Wednesday, 19 June 2019

High Court- a known sperm donor is a parent


A known sperm donor to a single woman is a parent, not a sperm donr, according to the High Court.  The High Court today in Masson v. Parsons held unanimously that Mr Masson was a parent.  Some years ago, Mr Masson had agreed with his friend of many years, Ms Parsons to become a parent.  He supplied a quantity of sperm to achieve an at home insemination.  A child was conceived and born. 
They later fell out.  At trial, the question was whether Mr Masson was a parent.  The trial judge, Justice Cleary, found that Mr Masson was a parent because even though he was not specifically named in categories under the Family Law Act as a parent, as a matter of fact he was a parent because in his circumstances due to biology, intention and parenting.

Ms Parsons and her wife, the second Ms Parsons then appealed that decision to the Full Court of the Family Court, which in turn upheld the appeal, saying that the trial judge was incorrect.  The reasoning of the Full Court of the Family Court was that there was a scheme of legislation between the Family Law Act and the various State and Territory Status of Children Acts and that – as part of that scheme, if there weren’t specific characterisation of someone in the place of Mr Masson under the Family Law Act, then whether he was or was not a parent was determined by the Status of Children Act.  Under the New South Wales Status of Children Act, Mr Masson was not a parent – and therefore the Full Court held, he was not a parent.

High Court decision

Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle and Gordon held in a joint judgment that Mr Masson was a parent.  Justice Edelman gave a separate judgment, but agreed with the outcome. 
In the joint judgment. their Honours said:
            “Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning.  Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning.”
Their Honours said:
            “So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or otherwise defined in the Family Law Act as parents.  And it does not mean that the only persons who may seek parenting orders under section 61D are parents according to ordinary acceptation or otherwise defined as parents.  The range of permissible applicants is broader than that.  But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds in the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.”
Their Honours noted an English case in which according to English contemporary conceptions of parenthood:
“There are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically.  That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue…Just as the question of parentage under the legislation with which [the English judge] was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person applies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.
[The parenting provisions] of the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning.  In some respects, most notably in section 60H, the Family Law Act may be seen as expanding the conception of “parent” beyond ordinary acceptation by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures. 
Additionally, under section 60G, a person may qualify as a parent of a child born of an artificial conception procedure by reason of the persons’ adoption of the child under the law of a State or Territory.  But ss60H and 60G are not exhaustive of the classes of persons who may qualify as parents of children born of artificial conception procedures.  It remains that, apart from these specific provisions, the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”.  And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”
Their Honours said:
            “The evident purpose of Div 1 of Pt VII of the Family Law Act is that the Commonwealth is to have sole control of the provisions that will be determinative parentage under the Act.”
Their Honours went on to say:
            “Such as this structure and evident purpose of the provisions of [Division 1 of Part VII of the Family Law Act, i.e. the parentage provisions] that although ss60G and 60H are not exhaustive of the persons who may qualify under the Family Law Act as parents of children born of artificial conception procedures, if a person qualifies as the child’s parent either under s60G by reason of adoption or under s60H, or according to ordinary acceptation of the word parent, State provisions like ss14(2) and 14(4) of the Status of Children Act are irrelevant.”
The Court rejected the submission that the ordinary accepted English meaning of “parent” excludes a sperm donor:
            “As has been explained, the ordinary accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand.  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.
            It is unnecessary to decide whether a man who relevantly does know more than provide his sperm to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”.  In the circumstances of this case, no reason has been shown to doubt the primary judge’s conclusion that the appellant is a parent of his daughter.”

How does this case impact on others?

It is clear:
·         That if a sperm donor provides sperm and wishes to be a parent, but provides it to a couple, then ordinarily the couple will be the parents and the sperm donor will not. 

·         If the sperm donor provides sperm to a single woman with the intention of his being a father, then ordinarily he will be a father.

What is unclear is what if the intended father is intended to be a parent through surrogacy.  A decision of the Family Court in 2017, using a similar line of reasoning to that of the Full Court of the Family Court decision in Masson and Parsons said that there was a national scheme between the Family Law Act and the State and Territory Status of Children legislation and that one could only be a parent if one came within the State and Territory legislation unless in terms of surrogacy there was a State and Territory parentage order in favour of the intended parents.
It would have to be said that that decision now appears to be doubtful.  However, the High Court did not specifically deal with that decision in its judgment.  Intended parents who undertake surrogacy overseas may still not be recognised as parents under Australian law given that decision of the Family Court. 

What if there is a single surrogate?

