, which has been assumed to mean that a child can have a maximum of two parents. However, in other jurisdictions, such as British Colombia, children can have more than two legal parents.
It has been suggested that Masson v Parson may help shape reform of the Australian model of legal parentage.
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