What happens when “Dad”, the sperm donor, who is registered on the birth certificate as Dad and has a close fatherly bond with a child, now 11 (let’s call her Amy), is faced with Mum and her same sex partner deciding to up and move to New Zealand, thus impacting his relationship with Amy?
The High Court in Masson v Parsons had to decide if Dad really was a parent under the Family Law Act and therefore to stop Mum moving, in “the best interests of the child”. Dad asked the court to prohibit the move, and he sought equal parental responsibility and substantial spend time arrangements with Amy.
Interestingly, Mum had agreed before the donation occurred that Dad would have an ongoing role in the child’s life. Both Amy and her younger sister called him “Daddy”.
Why did it go to the High Court?
The problem was in the NSW law that irrebuttably presumed that a sperm donor in his situation was not a parent of the child. Did this clash with the Family Law Act, a federal law, and should the latter take precedence because federal laws take precedence over state laws?
Can a sperm donor be a parent?
In the words of the court:
“To characterise the biological father of the 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 that procedure. Those are not the facts of this case.”
Critically, the High Court confirmed that the ordinary, accepted English meaning of the word parent is to be applied. The definitions in the Family Law Act relating to “parent” were not exhaustive. Instead, ordinary understandings of “parent” had to be applied and added to those in the Act. To put it neatly, as an English case they quoted said, you have to look at all the life circumstances of the case, including whether they may appear to be a parent “genetically, gestationally and psychologically”.
And the High Court made the orders that Dad sought.
What are the ramifications for other sperm donors?
Despite what you might read in the media, it is unlikely that sperm donors who never had any intention of taking on parental rights or responsibilities could now be legally recognised as a father of the resulting child against their will. Note that the High Court specifically did not address this issue. Current Victorian law is similar to NSW where a sperm donor has no parental rights. And the Family Law Act may support this position where the biological parent is truly a “sperm donor” only.
So if I have a biological child and am not involved does that mean I have no parental responsibilities?
No. These State laws only apply to sperm donors where a child is conceived by artificial insemination. If you have a biological child – even if resulting from one encounter with the child’s other parent – you have responsibilities to the child, including the obligation to pay child support.
Interestingly, even though the child in this case was born from IVF, Mr Masson always had financial responsibility to pay child support, in any event, because his name was on Amy’s birth certificate. Had it not been, he would now be obliged to pay child support for another reason, having been found to be a parent by the court.
If you’re not sure about your parental rights, or you’re considering artificial conception and would like more information, please do not hesitate to contact us.