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Sperm donor or “parent”?

Thursday 4th July 2019

By: Jacob Clancy

On 19 June 2019 the High Court of Australia delivered judgment in the case of Masson v Parsons.

The decision finally determined that the Appellant “Robert”, who had provided sperm to a friend, “Susan”, so she could conceive a child, was a “parent” of that child.

As such, Robert had conferred on him all the rights and obligations that ordinarily accompany parentage in the eyes of the law. This includes the right to be involved in all long term decisions in relation to the child.  It will also include financial obligations such as to pay child support.

The case arose after Susan and her partner “Margaret”, who were not in a relationship at the time of the sperm donation or birth of the child, sought to relocate from Australia to New Zealand.  Robert brought proceedings under the Family Law Act (Cth) restraining the child from moving without his consent.  Robert won in the Family Court in the first instance. Susan and Margaret appealed to the Full Court of the Family Court.

The Full Court of the Family Court found that the sperm donor father was not a parent, on the basis that the birth mother and her wife were not de facto partners as at the date of conception.

However, the High Court rejected that decision and found that the question of whether or not a person was a “parent” under the Family Law Act is a question of fact and degree, which is determined according to the “ordinary, contemporary understanding of a “parent” and the relevant circumstances of the case at hand”.

The facts of the case were that Robert provided sperm to Susan with the belief that he would be a significant person in the child’s life, and one akin to a father figure.  He was listed as the father on the child’s birth certificate. Once born, Robert did have a substantial and meaningful relationship with the child. They spent regular time together, including overnight time. Robert volunteered at the child’s school.  He also provided financial support for the child. 

In this case Robert was the Applicant and was actively seeking to be the parent of the child. He was listed as the father on the child’s birth certificate. He had always intended to be the child’s parent. Both Robert and Susan agreed as much at the outset.

This decision makes it clear that sperm donors who play an active role in the child’s life are likely to be recognised as a “parent” of the child. 

However, it is unclear whether the same finding would apply to a sperm donor who had little or no meaningful involvement in the child’s life and the mother and donor had never intended for the donor to have such a relationship. Ultimately, it remains to be seen how influential those individual facts were, until such time as a further or different ruling is made with a new strata of facts and circumstances.

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