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.
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