Can a Sperm Donor be a Parent?

By 15 July 2019Family Law

When you think of family law, most people will think about parenting disputes, property settlements and divorce.  It is not surprising then that a large part of the Family Law Act 1975 (Cth) is devoted to children, the making of parenting orders and the various factors to be taken into account when making parenting orders.

What is surprising then is that the Family Law Act does not contain a definition of what a parent is, except to say that in relation to a child who has been adopted, ‘parent’ means an adoptive parent of the child.

In a recent decision of Masson v Parson [2019] HCA 21, the High Court has shed light on what a parent means for the purposes of the Family Law Act, in the context of sperm donors.

The facts in Masson v Parson

The appellant (“the donor parent”) and the first respondent (“the mother”) had been close friends for many years.  In 2006, the donor parent provided his sperm to the mother so she could artificially conceive a child.  This procedure was successful.   The donor parent was named on the Birth Certificate as the child’s father and his evidence at the hearing was that at the time he provided his sperm, he had intended to play a fathering role to the child, including providing financial support.  After the child was born, the donor parent and the child maintained a close relationship.

In 2015, the mother and her then partner decided to move with the child to New Zealand.  The donor parent objected to the proposed move and commenced proceedings.

At hearing the Court looked at the various presumptions of parentage which are found in the Family Law Act.  One such presumption allows the partner of a woman, who gives birth to a child as a result of an artificial conception procedure, to be deemed to be a parent and for the donor parent to be deemed not to be a parent.

In Masson v Parson this presumption did not apply because the mother and her partner at the time of the proceedings had not been married or in a de facto relationship at the time of the child’s conception.

Because the mother was not married or in a de facto relationship at the time of conception, this left it open for the donor parent to be considered to be a parent for the purposes of the Family Law Act.  However, the Full Court of the Family Court declared that the donor parent could not be parent because the Status of Children Act 1996 (NSW) applied and that Act presumed that the donor parent was not a parent.

The donor parent appealed to the High Court against this declaration.  The appeal was successful.

The High Court held that the Full Court was wrong to apply the Status of Children Act 1996 (NSW) when determining parenting proceedings under the Family Law Act.   Instead the High Court made it clear that:

  1. the meaning of a parent under the Family Law Act is the ordinary, contemporary understanding of a parent; and
  2. whether a particular person should be declared to be a parent will depend on the individual facts of the case.

The High Court held that in the individual facts of this case, the donor parent was a parent to the child within the ordinarily meaning of the word ‘parent’, and was therefore a parent for the purposes of the Family Law Act.