Who is a parent? We look at a judgment of the High Court of Australia which explores sperm donors and their parental status.
Let’s start with a question:
Q. Is there not a difference between the university student who is a donor to a sperm bank for a few bob* and the sperm donor who plays a role in the life of the child?
High Court Justice Geoffrey Nettle
I would have answered, “Yes, of course, there is a difference.” However, others disagreed and the matter went all the way to the High Court. Although it was a NSW case, the Victorian government also argued the case (and lost). Rachel Doyle SC, appearing for Victoria, argued that “biology is not ever necessary or sufficient to establish the status of parenthood”.
In Masson v Parsons, the High Court considered the question of whether a man who had provided his sperm to a friend with the express purpose of conception of a child with whom he would remain involved, was a parent under the Family Law Act 1975 (Cth). The court heard that Robert Masson was an active parent of “B”, was listed as the father on the girl’s birth certificate and both she and another child who is not biologically related to him call Mr Masson “Daddy”. The matter had come to court as the child’s mother Susan Parsons had then entered a long term same sex relationship and the two women sought to move the family including “B” to New Zealand. Mr Masson sought to prevent”B” from being taken out of Australia.
The court affirmed the Full Court of the Family Court’s finding that Section 60H of the Family Law Act 1975 (Cth) is not exhaustive when setting out the persons who may qualify as a parent of a child born of an artificial conception procedure. Indeed the court held that the intention of the section is to expand rather than restrict the categories of people who may qualify as parent. The Court held that in these specific circumstances the Applicant was clearly B’s father and the same sex partner of Susan was not a parent of the child. The court remarked that the Family Law Act perhaps suggests that a child cannot have more than two parents but did not find it necessary to determine that issue one way or the other.
The court discussed at length the reasons that the corresponding New South Welsh legislation, being the Status of Children Act 1996 (NSW) was not applicable to the present case. The court’s reasons indicate that Part 3, Division 1 of that Act is entirely invalid as the Family Law Act 1975 (Cth) covers the field and is therefore the prevailing legislation in accordance with the Commonwealth of Australia Constitution. This decision thus may affect the Victorian Parliament’s legislation introduced on June 4th 2019 that purports to override the same section of the Family Law Act (Cth) requiring a married woman to have her spouse’s consent to any artificial conception procedure.
Who is a parent?
The High Court held that the ordinary meaning of the term ‘parent’ is ‘a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand’. Hope that helps. We get “the vibe”.
The opinions in this article are those of Chris Woods and the legal analysis are those of the main writer Sally O’Connor
*to those born after 1964 a bob is 20 cents or two schillings according to my parents.