Soon the High Court of Australia will hand down a Judgment in Masson v Parsons & Ors, a case addressing sperm donation and legal parentage.
Susan and Margaret Parsons, a lesbian couple, conceived a child by artificial insemination. Susan, the birth-mother, used sperm from a known donor, Robert Masson (all names used are pseudonyms). Masson’s name appeared on the child’s Birth Certificate, and Margaret Parsons was listed as an “other parent”.
At the time of conception, Masson believed he would be fathering the child, and would be providing physical care and financial support for the child. Since that time, Masson felt committed to looking after the child, as well as her sister, who was conceived using an unknown donor.
Seeking to relocate to New Zealand with the children, Susan and Margaret – the Applicants – initiated proceedings in the Family Court of Australia. Masson – the Respondent – objected to the proposed relocation.
The Family Court
The initial decision by the Family Court focused on Masson’s active role in the children’s lives. Since the Applicants were not in a relationship at the time of conception, the Court found that Margaret was not the child’s legal parent. However, noting that “biology is part of the answer”, the Court concluded that Masson was a legal parent.
Susan and Margaret Parsons were denied permission to relocate. The Court ordered equal shared responsibility with Masson.
Appeal to the Full Court of the Family Court
The Applicants appealed the matter, arguing that the primary judge had failed to apply the relevant law when it determined that Masson was a legal parent of the child. According to section 14(2) of the Status of Children Act 1996 (NSW):
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.
On this basis, the Full Court determined that Masson was not the child’s parent.
Appeal to the High Court
Masson subsequently appealed to the High Court of Australia, where the matter is still pending.
Australian family law judgments tend to emphasise the value of both parents having a meaningful relationship with their children. As such, the outcome will likely hinge on the question – who are the child’s parents?
The Family Law Act 1975 (Cth) does not define the term “parent” exhaustively. Accordingly, the High Court judgment could potentially challenge current interpretations of what it means to be a parent.
It is generally presumed, in artificial insemination cases, that intended parents (i.e. non-biological mothers like Margaret) are legal parents. Also, known sperm donors are usually precluded from parental recognition and responsibility, regardless of the parties’ intentions.
However, if it is found that the parties intended Masson to be a significant part of the child’s life, the Court may uphold the parenting order on the basis that Masson is a “person concerned with the care, welfare or development of the child”.
Although the Court’s key focus is on the “best interests of the child”, it has not yet asked the children who they consider their parents to be.
The outcome of this case will have a pronounced effect on future judgments in artificial insemination cases. Currently, the Family Law Act 1975 (Cth) presupposes that children have a maximum of two parents. This is an outdated view and does not reflect the increasing diversity of Australian families.
The Commonwealth Government has intervened in the case, arguing that the term “parent” should sometimes include sperm donors who are not married or in a de facto relationship with the biological mother when a child is conceived. If this is accepted, single women may struggle to exclude known sperm donors from a parental role in their child’s life.
It is now up to the High Court to sort through all of these issues and reach a judgment that is in the best interests of the children, while appropriately reflecting modern Australian standards.
If you are experiencing any family law or parenting issues, call Greg Martin or Jacqueline Wainwright on 02 9687 9322.