Daddy or Donor?

Lessons From Massons v Parsons

The High Court of Australia has recently ruled on appeal a sperm donor to be the legal father of an 11-year-old child after he was actively involved in her life.

The case with the pseudonym of Massons v Parsons [2019] HCA 21 involved a 49-year-old man who agreed to donate his semen to his friend in 2006.

The donor and mother, who was single at the time, arranged to raise the child together and the donor’s name was entered as the father on the child’s birth certificate.

Although the child lived with the mother and her new defacto partner, the donor had an ongoing role in the child’s education, heath, general welfare and also provided financial support.

The primary judge described the relationship as an “extremely close and secure attachment relationship with child.”

The donor and child’s mother had a falling out when she declared he was not the child’s father and that she together with her new wife were moving to New Zealand with the child.

The donor applied to the Family Court of Australia for orders that he share parental responsibility with the two women, the mother be restrained from removing the child for her current place of residence and the child to spend time with him on a fortnightly cycle.

At first instance the donor was found to be a “parent” for the purposes of the Family Law Act 1975 (Cth), however this was appealed to the Full Court of the Family Court who held that the donor did not have parental rights.

The High Court in overturning this ruling addressed the legal debate that in NSW (where the parties all lived) the Status of Children Act 1996 (SCA) applied and in particular section 14(2) contained a presumption that “where a child is born to a woman using sperm donated by a man who is not her husband, that the person donating the sperm is not the father of the child.”

Under section 144 the presumption is said to be “irrebuttable”, which means no amount of contradictory evidence can prove otherwise.

In the Family Law Act, the Commonwealth also provides a number of irrebuttable presumption about parentage, however none applied to the facts of this case.

Section 60H(1)(d) of the Family Law Act only declares a sperm donor conclusively not to be the child’s father when the insemination took place while the mother was married or in a defacto relationship and in this case the mother was single at the time of the procedure.

The Family Law Act does contain a rebuttable presumption in section 69R that a person whose name entered as a parent of a child in a register of births is a parent of the child.

The High Court was faced with two questions:

  1. Did the NSW state law found in the Status of Children Act apply, or was the decision as to whether the donor was a “parent” to be made under the federal Family Law Act? And
  2. If it was the Family Law Act that applied, might the donor be said to be a “parent”?

The fist question involved a number of legal complexities raised mainly by section 79(1) of the Judiciary Act 1903 (Cth) which was designed “pick up” the law of the states in cases heard by Federal courts unless the Commonwealth or the Constitution otherwise provided.

It was the mother’s submission that the irrebuttable presumption found in the Status of Children Act that the donor was not the father was “picked up” by s 79 (1) of the Judiciary Act.

Simplifying somewhat, the donor’s submission was that the Status of Children Act was incapable of being “picked up” by the Judiciary Act as the Family Law Act ‘otherwise provided’. That is, where there is a gap in the federal law being applied, the state law will apply.

Here, it was decided there was no gap in the Family Law Act which was said to provide comprehensively for how the Family Court is to determine who is a parent. The donor’s submission was accepted as ‘correct’ by the majority of the High Court. They concluded for reasons somewhat similar to the section 109 of the Constitution, that when there was a clash of laws between Commonwealth and State, the Commonwealth Law should prevail.

In a number of cases and laws, most notably section 60H of the Family Law Act, the concept of “parent” is expanded beyond the accepted meaning by adding a range of persons in specific relationships to children born of artificial conception procedures.

Apart from these specific provisions, the test of whether someone is a “parent” according to the ordinary and contemporary Australian understanding of the word is a question of fact determined by the circumstances of the case.

The High Court rejected the claim of the mother that the community would not regard a “sperm donor” as a parent noting the donor had done much more than merely provide sperm and found:

To characterise the biological father of a child as a ‘sperm donor’ suggests that the man in question has 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 thereafter to have nothing to do with any child born as a result of the procedure.

Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done.

Accordingly, to characterise the appellant as a ‘sperm donor’ is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.

The Legal Fallout

It was not necessary for the High Court to decide whether a man who “relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word ‘parent’”.

The answer will always be determined on the facts, however in the case where a sperm donation is made to a single friend and there is an ongoing relationship the answer is not straightforward.

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