Birth Mother and partner wins appeal against declaration that the sperm donor was a parent of their eldest child.
In the landmark case Parsons and Anor & Masson [2018] FamCAFC 115, the Australian Family Court addressed a complex issue involving parental rights and the role of a sperm donor in the context of a gay couple’s family. This case revolved around the appeal of Susan, a birth mother, and her partner, Margaret, who had two children conceived through artificial insemination. The central question was whether the sperm donor, Robert, should be legally recognized as the parent of their eldest child, B, given that Susan and Margaret’s relationship status and the circumstances surrounding B’s conception were in dispute.
Robert sees the children (they call him ‘Daddy’) and was registered as a parent on B’s birth certificate while Margaret is on C’s birth certificate.
Section 60H of the Family Law Act deems Margaret to be C’s parent.
At first instance the court declared Robert to be a parent of B for his role in donating sperm, but later was found as it was not satisfied that Susan and Margaret were in a de facto relationship when B was conceived. It was held that Robert was a legal parent of B as he had “provided his genetic material of the express purpose of fathering a child he expected to be a parent”. This included the role he played in B’s conception by donating sperm.
Susan and Margaret’s application to relocate to New Zealand was dismissed, prompting them to appeal the decision. The appeal focused on challenging the court’s determination that Robert was a legal parent. The case presented several legal complexities, particularly regarding the application of relevant laws and the interpretation of parental rights in the context of artificial conception.
Thackray J, with whom Murphy and Aldridge JJ Agreed, did not need to decide whether the finding that the appellants were not in a de facto relationship was in error. As to the finding that Robert was a ‘parent’ of B within the meaning of the Family Law Act 1975, the Full Court agreed with the appellants submission that “her Honour, who was sitting in New South Wales, erred in failing to recognise that s79 of the Judiciary Act 1903 (cth) required her to apply not the Family Law Act but the Status of Children Act 1996 (NSW), the effect of which is that “the respondent is conclusively presumed not to be B’s father”. Despite his role as a sperm donor.
Thackray J referred to Section 14 of the Status of Children Act 1996, which outlines presumptions of parentage arising from artificial conception procedures. Specifically, Section 14(2) states: “If a woman becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.” This provision clarified that, regardless of the sperm donor’s intent or involvement, the legal presumption is against the donor being recognized as a parent.
The appeal was ultimately allowed, leading to the parenting order being set aside. The case was remitted for re-hearing, reflecting the court’s recognition that the initial application of legal principles was flawed. The decision underscored the importance of applying the correct legal statutes in determining parental rights and highlighted the complex interplay between various laws in cases involving artificial conception and sperm donation.
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