April 2019 | Helen Freidman – Legal Consultant

With the passing of the 2017 amendments to Australia’s Marriage Act, marriage in Australia is no longer confined to a “union between a man and a woman”, but allows marriage between “two people” regardless of their gender.

Despite the equality and certainty this affords same-sex couples who wish to marry, there remain many uncertainties about the parentage of children born into these unions.

Increasingly, same-sex couples (whether married or de facto) have been relying on surrogate birth mothers and sperm and egg donors to allow them to have children. Meanwhile, the legal system is struggling to keep up with the parenting issues in this space.

The legal situation is complex. Under Australian law a child can have a maximum of two parents. At a practical level, this fails to reflect the common reality that a child has more than two significant adults in his or her life.

An example is a married or de facto lesbian couple that decides to have a child by way of a “fertilisation procedure” such as IVF or artificial insemination where the sperm is donated by a third-party male. NSW law creates a presumption in this case that in addition to the birth mother, the “other woman” in the lesbian relationship is the parent of the child born. In other words, the donor father is presumed to have no parenting rights under NSW law.

This was the situation that faced a sperm donor “father”, Robert Masson. In 2006 Mr Masson and his friend, Susan Parsons, parented a daughter by way of artificial insemination. Although the child always lived with Mrs Parsons and her partner, Margaret, Mr Masson was listed on the child’s birth certificate and enjoyed an extremely close and ongoing relationship with the child who called him “Daddy”.

The legal parentage issue arose in part because Susan and Margaret Parsons wished to relocate to New Zealand with the child. Mr Masson applied to the Family Court for parenting orders to preserve his relationship with the child. However, the Full Court of the Family Court found that because of the NSW law mentioned above, Mr Masson was not the girl’s “parent” under the Federal Family Law Act. If he had been, the Court would have taken Mr Masson’s official status as “parent” into account when deciding her “best interests”. For example, it may have ordered Mr Masson have “equal shared parental responsibility” with the child’s birth mother which may have prevented or placed conditions on her relocation.

The Full Court of the Family Court’s decision was appealed to the High Court and heard on the 16th and 17th of April. The High Court’s decision will be discussed in a future newsletter.

If you have or are contemplating having a child by way of an assisted pregnancy that relies on a surrogate birth mother or sperm or egg donors the law in this area can be complex. Contact us today on (02) 9231 2466 to speak to one of our experienced lawyers about your legal rights in this evolving area of the law.