If there is a single surrogate with an intended father who supplies his sperm in a domestic surrogacy arrangement, under State and Territory law generally he will not be accepted as the parent. 
It remains uncertain whether the intended father in that circumstance will be a parent.  Following the reasoning of the High Court, he will be a parent under the Family Law Act.  Whether this will prevent a transfer of parentage is not clear.
There will need to be legislative reform of surrogacy legislation so that those who undertake surrogacy will have it clearly set out who is a parent – consistent with this ruling.

Friday, 14 June 2019

Colombian Court rules: two men in a polyamorous relationship can claim the pension



For more than 10 years Manuel Jose Bermudez, Jhon Alejandro Rodriguez and Alex Zabala maintained a polyamorous relationship.  Shortly before Alex died, that three way polyamorous relationship became a four way polyamorous relationship when another man, Victor Prada joined the relationship.

When Alex Zabala died in 2014, the question became who would become his survivor for the purposes of his pension.  Last week the Superior Court of Medellin, in Colombia in what appears to be a world first, recognised Manuel Bermudez and Jhon Rodriguez as the survivors.

The Court said that the union between Manuel, Jhon and Alex was a “polyamorous relationship that has the components of permanence in community, implies the coupling of an identity as a family that is based on the common search for means of subsistence, and mutual company or a moral support.”

“From this perspective, the union constitutes a family constitutionally protected modality, holder of the prerogatives, rights and duties that the constitution and the law recognise to the family, as a fundamental nucleus of society, and as beneficiaries of the pension of survivors in charge of the general pension system,” the Court said.

Clarin.com reports that Manuel said from his Facebook account:
            “Survivors pension is an acquired right.  But above all it is the recognition, the worthy memory, of those who love and loved us for ten years of their lives.  Thanks to those who on the subject speak, think and decide injustice.”

The time that Victor Prada was in the relationship was not enough that he would be considered to be a survivor for the purposes of the pension.

Manuel, John and Victor were in the news in 2017 for being the first marriage between three men in Colombia.  This was the decision that they made in view of the problems they had concerning Alex’s entitlements with the pension fund.

Just as in Colombia, polyamorous relationships in Australia are on the rise.  While not common, anecdotal reports indicate that polyamorous relationships are becoming more common, particularly in the LGBTI community.  It is unlikely that the same outcome would have occurred in Australia, given that there are no constitutional protections for who constitutes a family.  Careful estate planning would need to be undertaken in such circumstances, to ensure that the survivors are able to inherit.

The last words belong to Manuel:
            “At first, people look with strangeness at a relationship like this, but as we are open and respond openly, very quickly they go to the respect and understand that we are a traditional family in many aspects, common and current, nothing extraordinary happens here.”

What an amazing week for equality- on three continents, and a step backwards

After the depressing news a couple of weeks ago that Kenya's highest court has ruled that its laws making homosexual sex illegal were valid, there have been three amazing steps forward this week:

Balanced against these outcomes is the Vatican's call that people are only male or female. The call "Male or female- He created them" does not recognise intersex or transgender people:

"The process of identifying sexual identity is made more difficult by the fictitious construct known as “gender neuter” or “third gender”, which has the effect of obscuring the fact that a person’s sex is a structural determinant of male or female identity. Efforts to go beyond the constitutive male-female sexual difference, such as the ideas of “intersex” or “transgender”, lead to a masculinity or feminity that is ambiguous, even though (in a self-contradictory way), these concepts themselves ac-tually presuppose the very sexual difference that they propose to negate or supersede. This oscillation between male and female becomes, at the end of the day, only a ‘provocative’ display against so-called ‘traditional frameworks’, and one which, in fact, ignores the suffering of those who have to live situations of sexual indeterminacy. Similar theories aim to annihilate the concept of ‘nature’, (that is, everything we have been given as a pre-existing foundation of our being and action in the world), while at the same time implicitly reaffirming its existence."

And for anyone who cannot achieve naturally, the Vatican says:


"The physiological complementarity of male-female sexual difference assures the necessary conditions for procreation. In contrast, only recourse to reproductive technology can allow one of the partners in a relationship of two persons of the same sex to generate offspring, using ‘in vitro’ fertilization and a surrogate mother. However, the use of such technology is not a replacement for natural conception, since it involves the manipulation of human embryos, the fragmentation of parenthood, the instrumentalization and/or commercialization of the human body as well as the reduction of a baby to an object in the hands of science and technology."

Or to put it another way, if you cannot conceive naturally, too bad, so sad. 

What an outrageous concept.