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Why can’t parents decide who are parents? Could binding donor agreements be the way forward for known donors?

Alison Ross, Anthony Pitt, and Stacey Percival / 22 July 2019

Key issues:

  • The recent High Court of Australia decision of Masson v Parsons & Ors [2019] HCA 21 has generated debate about the meaning of “parent” and determined that, contrary to relevant State legislation, a friend who donated sperm was the legal parent of the child. However, depending on the particular circumstances, this will not be the result in all cases involving sperm donors, particularly known donors. As a result, there are likely to be inconsistencies in how the Court deals with these types of cases without legislative intervention. 
  • One way that these issues could be dealt with would be to give those involved in a known donor arrangement the right to decide, by way of a binding donor agreement, who the intended legal parents are and what financial consequences may follow.  

In this day and age, we can throw away any ideas of what makes up a “normal” relationship or family.  In the complex modern family, the assumption that a child has two people he or she considers to be “parents” may not be the practical reality for children where, for example, the child is born to parents in a polyamorous relationship, or from donor sperm or eggs where the donor is known to the parent(s) (a “known donor”) and wishes to be involved in the child’s life in a parental capacity.

But has our legislation caught up with complex modern families?

The media has widely reported the recent High Court of Australia case of Masson v Parsons & Ors [2019] HCA 21 which determined that a friend who donated sperm was the legal parent of the child, despite the State legislation precluding a sperm donor from being identified as a legal parent to a child born from such an arrangement.  The Court took into account the parties’ intention for the known donor to act in a parental role and the history of the matter, including that the donor was named on the child’s birth certificate, had paid child support and had fulfilled an active role in the child’s life (and that of her sibling).  

However, the media has reported on the case without identifying the key difficulty with this case. The High Court was entitled to make that determination on the particular facts of that case, where the biological mother of the child was not married or in a de facto relationship at the time of the artificial insemination procedure. However, it will not be open to a court to make that determination where the Family Law Act 1975 (Cth) prevents it from doing so, including where the biological mother is married or in a de facto relationship at the time of the artificial insemination.

This raises the question about whether a person who considers themselves to be, and has always acted as though they are, a parental figure to their biological child should be considered a parent if the mother is single, but not if the mother is in a relationship when the child was conceived. Is it appropriate for this factor to be determinative when it may not take into account the current relationship between the donor and their biological child? 

Further, should some known donors be responsible for child support - an outcome arguably flowing from the High Court case for the sperm donor - and some not?

While the Court has applied the modern day definition of the word “parent” where it was open to do so, this will not apply uniformly in all cases as the law currently stands. The Family Law Act will prevent the Court from doing so in other cases, depending on the relationship status of the mother at the time of the artificial insemination procedure, despite any contrary intention of the parties.

Despite the fact that the Commonwealth Attorney-General intervened in the High Court proceedings and submitted that this outcome was the correct one, we are yet to hear anything further from the Commonwealth Government as to whether they intend to rectify the inconsistency in the web of statues at State and Commonwealth Law that has subsequently arisen.

The key question arising from this case is - why can’t those involved in the creation of a child decide for themselves who the intended legal parents for their child are?  

We have a system which allows us to enter into financial agreements (known colloquially as pre-nups) to opt out of the uncertainties of applying future law to how property will be divided upon separation, usually many years later. However, those involved in known donor arrangements have not been afforded the same protections. Known donor agreements are a useful tool of recording parties’ intentions in circumstances that are often complex, but are not agreements that are afforded any legislative recognition so that parties can have no guarantee that a court will uphold what the parties themselves agreed upon at the relevant time.

As is often the case, medical advances and society’s adoption of artificial conception procedures have outpaced the legislation in place to deal with them. The legislation requires an overhaul, at the very least, to address the inconsistencies that have arisen as a result of the recent High Court case. 

One way that these issues could be dealt with would be to give those involved in a known donor arrangement the right to decide, by way of a binding donor agreement, who the intended legal parents are and what financial consequences may follow.

For more information or discussion, please contact HopgoodGanim Lawyers’ Family and Relationship Law team.

Authors
Alison Ross
Partner
Alison is a Partner of our Family and Relationship Law practice who works exclusively with HG Private clients.
Anthony Pitt
Special Counsel
Anthony is a Special Counsel in our Dispute Resolution practice who specialises in property-related litigation.
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