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Informal sperm donor is legal parent, rules Australian court

24 June 2019
Appeared in BioNews 1003

The Australian High Court has ruled that a man who provided sperm to a friend is the legal father of her child.

The girl was born to Susan Parsons, as a result of an informal arrangement with a friend, Robert Masson, to conceive through home insemination. Parsons met Margaret, whom she subsequently married, while she was trying to conceive using Masson's sperm. The couple went on to conceive a second child using an American sperm donor. 

The high court judge accepted that Masson agreed to provide sperm with the intention of acting as a co-parent: 'He believed that he was fathering the child and would thus support and care for her. His name was entered on the child's birth certificate as her father.'

Although the child never resided with Masson, court documents showed he had an 'ongoing role in the child's financial support, health, education and general welfare'. The girl refers to Masson as 'daddy', and he moved house to be closer to her. 

The case came to court because Parsons wished to move her family to New Zealand. She applied to court to remove Masson's name on the first child's birth certificate and replace it with Margaret's. As a legal parent Masson has better standing to argue that his child should not be moved overseas than if he was ruled to be only a donor.

The case has brought Commonwealth and state laws into juxtaposition. A 2017 family court ruling that applied the 1975 Family Law Act decided that Parsons and her partner were the intended parents of the second child, but that Masson was the father of the first. The decision considered the fact that the couple were not in a 'de facto' relationship when the child was conceived, but that their relationship at that time was 'developing' (see BioNews 990).

Parsons appealed that decision, asking the High Court to determine the definition of a legal parent in the Australian Family Law Act, and its relationship with state laws – especially the New South Wales Status of Children Act which contains an irrebuttable presumption that: '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.'

The court ruled that the state law was overruled by the federal statute, and concluded the 1975 act was not specific in deciding parentage when assisted conception is used by a woman without a spouse or de facto partner. The court therefore evaluated whether Masson had acted as a parent 'according to the ordinary, accepted English meaning of "parent"', and having decided that he did so, ruled him the legal father. 

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