Australia: Who is your daddy - a sperm donor?

Despite the media frenzy, did the recent High Court decision, which named a sperm donor the legal father of a child, actually change how we define a parent in modern families?

The Masson and Parsons story

Robert Masson and Susan Parsons (the names given to them by the Court) were close friends. They were not, and had never been, in a relationship with each other. In 2006, Robert provided his semen to Susan so that she could artificially inseminate herself in the hope of conceiving a child.

Robert intended to play a role in the life of any child who was born. Susan became pregnant and gave birth to a daughter. Robert's name was entered on the child's birth certificate. Importantly, at the time Susan became pregnant, she was not in a de facto relationship with anyone.

Susan later commenced a de facto relationship with Margaret. Susan and Margaret had another child together during their relationship – Robert was not the biological father of the second child.

While the children grew up living with Susan and Margaret, Robert had an ongoing role in both children's lives. He provided financial support for his biological daughter, he took a role in her health and education and he had a close relationship with her. The child and her sister both called him 'Daddy'. He spent regular time with both children.

In 2015, Susan and Margaret decided they wished to move with the children to New Zealand. Robert opposed the move, given it would impact his relationship with his daughter. He commenced proceedings in the Family Court seeking various orders, including an order for equal shared parental responsibility and a restraint preventing the child from relocating to New Zealand.

Robert won, then he lost

Initially, Robert was successful in securing an order preventing the child's relocation to New Zealand. The Judge held, among other things, that Susan and Margaret were not in a de facto relationship at the time the child was conceived, and that Robert was the child's parent.

The Judge made orders that Margaret and Susan have equal shared parental responsibility for the child, but that they were required to consult Robert before making any 'long term' decisions and that they be restrained from establishing a residence for the children in New Zealand without Robert's consent.

Susan and Margaret appealed the decision, which was determined by three judges of the Full Court of the Family Court.

The Full Court found in favour of Susan and Margaret, deciding that Robert was not the child's parent. The Full Court determined that there was a gap in the law which was to be applied in the Family Court and, therefore, that the state legislation, as set out in the Status of Children Act 1996 (NSW) (SCA), applied.

The impact of that determination was that Robert could not have been the child's parent as the SCA expressly provides an irrebuttable presumption that, if a woman (whether married or unmarried) becomes pregnant by way of a fertilisation procedure using sperm from a man who is not her husband, the man is presumed not to be the parent of any child born as a result of the pregnancy.

Robert was then given leave to appeal the decision of the Full Court of the Family Court, to the High Court of Australia.

The High Court

The High Court was primarily asked to consider a question of administrative law – whether there was a gap in the law that would mean sections 14(2) and 14(4) of the SCA applied to applications for parenting orders under the Family Law Act 1975 (Cth).

If the provisions of the SCA applied, Robert was not the child's parent.

The High Court held there was no gap in the law and, therefore, the SCA did not apply in this instance.. In practical terms, this meant Robert was a parent of the child.

The judgment contains a detailed discussion of the administrative law and constitutional law issues which were considered by the High Court. However, for the purposes of the headlines, the outcome was that, in this case, the Family Law Act 1975 (Cth) (FLA) did not limit the categories of people who could be deemed to be parents.

The sperm donor was the child's dad and, therefore, was entitled to be consulted about major decisions in the child's life, including whether she relocated to New Zealand.

Food for thought

We can't help but wonder what the outcome would have been if Susan and Margaret had been in a de facto relationship at the time the child was conceived. If they had been, and if Margaret had consented to the artificial conception procedure, the Judge at first instance may have determined that Robert was not a parent of the child.

It is an important quirk of timing.

If Susan and Margaret had been in a de facto relationship at the time of the artificial conception, the FLA would have expressly provided that Robert was not the parent.

But what about the fact that Robert's name was entered on the birth certificate? It is presumed that persons named on the birth certificate are the parents. However, if that presumption conflicts with the law about artificial conception noted above, then it would not apply – the general presumption about the birth certificate is trumped by the strict rule.

Perhaps the real issue is that the law makers have not yet contemplated that a child may have more than two parents. Has the law simply failed to keep up with what happens in modern families?

In some circumstances, it may be in a child's best interests to determine there are three parents who all have a meaningful involvement in that child's life.

The object of the law in this area is to ensure that any parenting order made reflects what is in a child's best interests. However, sections in the FLA list principles about children having the benefit of 'both' parents, suggesting (as was noted by the Court in this case) that a child cannot have more than two parents within the meaning of the Act.

In the original decision, the trial Judge made it clear that, while biology was relevant, it was also significant that Robert believed he would take on the responsibilities of parenthood, had an intention to be involved in the child's life, and that he played an active role both socially and financially.

So, what if there are three people in a child's life who qualify as a parent according to the contemporary Australian understanding of that word? Was it consciously intended that the FLA would exclude one of those people as a parent of the child?

The obvious example is a married or de facto couple with a friend who provides sperm to inseminate one of the parties but then takes an active part in the child's life, establishing and maintaining a fatherly attachment to the child. If Susan had been in a de facto relationship at the time she had conceived, those may have been the facts of this case.

It remains to be seen whether the reference to 'both' parents in the FLA could even be amended to contemplate a child having more than two parents.

What do you think? Is the use of the word 'both' parents a deliberate prohibition on the development of modern family units?Is the largely traditional format of two parents for a child likely to be the status quo for a time yet?

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Coleman Greig Lawyers
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Coleman Greig Lawyers
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions