Does Donating Sperm Mean You Have Parenting Rights?

The case of Masson v Parsons & Ors [2019] HCA 21:

Mr Masson and Ms Parsons were close friends for many years. Knowing Ms Parsons wanted children, Mr Masson donated his own sperm to her which she used in an artificial insemination procedure in 2006. At this time Ms Parsons was not in a legal relationship and Mr Masson believed he would be involved in the child’s life. Nine months later, Ms Parsons gave birth to a baby girl. Mr Masson was recorded as the child’s father on the birth certificate.

Ms Parsons entered into a de facto relationship and the child primarily lived with Ms Parson’s and her new partner. Mr Masson maintained his ongoing role in the child’s life by providing financial support, as well as support in her education, health, and general well-being. The relationship between Mr Masson and the child was described to the Courts as “extremely close.”

In 2015, Ms Parsons and her partner decided to permanently move to New Zealand, and intended on taking the child with them. Mr Masson relied on his parental rights and sought orders from the Family Court of Australia to stop the child’s relocation. The Judge in the Family Court found in favour of Mr Masson, acknowledging his parental rights, and ordering that the child not be taken overseas away from him.

Ms Parson’s appealed this decision to the Full Court of the Family Court of Australia, which is the next court of appeal in the system, and the decision was overturned.

The Full Court found that section 14 of the Status of Children Act 1996 (NSW) (the jurisdiction the matter was heard in), states that there is an irrebuttable presumption (presumption in law that can’t be contradicted) that if a child is conceived via artificial insemination with donated sperm from a man who is not the woman’s husband, the donator/biological father (in this case Mr Masson) is not a ‘parent’ and therefore has no parental rights in decisions surrounding the child. Mr Masson subsequently appealed this decision to the last court of appeal in Australia, the High Court.

The High Court looked at the Family Law Act 1975, which is Commonwealth Law, overshadowing state legislation. In particular, the High Court looked at section 60H of the Act, which lists the categories of people who can qualify to be a child’s parent if a child is conceived through artificial insemination. The Court held that the list of people who could qualify was not limited to that prescribed list, applying a broad interpretation to the law, they held that a person could still qualify as a child’s parent in the “ordinary meaning of the word” and to determine whether they could, they would need to look at the relevant facts on a case by case basis.

The substantial facts of Mr Masson’s case were that he was registered as a parent on the child’s birth certificate, he had donated his semen on the express understanding that he would be the child’s parent, and furthermore, the child in this matter identified Mr Masson as her father and referred to him as “daddy.”

It is a fundamental principle in family law that the paramount consideration of every case is the long-term well-being of the child. These were all very significant and relevant factors that the High Court considered when determining Mr Masson’s parental status.

It was found by the High Court that Mr Masson was a ‘parent’ within the meaning of the Family Law Act, and that he could seek orders to keep the child in the country.

What does this outcome mean for future parenting cases?

The High Court decision has significantly impacted on the relationship between Commonwealth and State Laws which apply to parental issues surrounding artificial insemination. The interpretation of the Federal Act now recognises a broader range of people who can legally identify as a child’s parent, including sperm donors in cases where the biological mother did not have a spouse at the time of conception.

The court’s decision shows that if a sperm donor is to claim parental rights to a child, each case will turn on its own facts.

The decision does not open the flood gates for anonymous donors who have had no ongoing relationship with a child to appear suddenly to claim their right to make parental decisions about the child. However, it does show that known sperm donors, who have an ongoing role in a child’s life, may find that they are the “legal parent” of the child, whether that was their initial intention or not.

This case illustrates the importance of an express agreement and clear future plan between all parties in cases where a sperm donation is being made by a known person.

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