Will your donor have parental rights? - an update
In our previous article, we discussed recent case law dealing with the rights of sperm donors and whether they were “parents” of children born from artificial conception procedures.
The case discussed in that article, Masson & Parsons, has had a long journey from that point, being considered firstly by the Full Court of the Family Court of Australia and, most recently, finding its way before the High Court of Australia with not one but two Attorney-Generals (from the Commonwealth and from Victoria) intervening in the proceedings. So, how did a case about a sperm donor garner so much attention?
The matter relates to the care arrangements of two children, referred in the proceedings as B and C, and the identification of their legal (as opposed to biological) parents.
In late 2006, B was conceived following a private and informal artificial insemination procedure between the biological mother, Susan, and the biological father, Robert. Robert contended that, at the time, he believed he would be fathering a child that he would help parent, including by providing financial support and physical care. Upon B’s birth, Susan and Robert were named on her birth certificate as B’s parents.
At first instance it was held that, at a time subsequent to B’s conception, Susan entered into a de facto relationship with Margaret. Susan also underwent a further artificial insemination procedure with an unknown sperm donor while in the de facto relationship with Margaret and C was born. Susan and Margaret were recorded as C’s parents on her birth certificate as her parents. However, despite not being biologically related to C, Robert was involved in the care of both B and C and C believed for a long time that Robert was her parent.
Susan and Margaret then sought to relocate from Australia to New Zealand with the girls, which was opposed by Robert who filed an application in relation to that matter. As a result of those proceedings, the parentage of B became an issue, with Susan and Margaret contending that Robert was presumed, under the Status of Children Act 1996 (NSW), to not be a parent in circumstances where B’s conception was as a result of a fertilisation procedure in which Robert was a sperm donor. Robert contended that the provision had no application and section 60H of the Family Law Act 1975 (Cth) did not exclude him from being a parent, a term which should be given an expansive meaning.
There was no issue in relation to C’s legal parentage; however it was accepted at first instance that Robert had standing to apply for parenting orders for C (as did Margaret, in relation to B), regardless of whether he was a “parent”.
Section 60H of the Family Law Act deals with children born as a result of artificial conception procedures at a Commonwealth level. In doing so, it specifically addresses a number of particular circumstances being:
Importantly, for the purposes of the competing arguments put by Susan (and Margaret) and Robert in this matter, section 60H does not specifically deal with the circumstance where a single woman undergoes an artificial conception procedure for the purposes of the Family Law Act.
The other relevant provision in this matter is section 14 of the Status of Children Act (NSW). That provision sets out a number of irrebuttable presumptions to the effect that:
There was no issue in relation to the legal parentage of C, with it being accepted by the Court that, at the time of C’s conception, Susan and Margaret were in a de facto relationship and, as such, both the Status of Children Act 1996 (NSW) and section 60H of the Family Law Act provided that Susan and Margaret were C’s legal parents.
At first instance, the trial Judge determined that for her to conclude that Robert was a legal (as opposed to biological) parent, the evidence must support findings that he provided his sperm for the express purpose of fathering a child he expected to parent, and was unaware of the assertion that Susan and Margaret were in a de facto relationship at the time of B’s conception.
The trial Judge considered that the “intention and belief of a party to an artificial insemination process is a factor to be taken into account”. In this case, it was held that the evidence supported a finding that Robert took part in the artificial insemination process believing that he was fathering a child and, therefore (absent other legally disqualifying factors) was a parent in the ordinary meaning of the word.
The trial Judge adopted the view that section 60H of the Family Law Act should be interpreted as expanding, rather than restricting, the categories of people who can be parents and that biology is the determining factor unless specifically excluded by law. Given Robert intended to be a parent, he should be regarded as B’s legal parent - with nothing in section 60H excluding that.
On appeal, the Full Court considered the legal meaning of “parent” and that, while the Family Law Act did not have specific application to the matter, there was a State law that applied in these circumstances. The Full Court therefore considered there was a “gap” in the federal law which, under the terms of the Judiciary Act (Cth), should be filled by the State legislation.
