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 is a leading Australian law firm based in Brisbane.
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