Sperm donors, lesbian parents and the High Court. Where to from here?

On Wednesday, 19 June 2019, the High Court handed down judgment in the case of Masson v Parsons.

The Facts

The case involved a dispute between Robert Masson and Susan Parsons (court pseudonyms – not their real names). Masson and Parsons had been friends for a long time. In 2006 they agreed to create a child via artificial insemination. Mr Masson agreed to provide his sperm on the understanding he would play a role in the child’s life as the father and provide financial support for the child.

The arrangement between Masson and Parsons was informal as it was between friends, and no agreement was signed. Issues arose between the parties in 2015, when Parsons and her partner wanted to move to New Zealand with the child and her younger sibling, and Masson did not agree.

The Family Court

The parties ended up in a legal battle and in 2017, the Family Court handed down its decision recognising Masson as a legal parent. Their decision was based on the Family Law Act 1975, noting Masson’s intention at the time of conception and his subsequent involvement in the child’s life. Masson had been listed on the child’s birth certificate as her father, had spent significant time with the child, the child called him ‘daddy’ and he provided financial support.

The Mother and her partner appealed to the full bench of the Family Court, arguing that state law applied, not commonwealth law. In NSW the Status of Children Act 1996 states that if a woman conceives a child via a fertilisation procedure with a man who is not her husband, then that man is not the child’s father. In brief, the state law says a sperm donor isn't a parent.

The full court of the Family Court agreed with the state law and that meant that Masson was presumed not to be the child’s father.

Masson then appealed to the High Court, saying that the Family Court had made a mistake in their decision and that commonwealth law should apply, not state law.

The High Court

Last week, the High Court agreed with the original decision of the Family Court, ruling that Masson was the child’s legal parent. This decision was based on Masson being a parent in “the ordinary accepted meaning of the word parent”. The High Court did not turn its mind to whether a sperm donor who simply provides sperm is a legal parent. This case turned on its specific facts.

Where to from here?

What we know now is that there is a greater need for clarity around the definition of what constitutes a ‘parent’. What is not clear is what level of involvement from a donor may provide them with a basis to seek parenting orders in the Family Court.

In today’s society, people are creating babies with 1 parent, 2 parents, 3 parents and even 4 parents. Whilst heterosexual couples are also exposed to these disputes, it is LGBTQ couples and single parents who are more often entering into these kinds of parenting arrangements.

Whilst you may think legally your known donor is not your child’s father and does not have the responsibilities of a father, he is a biological parent and what we know is that the law says a child has a right to know both parents.

Whilst this case does not mean that all sperm donors are now legal parents, it certainly opens the door for known donors who play a role in a child’s life to seek some legal recognition. If you are entering into a known donor agreement, it is wise to have a donor agreement drafted.

What is a Donor Agreement?

A Donor Agreement is a written agreement between the known donor, the birth mother and often her partner. At the very least, the agreement should cover topics such as the health of the donor, conception, birth of the child, the roles of each party when the child is born and arrangements for time. A well drafted donor agreement will cover many more issues and you should seek legal advice when entering into these kinds of arrangements.

Why should you have a Donor Agreement?

If you are looking at entering into a known donor arrangement with a friend, you should give careful consideration to the process and how the arrangement will work. This is a lifelong decision, and one that can’t be reversed.

The arrangement should be documented from the outset, and importantly how the child will be conceived. All parties should have open and honest discussions about their roles and responsibilities and what their expectations are going into the arrangement. Having these discussions is also a beneficial way of working out whether a specific donor is right for you.

Cases have come before the Courts where issues have been raised that could have been clarified by a donor agreement from the outset, preventing the parties from spending significant amounts of money on legal fees.

The law in this area is changing rapidly and new laws can come into force retrospectively which change the playing field for those in these types of arrangements who are under an assumption that the law at the time will always apply to them. This is not the case.

A small investment from the start may help minimise future conflict and legal proceedings.

For more information on donor agreements, contact Nicole Evans at Nicole Evans Lawyers on (02) 8379 1892 or go to www.nelawyers.com.au.