Are sperm donors parents? Masson v Parsons

High Court decision highlights need for careful planning before conception

If you are thinking about using donor sperm to conceive, what do you need to consider legally? This question is at the heart of a recent High Court decision the implications of which I discuss in this blog.

Many were keenly awaiting the High Court decision of Masson v Parsons¹, handed down on 19 June 2019, hoping for a definitive answer to the question: are sperm donors parents?

In short, the High Court’s ruling says “sometimes”. For some background of the facts of this particular case, see RCT’s previous blog: Can a sperm donor be a 'parent'? High Court to decide.

The Court was required to undertake a complicated examination of the relevant state and federal legislation and decide if state legislation or federal legislation applied. The state legislation creates a presumption that a biological father of a child conceived via an artificial conception procedure is not a ‘parent’. The federal law, while saying that a husband, same sex partner, or de facto partner, who consented to the artificial conception procedure, is a parent, is silent on whether or not a sperm donor is not the parent².

Finding

The Court found that the federal legislation applied and that the definition of ‘parent’ should be given the ordinarily accepted meaning in contemporary society. Of particular relevance was the fact that the donor who was ultimately found to be a parent, was listed on the birth certificate, paid child support, and was involved in the child’s life³. Essentially the Court made a factual finding that there was an intention for him to be involved in the child’s life, and therefore he fell within the definition of ‘parent’.

Disappointingly, the Court declined to decide if a man who only donates his sperm to facilitate an artificial conception, presumably without having an involvement in the child’s life, would fall within the ordinarily accepted meaning of ‘parent’⁴. This decision has left many uneasy – donors and mothers/families who have used donor sperm alike – about the legal status of who could be considered a ‘parent’ of the child.

Who will this decision affect?

Though the Court did not specifically comment on this issue, it is an accepted principle that couples, whether same sex or heterosexual, who use donor sperm to conceive a child, are the parents of that child – the birth mother for obvious reasons, and the other ‘intended’ parent are listed on the birth certificate.

In this situation, it is not likely that a known sperm donor who was never intended to take a parental role and who had no involvement in the child’s life, would be held to be a ‘parent’, and even less likely that an anonymous donor would be found a parent. This is because the law only recognises two parents.

However, a known donor, or an anonymous donor who later has contact with a child, if they have a relationship with a child, can make an application seeking contact through parenting orders, if they can establish they are someone with an interest in the care, welfare and development of the child (similar to the rights of grandparents).

The situation is even more unclear for single women (regardless of sexual orientation) who utilise donor sperm to conceive a child. This is because there is no other ‘intended parent’ who can be listed on the birth certificate.

I am thinking about using donor sperm to conceive, what steps should I take?

As a result of this decision, many people wanting to conceive using donor sperm may be more likely to use an anonymous donor. Certainly, from a legal standpoint, there is far less risk of an anonymous donor, firstly wanting to be a ‘parent’, and secondly, a Court finding they are a parent. The only way to be absolutely certain a donor could not later seek to be defined as a ‘parent’ is to use an anonymous donor, and have no contact with the donor.

However, many people are more comfortable with the donor being known to them, and the child having a relationship with the donor, that is not one of ‘parent/child’ but something else.

It is this grey area which is difficult for the law to regulate, given families can take many different forms in 2019 Australia, and relationships can change over time.

If you are 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, if any, and what will happen if, down the track, the situation changes. If the parties aren’t on the same page, it would be very unwise to continue with the conception.

If there is agreement, it is crucial to put these intentions into a donor agreement. Although a donor agreement is not a ‘contract’ that a Court can enforce, it will be an important piece of evidence if a dispute arises.

Ultimately, in Masson v Parsons, the Court accepted the evidence that there was an intention for the donor/father to have a parenting role, and in fact he did have a role in the child’s life. If the parties could show evidence that this was not the intention, such as with a donor agreement, the Court may have found otherwise.

However, the donor/father was involved in the child’s life with the blessing and support of the birth mother and her partner.

The case highlights the tension between the law and the reality of modern parenting.

While birth mothers, their partners (if they have one) can happily and lovingly raise a child now with assisted reproductive technology, including a known donors having a role if desired, if there is a dispute – in this case the desire of the birth mother and her partner to move overseas – the parties are left asking a legal system to make a black and white decision when the reality may be something in between.

1. [2019] HCA 21
2. Masson v Parson at paragraph 46.
3. Masson v Parson at paragraph 54.
4. Masson v Parson at paragraph 55.