By Kristina Antoniades (Special Counsel)
In a landmark decision handed down by the High Court of Australia today, it has been ruled that a sperm donor, who donated sperm to a woman with whom he was not in a relationship at the time of conception, is legally the father of the child born as a result of that donation.
Susan* and Margaret Parsons* (together, the Applicants) have two children (‘B’ and ‘C’) that were conceived using artificial insemination. Susan is the birth mother to both children, however B was conceived using sperm donated from Robert Masson* (the Respondent) and C was conceived using an unknown sperm donor.
At the time of B’s conception, the Respondent believed that he was fathering a child whom he would help parent, including by way of financial support and physical care. The Respondent’s name appeared on B’s birth certificate, and Margaret was listed as the ‘other parent’ on C’s birth certificate. While the Respondent and C are not biologically related, C only became aware of this fact recently and both children view the Respondent as their father. The Respondent has taken his relationship with both children seriously, feeling a commitment to caring for both girls. The children have always resided with the Applicants, and proceedings were initiated in the Family Court last year by the Applicants, seeking permission to relocate to New Zealand with both children.
The Respondent objected to the proposed relocation.
The Family Court’s view
The primary judge considered that the Respondent played an active role in the children’s lives, and that both of them referred to him as ‘Daddy’. The Respondent also argued that when B was conceived, the Applicants were not in a de facto relationship, and that he had provided his genetic material for the express purpose of fathering a child to which he expected to be a parent. Because the Applicants were not in a relationship at the time of B’s conception, the primary judge found that Margaret was not a legal parent of B. Her Honour concluded the Respondent was a parent instead, noting that ‘biology is part of the answer’.
The Applicants were not given permission to relocate to New Zealand, and it was ordered that they have equal shared parental responsibility with the Respondent on the basis that they must consult with him before making any long-term decisions.
Appeal to the Full Court of the Family Court
Margaret and Susan appealed the matter, on the grounds that the primary judge had failed to apply the relevant law in determining whether or not the Respondent was a legal parent of the child.
Margaret and Susan relied on section 79 of the Judiciary Act 1903 (Cth) (Judiciary Act) which applies where there is a gap in the law governing the exercise of federal jurisdiction (being primarily section 60H of the Family Law Act 1975 (Family Law Act)) by picking up State laws which regulate the exercise of State jurisdiction (being section 14 (1) and 14(2) of the Status of Children Act 1996 (NSW) (Status of Children Act)) and applying them as Commonwealth laws governing the exercise of federal jurisdiction.
The Full court held that in applying section 79 of the Judiciary Act, the Respondent was irrefutably to be presumed not to be the father of his biological daughter.
Appeal to the High Court of Australia
The Respondent subsequently appealed to the High Court of Australia.
The principal issue for determination was whether the state legislation, namely the Status of Children Act, should be applied as Commonwealth law governing the exercise of federal jurisdiction.
The High Court held that there is no gap in the law governing the exercise of the Family Court’s jurisdiction to making parenting orders under the Family Law Act and that Part VII provides comprehensively for how the Family Court is to determine who is a parent. Therefore, the Status of Children Act does not apply in this case.
Section 60H of the Family Law Act provides rules for the parentage of children born as a result of artificial conception procedures. Section 60H states:
(1) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure whilst the woman was married to, or a de facto part of, another person (the other intended parent); and (b) either: (i) the woman and the other intended parent consented to the carrying out of the procedure; (ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and the other intended parent; Then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act: (c) The child is the child of the woman and of the other intended parent; and (d) if a person other than the woman and the other intended parent provided genetic material – the child is not a child of that person.
The High Court agreed with the decision made by the trial Judge at first instance (Justice Cleary) and the Full Court of the Family Court, that section 60H of the Family Law Act is not an exhaustive list of the persons who may qualify as a parent of a child conceived via artificial conception procedures. It was further held that although the Family Law Act does not provide a definition of “parent”, that the word parent should have its natural and ordinary meaning except when and if an applicable provision of the Family Law Act provides otherwise.
The High Court held that to characterise a biological father of a child as a “sperm donor” suggests that the man has done nothing more than provide his semen to facilitate the conception of a child on the basis of an express or implied understanding that thereafter he is to have nothing to do with any child born as a result of the procedure. The High Court held that those are not the facts of this case. It was undisputed that the Respondent provided his semen with the express or implied intention that he would be a parent of the child; he was registered on the child’s birth certificate as the father and has supported and cared for her in this capacity. It was on this basis that the High Court held the Respondent to be the father of child B.
Notably, the High Court did not go on to determine whether a man who does nothing more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child would fall within the ordinary meaning of the word “parent”.
The impact of this landmark judgment will be significant and calls for reform regarding the parental status of sperm donors. The law as it stands does not adequately provide for different family structures as is evidenced in this case. There is no clarity for donors and intended parents. What we know is that the intention of the parties prior to conception, and the actions of the parties in exercising parental responsibility towards a child born as a result of artificial conception procedures, will prove vital in determining the parental status of a sperm donor.
The law has not caught up with the evolving family structures within the community and this needs immediate reform. The wider implications for women who have conceived a child using a known sperm donor may be profound and result in significant litigation and outcomes which may not have been intended at the date a child was conceived.
*Names are pseudonyms provided by the court.