Insights and Inspiration
Did the High Court finally decide that a sperm donor is a legal parent?
20 June 2019
Robert Mason and Susan Parsons had been long-time friends when Robert agreed in late 2006 to donate his sperm to Susan. This was arranged privately and informally and their daughter was conceived. Robert believed he was fathering the child who he would care for both financially and physically in the future.
Robert helped raise and support his daughter. He was closely involved with her from the time she was born. He was named as her father on her birth certificate and she grew up calling him daddy. Amongst other things Robert would take her to ballet lessons and volunteered at her school canteen.
The child lived with Susan and her then new partner Margaret. Susan and Margaret had a child together the following year. Susan and Margaret married in 2015 in New Zealand and all went well until they wanted to take the girls to live with them in New Zealand when they were then aged 10 and 9.
Robert commenced proceedings in the Family Court for orders including an order for shared parental responsibility between himself, Susan and Margaret.
In 2017, Justice Cleary of the Family Court prevented them relocating. She found that Susan and Margaret weren't in a de facto relationship when the child was conceived. The Judge recognised Robert as a parent under the Family Law Act (a Commonwealth Act) dealing with children born via artificial insemination procedures.
The mothers appealed the decision to the Full Court of the Family Court. On appeal the mothers argued that the Judge had failed to consider a NSW Act which states that "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 result of the pregnancy."
The Full Court agreed with the argument and found that the NSW Act must be applied when questions of parentage arise in a federal court. Robert then appealed to the High Court. He argued, amongst other things, that there should be no rigid rules governing who is a parent. Instead, he argued that the federal family law should be applied. He said the question of who is a parent should be determined on a case-by-case basis with reference not only to who provided the genetic material to create the child but also who had participated in the parenting of the child.
The High Court found that there was no reason to doubt the original Judge's decision that Robert was a parent of the child. The Court concluded that the federal Act definition of a parent was not exhaustive. The question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of "parent".
In this particular case, Robert had clearly demonstrated that in addition to being a sperm donor he had ongoing involvement and a relationship with his daughter.
The case has left open what level of parenting one will need to show before a sperm donor will be elevated to the status of a parent. At the same time the case gives reassurance to a donor like Robert that the other parent cannot unilaterally decide to take the child away from them at a whim; ensuring the best interests of the child remain overriding.
In this case the High Court took a sensible approach given Robert's level of involvement in raising his daughter. This decision won't open the floodgates of rights and obligations flowing for sperm donors. We won't see all anonymous sperm donors who have never had a relationship with their biological children now able to bring proceedings to seek that they be acknowledged as a parent of the child.
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