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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. 

27 January 2020 - by Dr Sonia Allan, Damian Adams and Stephanie Raeymaekers 
As we enter 2020 and countries continue to grapple with the issues raised by donor-conception and surrogacy, reflection on recent 'consultations' and 'reviews' by government, not-for-profit and United Nations (UN) organisations around the world reveal that meaningful inclusion of the voices of people born as a result of such practices is often lacking...
17 June 2019 - by Bernie Owusu-Yaw 
A woman in Sydney, Australia is seeking a court order for the destruction of 12 embryos that are not genetically linked to her...
11 March 2019 - by Antony Starza-Allen 
The Australian High Court has heard a case concerning the legal parentage of a child born following sperm donation...
9 April 2018 - by Antony Starza-Allen 
The Mississippi Supreme Court has overturned a ruling that an anonymous sperm donor has parental rights over a child born to a lesbian couple, upholding the legal parenthood of the non-biological mother...
12 March 2018 - by Jessica Smith 
The recent landmark Court of Appeal case Re G – where the biological grandparents of a child born from donor sperm have been granted contact with the child – has been a hot topic of discussion among the legal and mainstream press...
15 May 2017 - by Dr Mary Yarwood 
A judge in Knox County, Tennessee, has granted a divorced woman the same legal rights as a husband over a child conceived through donor insemination...
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