As a result, the Full Court determined that, having regard to the Status of Children Act (NSW), Robert was not legally B’s father, notwithstanding that it was accepted that he was the biological parent of that child stating that:
“while as a matter of ordinary English usage the word ‘parent’ will be satisfied by identifying the male whose gametes were used for a child to be conceived, biology alone is not determinative in deciding who is a ‘parent’ for the purposes of the federal Act, since a biological connection is not required.”
The Full Court further accepted there was nothing in the Family Law Act to suggest that the expectation of a man that he will parent a child born using his genetic material is relevant in determining whether he is a “parent” for the purposes of the Act.
Thackray J, with whom the other members of the Full Court agreed, further noted the need for uniform laws throughout Australia in relation to the rights of sperm donors and noted that:
“I consider it would be a curious result if the Commonwealth was found to be out of step with the laws of all States on this issue, which would be the result of adopting the approach advanced by the respondent.”
Robert appealed to the High Court arguing that, contrary to the Full Court’s decision, there was no “gap” in the federal legislation to be filled by the State legislation and that the ordinary meaning should be adopted for the word “parent” within the meaning of the Family Law Act. It was further argued that, to the extent that the State legislation was inconsistent with the Family Law Act, a federal piece of legislation should prevail to meet the inconsistency.
On 19 June 2019, the High Court allowed the appeal in favour of Robert. In its reasons, the High Court noted that section 60H of the Family Law Act was not exhaustive in relation to who may qualify as a “parent” and that, although the Act contains no definition of “parent”, the natural and ordinary meaning should not be departed from unless it is plain that the Parliament intended for a different meaning to be applied.
The Court further found that it was implicit in various provisions of the Act that the word “parent” was to have its ordinary meaning except where an applicable provision of the Act otherwise provided.
Dealing with the arguments of Susan and Margaret (that the State law should be applied to the effect that Robert was not C’s father), the High Court held that the Judiciary Act did not pick up and apply those provisions because they operated as a rule of law, determinative of parental status, without any determination of the matter by any court or tribunal, and were not provisions that merely regulated the exercise of the Court’s jurisdiction. As a result, they did not by their terms fall within section 79 of the Judiciary Act. The High Court went on to say that, in any event, the Family Law Act had “otherwise provided” such that there was no “gap”.
The High Court further noted that, although the provisions of the Family Law Act were not exhaustive of the persons who may qualify under that Act as parents of children, if a person qualified as the child’s parents under that Act, then State provisions were irrelevant.
In relation to the status of “sperm donors” generally, the Court rejected Susan and Margaret’s submission that the ordinary meaning of “parent” excluded donors. Instead, the Court held that the meaning of the word “parent” is a question of fact and degree determined according to:
The High Court further said that, here, Robert was not merely a donor on the basis of any express or implied understanding that he would have nothing to do with the child born but, instead it had been found that:
Therefore, the Court concluded that to characterise Robert as a “sperm donor” would be to ignore all but one of the facts and circumstances of the case.
Of note, the Court concluded that:
“It is unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary meaning of the word parent."
While the decision of the High Court has clarified the appropriate definition to be adopted of the meaning of “parent”, it is clear that some practical issues flow from the decision in this case. Importantly, absent legislative intervention, there is now a difference between how a donor is treated under various pieces of State legislation throughout Australia and the Family Law Act (and the Child Support (Assessment) Act, as is discussed below). While this disparity could be cured by legislative intervention, this is unlikely given the Commonwealth Attorney-General supported Robert’s appeal.
Accordingly, as we set out in our earlier article, some of the main points that should be considered by those considering the use of a sperm donor include:
Without proper consideration of these issues, there is the potential, whether from the donor’s perspective or the recipient’s perspective, for unintended issues to arise if a child is born from the procedure and for disputes to arise after the child is born. It is therefore important to consider carefully these issues before the procedure is undertaken and to seek any necessary legal advice before you proceed.
While this case does have some particular facts, including that it was found that Susan was not in a de facto relationship with Margaret at the time of the conception (a finding that was crucial to the outcome of this case), this is not an unusual scenario. Parties should therefore obtain proper legal advice about all of the potential consequences of how they proceed with respect to the use of known donors. For intended donors, they should be clear about their role and what might be intended or expected of them if a child is conceived from the procedure.
For more information or discussion, please contact HopgoodGanim Lawyers’ Family and Relationship Law team.