A landmark decision handed down by the High Court recently provided clarity in a sperm donor case and determined that there are circumstances in which a person who provides genetic material in an artificial conception procedure, may be found to be a parent of the resulting child under the Family Law Act 1975 (Cth). The High Court held that whether a person is a ‘parent’ pursuant to the Family Law Act is to be determined by reference to ordinary, contemporary Australian understanding of the word, subject to any applicable provisions of the Family Law Act.
The decision in Masson v Parsons  HCA 21
On 19 June 2019, the High Court unanimously allowed the appeal in the above case against a decision of the Full Court of the Family Court of Australia. The facts concern the status of the Appellant, Robert Mason in relation to a child conceived by ‘informal’ artificial insemination with the first respondent, Susan Parsons, with the High Court reinstating the decision of the trial Judge, Masson & Parsons & Anor  FCA789, which held that Robert was the child’s parent.
Robert and Susan were friends for many years. In 2006 they conceived a child together, by “informal” artificial insemination. The child was born in 2007. As part of a wider dispute pursuant to the Family Law Act over the parenting of that child, Susan and her wife, Margaret (the second respondent) challenged Robert’s status as a legal parent.
At the time when Robert and Susan conceived a child together, Susan was in a relationship with Margaret, but it was not a de facto relationship. Susan gave birth to Robert’s biological child in 2007, and Robert was named as the child’s parent on her birth certificate. The following year, Susan gave birth to another child, with that child being conceived by artificial insemination using sperm anonymously donated in the United States. By this time Susan and Margaret were living together with Margaret taking Susan’s surname, and Margaret was named as a parent on this child’s birth certificate. Justice Cleary noted that both children referred to Robert as “daddy” and at the time of the hearing, the second child had only recently learnt that Robert was not her biological parent.
Justice Cleary found that in 2015 the relationship between the parties began to deteriorate. In response to Robert’s parenting application, Susan and Margaret sought to have Robert’s name removed from the child’s birth certificate and replaced with Margaret’s name instead, and that Margaret be declared the parent of the first child and permitted to relocate to live in New Zealand with their two children.
While it is accepted that Robert was not the legal parent of the second child, the aspect of the dispute before the High Court concerned whether Robert was a parent of the first child. Adopting an extensive view of who may be a parent pursuant to the Family Law Act, resulting in Susan and Margaret being denied permission to relocate. The Court ordered equal shared responsibility with Robert.
The effect of the decision
Whether or not a person is a legal parent of a child impacts upon whether they have parental responsibility for their children (section 61C of the Family Law Act). It also affects the applicability of different sections of Part VII of the Family Law Act. Parental status does not, however, impact upon a person’s capacity to seek parenting orders in relation to a child (section 65C of the Family Law Act) and, indeed, make no difference to the outcome of a parenting dispute. Parental relationships per se are not privileged under the relationships in a child’s life, Aldridge v Keep  42 FAMLR 369. Legal status as a parent may also have a little or no impact on how the children perceive their relationships with different people.
Under the Family Law Act, the Family Court of Australia presumes the best interests of a child is served by shared parental responsibility – where sections 60H of the Family Law Act provides the Rules in respect to the parenting of children. In this case, Robert provided not only the semen to Susan to conceive the child, he also had an ongoing role in the child’s financial support, health, education and general welfare and enjoyed an extremely close attachment with the child. Essentially, the High Court found that there was an intention for Robert to be involved in the child’s life and therefore Robert fell within the definition of ‘parent’.
The High Court’s decision is a warning to single women, regardless of sexual orientation, who utilise donor sperm to conceive a child.
As a result of this decision, many people wanting to conceive using donor sperm may be more likely to use an anonymous donor with no contact with the donor.
Persons wanting to use a known donor to conceive a child, it is imperative that all the parties involved have a full and thorough discussion about their intentions, as to the role the donor will have which should be put in writing and signed by all parties, in the event that a dispute arises.
For more information, contact us to speak to our specialist Family Lawyers in Sydney.