In April 2019, the High Court of Australia will hear an appeal regarding the legal parentage of a child born as a result of an artificial conception procedure from a known sperm donor. The case is significant, and the decision will potentially impact countless Australian families.

Background

The Applicants in this case are a lesbian couple, Susan* and Margaret Parsons*, who 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, 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 who sought 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 Applicant Mothers 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 Applicant Mothers 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

The Applicants 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. The Full Court ordered that the Respondent was not a parent on the basis of s 79 of the Judiciary Act 1903 (Cth) and s 14(2) of the Status of Children Act 1996 (NSW).

Appeal to the High Court

The Respondent subsequently appealed to the High Court of Australia, where the matter is currently pending. Because the Family Law Act 1975 (‘the FLA’) places a large emphasis on the benefit of both parents having a meaningful relationship with their children, the outcome of this case is likely to ultimately rest on this question – who are B’s parents?

The word ‘parent’ is not exhaustively defined by the FLA. The High Court judgment therefore has the potential to challenge current interpretations of s 60H of the FLA, which outline the presumptions of parentage when a child is born as a result of artificial conception procedures. Section 60H creates a presumption in favour of an intended parent (notably the recognition of a non-biological mother in a lesbian relationship), and acts to preclude a known sperm donor from any form of parental responsibility or acknowledgment as a legal parent of a child, regardless of the parties’ intentions. However, if it is found that the parties’ intended for the Respondent to play a significant role in B’s life, and that this has been the case, then the Respondent can still be considered a person concerned with the ‘care, welfare and development of the child’ under the FLA, and apply for a parenting order pursuant to s 65C.

The scope of s 60H of the FLA does not consider circumstances where parties agree that the child has three or four parents, and judges have assumed that use of the term ‘both parents’ means that a child may only have a maximum of two parents. Looking to biology to interpret the legal parenthood of a child is inconsistent with other areas of the law, such as migration law, as well as the increased diversity of Australian families today. While the ‘best interests of the child’ are considered paramount under the FLA, the court is yet to ask B and C, aged 11 and 9, for their opinion on who they think their parents are.

Significance of the decision

The Federal Attorney Christian Porter has now intervened in the High Court case, arguing that the term “parent” should be expanded to include a sperm donor in certain cases where the sperm donor is not married to, or in a de facto relationship with, the Mother at the time the child was conceived. If this argument is accepted, it will mean that a single woman who uses a known sperm donor may find it impossible to exclude that donor from having a role as parent in their child’s life. This could have far reaching implications for thousands of donors, mothers and their children.

We will be watching this case carefully, and will report further on its outcome.

*Names are pseudonyms provided by the court.