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Published: 17 April 2019
Author: Ashleigh Kemp

Can a sperm donor be a 'parent'? High Court to decide

LGBTIQ+ Families: A new legal series by RCT Law

Ryan Carlisle Thomas Lawyers is proudly LGBTIQ+ friendly and this blog is the first in a series relating to family law issues for LGBTIQ+ families.

The recent case of Parsons and Anor v Mason 1 has brought into focus the definition of ‘parent’ when it comes to sperm donors. This is a developing area of law that in recent years has been particularly relevant to the LGBTIQ+ community.

If there was a disagreement between the mother and the known donor, there is controversy as to whether the donor can be recognised as a ‘parent’, which is the central issue in the case of Parsons and Anor v Mason, which is now being fought out in the High Court.

I examine the central issues at stake in this case and their implications for rainbow families.

A changing area

Changes in Victorian and Federal laws in the last ten years have made some aspects of LGBTIQ+ parenting rights clearer, but it remains a complicated area.

Research since the 1980s has shown that children of same-sex parents or ‘rainbow’ families are not disadvantaged when compared to children of heterosexual couples. 2 While LGBTIQ+ people have been raising families for decades, the law is now finally catching up and recognising this fact.

Legal status of birth/biological parents, couples, and donors

Although it takes a village to raise a child, in Australia a child can only have two ‘legal’ parents. The law now recognises non-biological parents of a child born via a donor. For couples who identify as lesbian, the biological birth mother is listed on the birth certificate, together with the other mother listed as ‘parent’, so long as the couple were in a relationship (whether married or de facto) prior to the pregnancy, and the non-birth mother consented to the procedure that resulted in the pregnancy.

This is the same as the legal status of heterosexual parents who use donor eggs or sperm to conceive. Lesbian couples now effectively have the same legal rights as heterosexual parents.

Donors not parents - generally

Donors are not recognised as parents under the law. Children who were conceived using an unknown donor's sperm from a registered clinic have the right to obtain the details of their donor when they reach 18. Of course, some parents may wish for their children to have contact with their donor before this time.

Some couples will choose to use a sperm donor that is known to them. It is important to note that if a child is conceived through intercourse, rather than a medical procedure, then the ‘donor’ would be considered a parent and have the rights of a parent, in favour of the same-sex partner of the birth mother.

As the donor is not a parent, they do not have any parental rights under the Family Law Act 1975. However, they may be considered someone with ‘an interest’ in the child’s welfare, similar to the status of step-parents or grandparents and can apply for court orders allowing contact with the child. This is unlikely to be granted if the child was conceived with unknown donor sperm from a clinic and the donor has had no contact with the child.

It is now considered a ‘false declaration’ to list a donor, even a known donor, as a parent on a child’s birth certificate. This is the case even for single women.

Of course, you may still wish for the donor to have a role in your child’s life and if so, could formalise the arrangement in court parenting orders by consent. If there was a disagreement between the mother and the known donor, there is controversy as to whether the donor can be recognised as a ‘parent’, which is the central issue in the case of Parsons and Anor v Mason. 3

Parsons and Anor v Mason

In this case, the Parsons (not their real names) are a female couple who have two children, called B and C. Susan Parson is the biological mother of the children, who were conceived via artificial insemination. Robert Masson (not his real name) is the biological father of B and listed on her birth certificate. Both B and C call Robert Masson ‘daddy’. The biological father of C is an unknown donor, and Margaret Parsons is therefore deemed to be the second parent and is listed on C’s birth certificate as such.

The facts of the case show that communication between the Parsons and Robert Masson broke down and ultimately led to family law proceedings when the parties could not agree as to arrangements for B and C, in particular, the Parson’s wish to relocate to New Zealand. If Robert Masson is found to be a ‘parent’ then his rights under the family law may prevent the couple relocating.

If there is a conflict between Commonwealth legislation and state-based legislation, the Commonwealth law trumps the state legislation. Unfortunately, in this case, Commonwealth legislation 4 is silent on the definition of ‘parent’, which means there is a gap in the law. This has been an issue flagged by LGBTIQ+ groups for some time. Under the NSW legislation, there is a presumption that a donor is not a parent.

The first case

Robert Masson applied to the Court for a ruling he was a ‘parent’ of B and was successful at first instance. 5 Part of the basis of this was the Judge’s finding that Susan and Margaret Parsons were not in a de facto relationship at the time of the conception of B.

Robert Masson and Susan Parsons had been close friends for a number of years and the Judge preferred the evidence of Robert Masson, which was that they had intended to conceive a child and co-parent together, with Robert Masson taking on a parenting role. 6 Susan Parson’s evidence was that there was no intention for him to take on a parenting role. 7

While the Court found Robert Masson was B’s parent, it also held it would be in the best interests of the children if Susan and Margaret Parsons continued to make long term decisions about their future, in consultation with Robert Masson. 8 The Court, however, ordered that the children continue to live in Australia and not New Zealand. 9

The Appeal

The Parsons then appealed this decision, and the finding that Robert Masson is a parent of B. 10 On appeal, the Court ultimately found that there was no legal basis on which Robert Masson could be a parent of B. This is because there is a presumption in the NSW legislation that sperm donors are not ‘parents’, and the Commonwealth legislation, which would ordinarily trump the NSW legislation, is silent on this issue.

The arguments advanced for both sides are complex and technical. Interestingly, one of the arguments advanced by Robert Masson during the appeal was that the Commonwealth Act could be seen as potentially contemplating that a child can have more than two parents.

The rigid two-parent model has previously been criticised in the context of LGBTIQ+ families for failing to account for the different and often complex nature of rainbow families. 11

It is important to note that despite Robert Masson being found not to be a ‘parent’ of B, he is still considered a person concerned with the welfare, development and care of the child, and is therefore able to apply for parenting orders, including orders that the Parsons be restrained from relocating to New Zealand.

The Appeal Court referred the matter back to the original court to make orders regarding the care of B.

The High Court Case

Robert Masson has been given permission to appeal the finding he is a not a parent within the meaning of the legislation, to the High Court. The High Court will hear the case starting on 16 April 2019. The decision could have far-reaching consequences, not just for the LGBTIQ+ community, if Robert Masson is successful.

For example, single women (whatever their sexuality) who use a donor to conceive a child, may be unable to prevent a known donor claiming to be a parent and having a role in the child’s life, even if the original intention was for her to raise the child alone.

Argument for both sides was heard on 16 April 2019, and the handing down of the High Court’s decision is being keenly awaited. This blog will be updated when it is available.

1. Parsons and Anor v Mason [2018] FamCAFC 115

2. 'Rainbow families and the Law: an information kit for same-sex couples and single people in Victoria'

3. Parsons and Anor v Mason[2018] FamCAFC 115

4. Judiciary Act 1903 (Cth), applying the Status of Children Act 1996 (NSW)

5. Masson & Parsons and Anor [2017] FamCA 789

6. At 121 - 125

7. At 127

8. At 476

9. At 477

10. Parsons and Anor v Mason [2018] FamCAFC 115

11. Submission in response to Review of the Family Law System, Rainbow Families Advocacy Team.

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