August 2019 | Ariza Arif
The nuclear family structure has changed, shifted and diversified over recent years with the use of sperm donation and in vitro fertilisation (“IVF treatment”).
In a previous article: “Can a child have more than two parents”, we discussed the decision in a recent case of Masson & Parsons & Ors [2018]. That case has now been considered further by the High Court of Australia (“the High Court”).
Recap
In 2006, Mr Parsons agreed to be the sperm donor for Ms Masson. The process was successful and Mr Parsons was recorded on the child’s birth certificate as the father and Ms Masson was recorded as the mother.
In 2015, Ms Masson and her partner (“the second respondent”) sought to relocate to New Zealand with the child. Mr Parsons filed Court proceedings to prevent them from relocating the child overseas. He asked the Court to Order that he and Ms Masson jointly make long-term decisions about the child (this is known as equal shared parental responsibility) and to allow the child to continue to spend time with him on a regular basis.
Even though Ms Masson was in a same-sex relationship with the second respondent, Mr Parsons played an integral role in the child’s life by providing financial support and deciding on the child’s education, health and general welfare. Mr Parsons also regularly spent time with the child.
The 1st Hearing in the Family Court
The Judge considered whether Ms Masson’s partner or Mr Parsons was the legal parent of the child, and determined that Mr Parsons was the child’s legal parent. Even though, the term ‘parent’ is not defined in the Family Law Act 1975 (Cth) (“the Act”), section 69R the Act states that if a person’s name is recorded as the child’s parent on the register of births or the parentage information is noted, then the person is presumed to be the child’s legal parent.
The Judge considered whether:
- a de-facto partner can be presumed to be a parent to a child who was born via a fertilisation procedure (provided it was consensual); and
- if a woman becomes pregnant by sperm fertilisation from a man who is not her partner/husband, is that man presumed not to be the child’s father.
The Judge interpreted the term ‘parent’ within its ordinary meaning, and so determined that Mr Parsons was the biological father of the child, as he was listed on the birth certificate as the child’s father and he genetically contributed to fathering the child.
Appeal to the Full Court
Ms Masson and the second respondent appealed the Judge’s decision in the 1st hearing to the Full Court of the Family Court. The Full Court upheld the appeal.
Mr Parsons then sought special leave to appeal to the High Court against that decision.
Appeal to the High Court of Australia
The High Court overturned the decision of the Full Court. The High Court considered that Mr Parsons played an active role in the child’s life and was not deemed to be a simple sperm donor. The High Court Ordered that Mr Parsons and Ms Masson have equal shared parental responsibility of the child. This means that Mr Parsons and Ms Masson must consult with one another regarding the child’s education, health, religion, culture, changing the child’s name or living arrangements. In addition, the child will not be able to relocate to New Zealand unless Mr Parsons and Ms Masson agree, or if it is ordered by a Court.
Where to Now Regarding Surrogacy, Sperm Donors and Family Law?
This decision is of great significance in our modern society, where the situation has become more prevalent of women deciding to conceive a child using artificial insemination with either a long-term male friend or an anonymous sperm donor. The case raises an important question of what happens if a sperm donor changes their mind and wants to have a relationship with the child, instead of just being a donor. The Court will always consider what is in the best interests of the child irrespective of what the parents may want.
Before entering into any agreement in relation to surrogacy, sperm donation, IVF treatment and/or family law rights arising from them, it is vital to have an accredited family lawyer review it in order to ensure that you understand the legalities of the agreement in its entirety.
If you are considering to enter a surrogacy or sperm donor agreement, our family law Director, Les Stubbs has over 30 years’ experience in family law and is an accredited specialist. You can contact him on 9231 2466 or at lstubbs@hflawyers.com.au.
Publications