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Are Sperm Donors Parents? : Masson v Parsons & Ors [2019] HCA 21

The High Court today ruled that in certain circumstances sperm donors may be recognised as the legal parents of children born of their genetic material via artificial reproductive technology. These circumstances are where the Mother is not in a married or de facto relationship at the time of the child’s conception, and where the sperm donor should properly be regarded as the child’s parent according to the ordinary meaning of the term ‘parent’. This takes into account the facts of the case, such as intentions of the parties in relation to parentage, and the role the sperm donor has played in the child’s life. The decision overturned the previous decision of the Full Court of the Family Court of Australia.

Facts of the Case

The child, ‘B’, was born via artificial insemination to Ms Susan Parsons (the first respondent). The appellant, Mr Robert Masson, was the biological father of B via sperm donation. Mr Masson was listed as a parent on B’s birth certificate and has played an active role in B’s life since birth, being known to B as ‘Daddy’. At the time of B’s conception, Susan Parsons was not in a de facto or married relationship, although she had commenced a relationship with Margaret Parsons (the second respondent), which subsequently became de facto in nature.

The major issue in the case was whether Mr Masson, a sperm donor, was a legal parent of B.

Full Court Findings

The Full Court of the Family Court held that as the Family Court exercised federal jurisdiction, s 79 of the Judiciary Act 1903 (Cth) must be applied. S 79 of the Judiciary Act provides that State law is binding on courts exercising federal jurisdiction, unless a Commonwealth Act ‘otherwise provides’.

The relevant State Act in this case was the Status of Children Act 1996 (NSW). Section 14 contains an irrebuttable presumption that where a child is born via sperm donation, and the sperm donor is not the mother’s husband, then the sperm donor is not a legal parent of the child. A similar provision is contained in the Victorian Status of Children Act.

The Full Court held that because s60H of the Family Law Act (‘FLA’), which addresses parentage of children born via artificial conception procedures, contains no requirement that sperm donors be recognised parents, the FLA is not inconsistent with the Status of Children Act, and leaves room for the Status of Children Act to apply.

As such, the Full Court held that since the Family Court exercised federal jurisdiction, by virtue of the Judiciary Act s 79, the Status of Children Act represented the law. The result was that Mr Masson was found not to be a legal parent of B, regardless of the parties’ intentions at time of conception and Mr Masson’s involvement in B’s life since.

Judgment of the High Court

On appeal, the High Court overturned the Full Court’s decision.

The High Court held that s 79 of the Judiciary Act only applies to ‘pick up’ certain State laws which govern the exercise of a court’s jurisdiction. S 14 of the Status of Children Act is not such a law, but rather a rule which determines parental status and applies independently of anything done by a court. Thus the Judiciary Act does not render this presumption of the Status of Children Act binding on the family law courts.

Further, the High Court held that the relevant provisions of the Status of Children Act could not be applied because the FLA has ‘otherwise provided’. This is because the FLA is ‘complete upon its face’, leaving no room for the Status of Children Act to operate.

The effect of s 60H is to expand rather than restrict the range of persons who may qualify as a parent of a child born via an artificial conception procedure. Where s 60H does not expand the meaning of ‘parent’, the natural and ordinary meaning applies, as it does throughout the rest of the Act where not specifically departed from. Thus even though s 60H of the FLA does not specifically mandate that sperm donors are recognised as parents, it does not exclude them from being recognised as such, where they fall within the ordinary meaning of ‘parent’.

The High Court held that the ordinary meaning of the term ‘parent’ is ‘a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand’.

In this case, Mr Masson was found to be a parent within the ordinary meaning of the term. Not only did Mr Masson provide his semen, but he did so on the understanding that he would be the child’s parent, he was registered as B’s parent on the birth certificate, he has provided financial support and has been involved in the child’s care since birth, and is regarded by the child and acquaintances as the child’s father.

It is possible that where a sperm donor does no more than provide his semen to facilitate an artificial conception procedure, he would not fall within the ordinary meaning of parent, and would therefore not be recognised as the parent of a child born as a result of the procedure, even where the Mother has no other partner at the time of conception. This is a matter that remains open to courts to decide on the facts of any particular case.

We invite you to contact our lawyers if you have any questions in relation to artificial reproductive technology and family formation.


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