The use of IVF treatment and sperm donation to conceive a child has increased in recent years.
In cases where the sperm has been donated by a person known to the mother and/or her partner, the donor is likely to have regular contact with the child. This raises the question of whether regular contact and interaction with the child means the sperm donor could be considered to be a 'legal parent' of the child? The High Court was recently asked to consider this question in the case of Masson & Parsons & Ors.
The sperm donor, Mr Parsons, and the biological mother, Ms Massons, had been friends for many years. In 2006, Mr Parsons agreed to provide his semen to Ms Massons so that she could conceive a child.
The process was successful and following the birth of the child, Mr Parsons' name was recorded on the child's birth certificate as the father.
Although the child lived with Ms Massons and her partner, referred to as the second respondent, Mr Parsons took his relationship with the child seriously. He financially supported the child and had an ongoing role in the child's health, education and general welfare. In addition, he also spent time with the child on a regular basis. Mr Parsons' relationship with the child was described as "...as an extremely close and secure attachment relationship...".
Mr Parsons believed he was the father of child and as the child's parent, he supported and cared for her.
In 2015, Ms Massons and her partner decided to relocate to New Zealand. Mr Parsons objected and filed Court proceedings to prevent the mother from relocating overseas with the child.
In his application to the Court, Mr Parsons also sought Orders for he and Ms Massons and her partner to have 'equal parental responsibility for the child' (meaning that he and Ms Massons and her partner jointly make any long-term decisions concerning the child) and to spend regular time with the child.
The Trial Judge was asked to decide first, whether the mother's partner was a parent of the child and secondly, whether Mr Parsons was a parent of the child.
Was the second respondent a parent?
To answer this question, the Trial Judge considered section 60H(1)(d) of the Family Law Act 1975 (Cth) ('the FLA') which provides:
"if a person other than the woman and the other intended parent provided genetic material – then that child is not the child of that person."
Although the mother and her partner were in a relationship at the time, the Trial Judge concluded that they were not living in a de-facto relationship when the child was conceived and for this reason, determined the second respondent was not a parent.
Was Mr Parsons found to be parent?
The definition of a 'parent' is not defined in the FLA. However, pursuant to section 69R of the FLA, a person is presumed to be the parent of a child if their name is entered as a parent of a child in a register of births or parentage information.
The Trial Judge also considered the Status of Children Act 1996 (NSW) ('the NSW State Act'), which was the relevant state legislation applicable to this case. The equivalent state legislation in South Australia is the Family Relationships Act 1975 (SA).
The NSW State Act states that:
- A de-facto partner can be presumed to be parent to a child born of a fertilisation procedure (if there is consent to the procedure); and
- If a woman (whether married or unmarried) becomes pregnant by means of sperm fertilisation obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
The Trial Judge held that the presumption set out in the FLA, applied and overruled the presumption set out in the NSW State Act.
It was determined that Mr Parsons was a parent within the ordinary meaning of the word 'parent' and therefore a parent for the purpose of the FLA for reasons including that he:
- Was the biological father of the child;
- Was listed on the birth certificate;
- Provided his genetic material for the express purpose of fathering a child whom he expected, and subsequently did, help parent.
An Order was made for Mr Parsons to have 'equal shared parental responsibility' and spend time with the child.
Appeal to the Full Court of the Family Court
Ms Massons and her partner appealed the Trial Judge's decision to the Full Court of the Family Court ('the Full Court').
The Full Court reversed the Trial Judge's decision and applied the NSW State Act which "irrebuttably presumed (a person such as Mr Parsons) not to be the parent of the child". Therefore, the Full Court concluded that Mr Parsons was not a parent of the child.
Appeal to the High Court of Australia
Dissatisfied with the decision of the Full Court, special leave was granted for Mr Parsons to appeal to the High Court. On appeal, Mr Parsons sought that the Orders of the original Trial Judge be upheld.
In a landmark case, the High Court overturned the decision of the Full Court and stated:
"...to simply characterise the appellant [Mr Parsons] of the child as simply a ' sperm donor' suggested that the man in question (the appellant) had relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is therefore to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case."
In reaching the decision that the High Court did, it carefully considered the facts of the case, including Mr Parson's understanding, at the time that he provided his semen, that he would be the child's parent, as well as his regular and ongoing involvement in the child's life since her birth. In this case, the fact that Mr Parsons did more than just provide his sperm to facilitate an artificial conception procedure meant he was held to be a parent.
The effect of the High Court making an Order that Mr Parsons and Ms Massons have 'equal parental responsibility' of the child is that Mr Parsons and Ms Massons now jointly share the duties, powers and responsibilities in relation to the child.
Mr Parsons and Ms Massons are required to consult with each other and reach agreement in regards to the child's education, religion and cultural upbringing, health, name and any changes in the child's living arrangements that make it significantly more difficult for the child to spend time with Mr Parsons.
Crucially, the child will not be able to relocate to New Zealand, unless it is agreed to by Mr Parsons or ordered by the Court.
How does this case affect surrogacy matters and sperm donors?
The impact of this case on surrogacy matters, both past and present, is still uncertain at this stage.
The High Court held, due to the circumstances in this particular case, it was unnecessary to decide "whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that result in the birth of a child falls within the ordinary accepted meaning of the word 'parent'".
This recent decision could result in women choosing to conceive a child with the assistance of an anonymous sperm donor because of perceived risks of asking a man who is known to them and likely to be involved in the child's life.
It also raises questions as to whether sperm donors may now actively search for and track down the biological mother and request an active involvement in the upbringing and care of the child. Failing agreement with the biological mother, the sperm donor could commence Court proceedings seeking Orders similar to those sought by Mr Parsons. Our view is that the outcome of any application brought by a sperm donor will depend on the specific facts and circumstances surrounding that case.
Should the Court determine, in a particular matter, that a sperm donor has 'equal shared parental responsibility' with the biological mother, then both the sperm donor and the biological mother will need to consult with each other and reach agreement in relation to the long-term matters pertaining to the child.
If ordered by the Court, the sperm donor could be introduced to the child and spend regular time with the child.
From the perspective of sperm donors, if the Court deems them to be a parent, this could expose the donor to ongoing financial obligations, such as child support, and even to a claim to their estate upon their death.
While it is too soon to ascertain the real impact this case will have on parties who wish to conceive a child through artificial insemination procedures it is advisable for all parties intending to enter into such arrangements to be clear about their intentions regarding any child born from the fertilisation procedure from the outset.
Discussions regarding the involvement of the sperm donor in the child's life, if any, and registration of parentage should be had from the outset and an agreement should be reached before proceeding. The agreement should be clearly documented in a sperm donor agreement.
Women using a fertility clinic and anonymous sperm donors should ask what the clinic's internal policies and procedures are regarding disclosure of personal information to potential sperm donors and any agreements by the clinic between the parties.
At this stage, questions still remain about whether the law will need to be changed to provide greater certainty for parties wishing to enter into such arrangements.
Sperm donation and surrogacy matters can be complicated under current legislation and as this case shows, remain a grey area. Should you have any questions about the impact this case might have on your circumstances or if you need advice on documenting a sperm donor agreement, please contact a member of our experienced family law team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.