21 Feb 2019

Written by Eliza Fitzgerald, Lawyer, Family Law

The High Court is set to deliberate on parental role of a sperm donor

In recent times, an increasing number of individuals have approached the Family Court of Australia seeking a declaration of parentage as a result of donor conception, surrogacy,  In Vitro Fertilisation or artificial insemination. Despite the growing number of applications and the similarity in their contents, there has been a significant divergence of judicial opinion in regards to who is considered a ‘parent’ of a child. In 2019, the High Court of Australia (High Court) will be hearing an appeal, which will require a reconsideration of what it means to be a ‘parent’ and whether the current emphasis on biology as to how someone was conceived is still relevant. Given that the appeal is fast-approaching, we have discussed the genesis and Court decisions that have led to the appeal to the High Court.

What is the factual background underpinning this case?

In Parsons and Anor & Masson [2018] FamCAFC 115, the biological birth mother, Susan, was is in a de-facto relationship with Margaret, and they had two children (child B and C) who were both conceived through artificial insemination. The sperm for child B was donated by the Respondent, Robert, and by an unknown donor for child C. Over the years, Robert spent regular time with the children, and both children would call him ‘Daddy’.

Susan and Margaret sought orders for the children to relocate to New Zealand, and Robert opposed their application given he sought to spend time with the children in Australia.

Was Robert deemed a legal parent?

At first instance, the trial Judge was of the view that Robert was the legal parent of B, and consequently did not permit the relocation to New Zealand.  The trial Judge also ordered that Susan and Margaret were to have equal shared parental responsibility, however, they had to consult with Robert prior to making any long term decisions about Child B.   

Susan and Margaret appealed against most of the orders made, but in particular argued that the trial Judge was in error by finding that Robert was a legal parent of child B. They also argued that the assessment of the best interest of child B was flawed due to an erroneous finding that Robert was the legal parent of child B.

Appeal Allowed

The Full Court of the Family Court held that the trial Judge had incorrectly determined that Robert was the child’s ‘parent’, which was contrary to a state law on the status of children.  Ultimately, Robert was found not to be the legal parent of child B, which has now prompted calls for the law to be updated.

Regardless, Robert appealed the decision from the Full Court of the Family Court and he was granted special leave to the High Court. The matter is set down to be heard sometime this year. 

This case is significant, because it poses a number of unanswered questions. Should the Court consider how the child was conceived? Are the birth parents intentions relevant? Is the child’s view and perspective significant? However, most significantly, this year, we will find out what it means to be a legal parent.

 

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