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Modern Family: The Contested Space Of Legal Parentage

This year the High Court will hear a landmark case on the legal parentage of a child born via sperm donation.

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27 March 2019

By: Mimi Oorloff

This year the High Court will hear a landmark case on the legal parentage of a child born via sperm donation.

Twelve-year-old B and her younger sister C were born to Susan Parsons via artificial insemination. They live with Susan and her partner Margaret in Australia and spend regular time with B’s biological father, Robert Masson, and his partner Greg. Robert is listed on B’s birth certificate as her parent. The identity of C’s biological father is unknown but Margaret is listed as her legal parent on her birth certificate. Both B and C call Robert ‘Daddy’.

The Parsons applied for relocation orders in the Family Court so that they could return to New Zealand to live with B and C. Robert Masson objected to the relocation, wanting the children to remain in Australia and to continue spending regular time with him.

Whether the Parsons family should be allowed to relocate is a matter for parenting orders (i.e. orders that state which parent the child lives with and when). In making a decision as to parenting orders, the Court must consider the best interests of B and her little sister C as paramount under the Family Law Act.

In making an assessment as to the best interests of the child, the Family Law Act considers “the benefit to the child of a meaningful relationship with both parents”. Therefore, whether Robert is considered B’s legal parent is determinative.

So what does it mean to be a legal parent?

The Family Law Act provides that where a woman conceives a child by way of an artificial conception procedure, she will be deemed the child’s parent, whether or not she provided genetic material.1 The sperm or egg donors do not incur any liability or retain any rights in relation to a child born as a result of artificial insemination.

Where a child is born to a biological mother and her partner by way of artificial insemination and the partner consents to the procedure, the Family Law Act provides that the mother and her partner will be deemed the parents of the child, not the person who provided genetic material.2

In the case of Masson & Parsons,3 Her Honour Cleary J found at first instance that the respondent is a legal parent of B. Her Honour emphasised that Susan and Margaret were not in a de facto relationship at the time of B’s conception and focused on Robert’s genetic contribution to B’s birth and his intention to be a father at the time of her conception.

On appeal to the Full Court of the Family Court,4 Mr Masson was denied legal parentage. The Full Court applied NSW legislation in what they considered to be the absence of federal legislation. The Court held that a sperm donor is not a parent unless married or in a de facto relationship with the mother at the time of conception.

The High Court is due to hear the appeal in Masson v Parsons on 16 April 2019. In written submissions filed ahead of the hearing, Mr Masson’s lawyers argue the word ‘parent’ is ‘a question of fact’, in which biological and social factors could be relevant, as well as the parents’ conduct.

Why is this case significant?

For several decades, the Family Court has debated whether the provisions in the Family Law Act regulating legal parentage exclusively define legal parentage or whether in fact they enlarge the category of people who can be considered a parent.

The Family Law Council has criticised the statutory complexity of parentage laws and their lack of flexibility for diverse families, saying that the present legal framework does not “reflect the reality of parenting and family life for many children in Australia”.5

Federal Attorney-General Christian Porter has intervened in the High Court appeal, arguing that the term ‘parent’ should be expanded to include sperm donors in certain situations who are not married or in a de facto relationship with the mother at the time a child is conceived.

The outcome of Masson v Parsons has far-reaching consequences for many thousands of donors and their children and has the potential to instigate federal law reform. The case raises complicated social and policy questions such as: Is parentage a biological or social relationship? Should children should have a say in who their parents are? Can a child have more than two parents?

If you want to know more about the law surrounding artificial conception and your legal rights, contact one of our experienced family lawyers on (03) 8393 0144.

S 60H(2).
S 60H(1).
Masson & Parsons [2016] FamCA 142 (3 March 2016).
Parsons & Masson [2018] FamCAFC 115 (28 June 2018).
‘Report on Parentage and the Family Law Act’ (Family Law Council, December 2013) 40.

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