Donor upholding ‘parental’ responsibilities
In 2006, Mr Masson provided sperm to longtime friend, Ms Parsons, to conceive a child by way of artificial insemination. At the time of the conception, Mr Masson provided his semen with the belief that he would be the resulting child’s parent – that his name would appear on the birth certificate as ‘the father’, and that he would be involved in the child’s life. The child lived with Ms Parsons and her same-sex de-facto partner, Ms Ors.
In 2015, Ms Parsons and Ms Ors decided to move overseas with the child. In response, Mr Masson, who was described as having an “extremely close and secure attachment” with the child, instituted proceedings in the Family Court for orders conferring shared parental responsibility between himself, Ms Parsons and Ms Ors.
The trial judge found that the Mr Masson was a parent of the child, even though he did not fall within the meaning of ‘parent’ under section 60H of the Family Law Act – which regulates parentage of children born through artificial insemination – however, his relationship with the child and his beliefs surrounding his role in the child’s life meant that he had fulfilled the meaning of ‘parent’ under this Act.
Ms Parsons and Ms Ors successfully appealed to the Full Court of the Family Court where the Mr Masson was not granted parental status. Mr Masson then appealed to the High Court, where it was determined that he was in fact a legal parent of the child.
Applying the meaning of ‘parent’
The High Court upheld the trial judge’s decision that section 60H of the Family Law Act is an expansive provision. The provision accommodates a wide array of circumstances and whilst the meaning of parentage should reflect what it naturally and ordinarily means, determining it is a matter of “fact and degree”.
Mr Masson was found to be a parent, even though he had not been married or in a de facto relationship with Ms Parsons, because the nature of the relationship he held with the child fulfilled the natural meaning of ‘parent’. He not only provided his semen, but did so with a certain understanding of what his role was going to be and acted on that belief by way of involvement in the child’s life.
The High Court’s decision makes it clear that there are circumstances in which a sperm donor can be recognised under the law as a “parent”. Furthermore it remains open to the court to decide parentage having regard to the particular facts of each case.
Names used in this case are court pseudonyms.
How can I learn more?
Adele is an accredited specialist in Family Law. She holds a Bachelor of Laws with Honours and a Bachelor of Arts (Psychology major) from the University of Melbourne.
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