On 19 June 2019, the High Court of Australia made a landmark decision regarding the parental rights of a sperm donor when it delivered judgment in the matter of Masson v Parsons. The biological father and sperm donor, Mr Masson, sought orders from the Family Court of Australia to restrain the biological mother and her same-sex partner from relocating with their child to New Zealand.
What originated as a case concerning parental responsibility and the best interests of the child, ended up becoming a battle of legal definitions, and a battle of whether the parties should rely on state or federal legislation to determine their legal rights. The result will have a great impact on many cases into the future, as this case turned on two questions which, from a legal standpoint, are incredibly important to answer:
a) What is a “parent”?; and
b) When determining what a “parent” is (specifically when issues of artificial insemination are involved) does the Family Law Act 1975(Cth) operate alongside or to the exclusion of the Status of Children Act 1996 (NSW)?
The background that led to the legal challenge over the parental rights of a sperm donor
To go back to the genesis of the court case, it’s important to note that Justice Cleary, the original Trial Judge in this matter, did not consider Ms Masson’s status as the father of the child a contentious issue.
Justice Cleary noted in the original judgement that:
· Mr Masson was listed as the Father on the child’s birth certificate;
· Mr Mason had provided ongoing financial assistance to the child; and,
· Mr Mason had adopted, on all parties’ version of events, a parental role.
Justice Cleary also found that the usual presumptions that relate to artificial insemination (or to cases involving a sperm donor, contained in section 60H of the Family Law Act) did not apply to the facts of this case, as Ms Parsons was not in a relationship with her spouse at the time the child was conceived, and because Mr Masson “provided his genetic material for the express purpose of fathering a child whom he expected to help parent by financial support and physical care, which he has since done, the Appellant is a parent of the child within the ordinary meaning of the word ‘parent’ and, therefore, a parent of the child for the purposes of the Family Law Act.”
Justice Cleary made Orders in line with Mr Masson’s Application, for the child to spend substantial and significant time in his care, and for the biological mother and her spouse to be restrained from relocating internationally with the child. It was these Orders that were appealed by Ms Parsons.
Ms Parson’s Appeal to the Full Court
The case moved to the Full Court next, where the parental rights of a sperm donor were again the focus of interpretation of the law.
Justice Thackray decided to overturn the finding of Justice Clearly. In delivering its decision, the Full Court relied upon section 14 of the Status of Children Act in New South Wales, which provides a “irrebuttable presumption” that “in specified circumstances, the biological father of a child born as a result of a fertilisation procedure is not the father of the child”.
The Court found that while the Status of Children Act is State legislation that applies only in New South Wales, the legal representatives for Ms Parsons argued that Section 79(1) of the Judiciary Act allowed the Family Court of Australia (a Federal Court) to utilise that State legislation because of the unique circumstances of the case, and that consequently, there was an irrebuttable presumption that Mr Masson was not the father of the child (and should not have parental responsibility or Orders for substantial time with the child on that basis).
Mr Masson’s Appeal to the High Court
From there, Mr Masson then appealed to the High Court of Australia to make the final decision on the parental rights of a sperm donor. At this juncture, the factual matrix of the case had largely been established, and there was no disagreement about the circumstances in which Mr Masson had contributed to the welfare and upbringing of the child. It was also largely agreed how the Family Law Act applied and how the Status of Children Act applied.
None of these facts were in dispute. What was not dealt with, and what was the largest point of contention in the High Court appeal, was whether Justice Thackray was correct that the Family Court of Australia had jurisdiction to rely on Section 14 of the Status of Children Act, or if the Family Law Act should apply in isolation – as per the findings of Justice Cleary.
Ultimately, the High Court ruled in line with Mr Masson. The High Court found that section 79(1) of the Judiciary Act (which concerns the application of State legislation in Federal Courts) only operated to “fill a gap in the laws which regulate matters coming before Courts exercising federal jurisdiction by providing those Courts with powers necessary for the hearing and determination of those matters”. The High Court found that section 14 of the Status of Children Act was not relevant to the matter for jurisdictional reasons (describing the statute as an “irrebuttable rule of law” that “is not a law relating to evidence or otherwise regulating the exercise of jurisdiction”), and as such, could not be relied on in the manner proposed by the First Respondent.
The High Court went on to find that the Family Law Act ‘otherwise provided’ the legal principles necessary to determine the case (and, by extension, that the Status of Children Act was not necessary or applicable at a Federal level). The High Court determined that the purpose of section 60H of the Family Law Act 1975, and the divisions of the Family Law Act generally, are not intended to work alongside the ordinary meaning of the word “parent”, and that the Family Law Act is “complete upon its face”.
The High Court judgement also discussed the ordinary meaning of the word “parent”, in establishing what the parental rights of a sperm donor should be, making reference to the UK decision In Re G (children) where the Baroness Hale of Richmond stated, “‘There are at least three ways in which a person may be or become a natural parent of a child depending on the circumstances of a particular case: genetically, gestationally and psychologically.”
Both the High Court and Justice Cleary found that despite the unusual circumstances surrounding the conception of the child, Mr Masson was clearly a “parent” adopting both the ordinary meaning of the word, and the intention of the Family Law Act.
The legal representatives for Ms Parsons also made two secondary arguments, being:
1. that the Constitution provides, at section 109, for state and federal laws to form a single composite body of law (and the Status of Children Act can be utilised at a federal level in those circumstances); and
2. that the ordinary accepted English meaning of “parent” should exclude “sperm donor”.
Both of those arguments were rejected by the High Court, the first on the basis that it was clear that the state and federal laws applicable to this matter were inconsistent, and the federal statute takes precedence in those circumstances, and the latter because “to characterise the biological father of a child as a ‘sperm donor’ suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception […] Here, as has been found – and the finding is not disputed – the Appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, and he is; and that he would, as her parent, support and care for her, as since her birth he has done.”
The High Court made Orders that the appeal to Justice Thackray in the Full Court be overturned, and the Orders made by the Trial Judge, Justice Cleary, stand. Orders were also made for Ms Parsons and her spouse to pay Mr Masson’s costs of appealing to the High Court of Australia.
So, what does all this mean for the parental rights of a sperm donor?
The Court’s findings show that, while the parental rights of a sperm donor are highly debatable and contestable, there are provisions within the Australian law for a sperm donor, within specific sets of circumstances, to assert the right to be determined as a parent as well.
This case also goes to show that laws are applied and interpreted can impact the outcome of a matter as significantly (and in some cases, more significantly) than a party’s personal circumstances. This can get messy and significantly impact on lifestyles (or planned changes to lifestyles).