“By biology, or by law, or a combination of both, certain people, take on the right and responsibilities of raising children, and are, or become parents”: Masson v Parsons [2017] FamCA 789, 46.
The question ‘who is a parent?’ is one that seems quite straightforward. However, the evolving science and technologies around fertility and artificial conception, differing family structures in our society and the increasing recognition of LGBTI families means that the answer is not always as clear as it may first appear. This is particularly relevant in families where a sperm donor has been involved in the conception of a child. On 19 June 2019, the High Court handed down a seminal judgment in the case of Masson v Parsons [2019] HCA 21 (“Masson v Parsons”), which changes the way we think about legal parenthood in sperm donor cases.
Background of the Case
In 2006, Robert Masson provided sperm to his long-time friend, Susan Parsons with the agreement and belief that he would be able to play an active role in the life of the child conceived using his sperm. The daughter, B, had Robert’s name listed on her birth certificate as her father. Since B’s birth, Robert was actively involved in her life, and had an ongoing role in B’s financial support, education, health and general welfare. B and her sister C (Susan’s child with an unknown sperm donor) called Susan “Mum” or “Mummy” and called Robert “Dad” or “Daddy”. They referred to Susan’s partner as “Margaret” and Robert’s partner as “Greg”. Both B and C regularly spent time with Robert and his de factor partner Greg, as well as meeting with Robert’s extended family.
In 2015, Susan and her de facto partner, Margaret Parsons, indicated that they intended to move to New Zealand with the children, aged 10 and 9 at the time. Robert commenced Family Court proceedings opposing the move and seeking Court Orders for parental responsibility for both B and C to be shared between him, Susan and Margaret.
In Masson v Parsons [2017] FamCA 789, the initial focus was on Section 60H of the Family Law Act 1975 (Cth) (“the Act”), which sets out rules in respect of the parentage of children born of artificial conception procedures. The primary judge, Justice Cleary, found that, pursuant to Section 60H of the Act, Margaret was not a legal parent of B as Susan and Margaret were not in a de facto relationship at the time of B’s conception. This left the door open for Robert to be considered as a parent of B. Cleary J held that Section 60H expands rather than restricts the category of people who could be parents of a child and accordingly, Robert was a legal parent of B within the ordinary meaning of the word and for the purposes of the Act. At 93-95 of Masson v Parsons [2017] FamCA 789, Cleary J said:
Being a biological parent is not the whole answer to the question who is a parent. Donors of eggs or sperm very often make express disclaimers…of future involvement in the life of a child. They do so in order to disclaim the rights, obligations and benefits of being a parent.
However where there is a challenge to a biological parent being a legal parent, as there is here, biology is a part of the answer.
In this case if the evidence supports a finding, as I have found that it does, that Robert took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care, then absent other legally disqualifying factors, he is a parent in the ordinary meaning of the word.
The mother, Susan, and her partner, Margaret, appealed the decision to the Full Court of the Family Court. The Full Court agreed that Section 60H of the Act was not exhaustive. As such, they considered the jurisdictional question of whether the Commonwealth law (under Section 79(1) of the Judiciary Act 1903 (Cth)) picked up and applied relevant state legislation regarding parenthood in these circumstances. The relevant state legislation in this situation was Section 14 of the Status of Children Act 1996 (NSW), which provides that a sperm donor is not a child’s parent. As such, the Full Court in Parsons and Anor & Masson [2018] FamCAFC 115, 90 and 92, noted that “in every case it is necessary to determine, as a preliminary question, which of the parties answers the description ‘parent’…if the wrong person is selected as a parent, then at that fundamental level, the case goes off on the wrong ‘premise’”. The appeal was therefore allowed.
Robert then applied to the High Court of Australia for special leave to appeal. Special leave was unanimously granted on 14 December 2018 and the matter was heard in April 2019.
The High Court Decision
On 19 June 2019, the High Court handed down their judgment in Masson v Parsons and ruled in Robert’s favour, that he was a parent of his daughter.
The majority of the High Court held that they had no reason to doubt Cleary J’s primary conclusion that on the facts of the case, Robert was a parent of B rather than merely facilitating an artificial conception procedure. In the combined judgment of Keifel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at paragraph 54, it was held that:
To characterise 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 also considered the jurisdictional question and found that there was no gap in the Commonwealth law as the Family Law Act covered all matters parenting-related and, therefore, the relevant state legislation was not applicable. The majority also commented that, had there been a gap, the state legislation was inconsistent with the Commonwealth legislation and according to Section 79(1) of the Judiciary Act 1903 (Cth) and Section 109 of the Constitution, the state law would have been deemed invalid for the purposes of this case. This therefore resolved the jurisdictional issue.
Overall, the High Court overturned the previous appeal and reinstated the initial Family Court judgment that ordered Susan and Margaret to live in Australia with B and C, and the Orders regarding parental responsibility and living arrangements.
Significance of Masson v Parsons
When a person is held to be the parent of a child, there is a follow-on effect that comes into play under the Act. The following principles must be given due consideration:
- By law, each parent has parental responsibility for the child, meaning that they have duties and authority in relation to the child.
- When making parenting Orders, the Court presumes that it is in the child’s best interests for the parents to have equal shared parental responsibility. This means that the parents will make major decisions about the child’s care, welfare and development jointly.
- If the parents have equal shared parental responsibility, the Court must then consider an appropriate living arrangement that is in the child’s best interests, and that is also practical.
- When making any parenting Orders, the Court must consider the child’s best interests as paramount. One of the primary considerations in determining the child’s best interests is the benefit to the child of having a meaningful relationship with each of their parents.
As is evident, the landmark decision in Masson v Parsons has changed the parenting landscape in regard to who may be considered as a parent of a child. Once the Court makes a finding that a person is a parent of a child, the above implications could mean that the mother must recognise that the biological father also has authority or rights over the child, regardless of the involvement of sperm donation. In effect, it could potentially mean that any woman who has conceived a child using sperm from a donor that is known to her while she is single, and who later allows or facilitates the donor to be involved in the child’s life, may find that the sperm donor is held by a Court to be the child’s father. Accordingly, the father would naturally be granted parenting rights.
On the flip side, the decision could mean that someone who would not traditionally be held to be a parent, such as a sperm donor, is granted the parenting responsibilities and authority that are due to them as a father. This may or may not be a welcome decision to the donor, given the responsibility and obligations that are involved with raising a child, including the possibility of paying child support or providing other means of financial support to the child.
In all circumstances, the High Court decision in Masson v Parsons illuminates that the key to whether the sperm donor is considered to be a parent of the child is the extent to which the person was involved in the child’s life. It will be interesting to witness the application of this seminal decision in future situations with known sperm donors, or fathers.
This is not legal advice.
Photo by Camylla Battani on Unsplash
