WHAT IS A PARENT? –THE CASE OF MASSON AND PARSONS & ANOR [2019] AND THE IMPACT ON ARTIFICIAL CONCEPTION IN AUSTRALIA

Mr. Masson and Ms. Parsons were close friends for many years. Mr. Masson donated his sperm to Ms. Parsons in 2006 to allow her to have a child and she fell pregnant shortly thereafter. At the time of conception, Mr. Masson believed that not only would he be the child’s biological father, but that he would also support and care for the child in an emotional and psychological capacity. He was listed as the child’s father on her birth certificate and he continued to have an ongoing role in her financial support, health, education and general welfare.

In 2015, Ms. Parsons and her new partner decided to relocate with their two children, aged 9 and 10, to New Zealand. Mr. Masson initiated proceedings in the Family Court of Australia to prevent the women from relocating with the children. He sought orders which provided for shared parental responsibility between himself and Ms. Parsons, meaning that he and Ms. Parsons could jointly make any decisions concerning the child including schooling, health and religion. He also sought to place restrictions upon Ms. Parsons from relocating with the child as well as communication and overseas travel conditions.

At first instance, the Trial Judge adopted section 60H(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) and asserted that although Ms. Parsons and her new partner were in a relationship at the time of the Trial, he deduced that they were not in a de-facto relationship at the time of the child’s conception. As a result, Ms. Parsons’ new partner was not considered to be the child’s parent. The mother subsequently appealed to the Full Court of the Family Court (“the Full Court”).

When the case was heard before the Full Court in 2018, it was agreed that irrespective of a mother’s relationship status at the time of conception, sperm donors were not considered to be legal parents of children born via artificial insemination. The decision overruled the authority of Groth & Banks (2013), which allowed for a parenting order to be made in cases where birth mothers were single at the time of the child’s conception from artificial insemination. Mr. Masson appealed to the High Court of Australia.

An Appeal was heard in 2019 with the landmark decision impacting thousands of couples and single women who conceive children using sperm from known donors. Mr. Masson argued for the application of the Act, highlighting that the extent to which the donor is involved in the child’s life should hold greater weight than simply providing DNA. On the other hand, Ms. Parsons and her partner argued for the application of the Status of Children Act 1996 (NSW) to override the workings of the Act. Under state legislation, if a woman falls pregnant via artificial conception methods using sperm obtained from a man she is not in a relationship with, that man is presumed not to be the child’s father.

The High Court in this matter held that the ordinary interpretation of the term “parent” under the Act is subjective and the individual circumstances of each case should also be considered when making a determination. It should be noted, however, that where a sperm donor anonymously provides his semen for the purposes of artificial conception, he would not satisfy the ordinary interpretation of the term “parent” and therefore would not be recognised as such, irrespective of whether or not the mother was single at the time of conception.

Despite the original decision of the Family Court being overturned on the basis of state legislation, the High Court ruled in favour of the Act and Mr. Masson was held to be the child’s legal parent. It was determined that not only did Mr. Masson donate his sperm on the understanding that he would be included as the child’s parent on her birth certificate, he provided financial support and had been a part of the child’s life since her birth.

The decision ultimately confirms that sperm donors who have contributed financially together with maintaining an ongoing relationship with the child can be considered to have parenting rights to that child.

This landmark decision may have repercussions for couples and single women in Australia who undergo artificial conception procedures using a known donor. As such, it may be necessary to seek legal advice to understand your rights before moving forward with artificial conception.

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