SPERM DONOR OR LEGAL PARENT?

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The most recent High Court decision may change the meaning of legal parenthood for all parents, especially those in a same-sex relationship.

The majority of the High Court held in the case of Masson v Parsons [2019] HCA 21 that the man who was the biological father of the little girl, conceived by artificial insemination in 2006, was the little girl’s legal parent.

What happened?

Robert Masson and Susan Parsons (both pseudonyms) had been friends before the conception of the baby.

In 2006, Susan was in a same-sex relationship with her now wife, Margaret, and they decided to have a child together. In an informal  private agreement, the male friend agreed to be the sperm donor.

After the birth of the little girl, the father developed a close relationship with her, and played the role of a parent in her life. The father was listed with Susan on the child’s birth certificate.

Susan and Margaret also believed that the child had the right to know her biological father and encouraged this. However, when the family (Susan, Margaret and their daughter) decided to relocate to New Zealand, the father brought court proceedings against them to prevent them from relocating overseas.

What did the Court say?

The question for the High Court of Australia was, “who were the two legal parents?

According to the High Court, characterising the father as a sperm donor meant that he only took part in the artificial conception procedure and was not involved with the birth of the child as a result of the procedure. The facts of this case as determined by the High Court emphasised that:

“The questions of whether a person qualifies under the Family Law Act as a parent … is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand.”

What are the implications?

Could all sperm donors now be considered at law to be a child’s legal parent?

The High Court did not provide an answer to this question. Most importantly, the facts of this case are unique, as will be yours. After all, who is considered the ‘legal parent’ may not be a simple questions as many would like it to be.

Our family lawyers are able to provide advice on this specific issue, and all family law matters.


Chyrse Lambridis is a Solicitor at Stephens & Tozer, who has proudly and actively supported the LGBTIQ community since 1999. Co-author, Nancy Wang, is a Law Graduate undertaking placement at Stephens & Tozer, gaining experience in family law matters, among many other areas of law. Contact our family law team for all your family, parenting and divorce needs.

24 September 2019

Category: All / Family Law