It is not often that family law matters command the attention of the High Court. Recently in the case of Masson v Parsons & Ors [2019] FCA 21, the High Court has been required to consider the status of a person providing sperm for the purpose of conceiving a child and whether or not they are a legal parent.

In a case that has played out over four years and been appealed on two occasions, the highest court in our country has deemed that Mr Masson who provided the sperm, is classified as a parent. It is important to consider the particular circumstances of this case, in order to appreciate that it is not going to provide a broad precedent whereby all sperm donors will now automatically be recognised as parents and have all rights and responsibilities that flow from this. However it certainly opens the door for people in similar situations to consider their potential parental rights.

This case involved a child, referred to as B, who was conceived by artificial insemination with sperm provided by Mr Masson and the egg of the biological mother.  At the time of conception, Mr Masson understood that he was fathering the child and would provide support and care for her.  Both biological parents were named on B’s birth certificate. The biological mother contended that she was in a de facto same sex relationship at the time of conception and it was always the intention for the biological mother and her partner to be the parents of the child.  Later, the biological mother had a further child, C, with sperm provided by an anonymous sperm donor. The biological mother and her partner were both named as parents on C’s birth certificate.  This child was not subject of the case before the High Court and her parents were recognised as the biological mother and her partner.

Mr Masson played a role in both children’s lives, which included the children spending regular time with him and the children referring to him as “Dad”. When the biological mother and her partner sought to relocate to New Zealand with the children in 2015, Mr Masson opposed this and commenced legal proceedings. This led to the Courts being required to determine whether Mr Masson is a legal parent of B.

What followed was a relatively complex argument in regards to the interplay of State and Commonwealth legislation in regards to this issue, however ultimately the court determined that Mr Masson is a parent of B and the biological mother’s partner, was not.

The Court considered the ordinary meaning of the word “parent” and gave significant weight to the intention of the parties at the time of conception and the actions of the parties in regards to exercising parental responsibility since this time. This included considering the level of involvement by Mr Masson in the child’s life.

The Court did not go so far as to determine whether someone who simply provides semen is to be recognised as a parent, and we will perhaps see this determination in the future.  This does, however, broaden the scope of those who can be considered as a parent and should serve as a warning for anyone seeking to use a known sperm donor. It is very important to discuss and clarify the intention of all parties at the time of conception, which should be recorded in a sperm donor agreement or similar. People should also consider the further implications this can have in areas such as child support and succession law. Unfortunately, this case has not provided the clarity we had hoped in regards to the status of sperm donors generally.  Hopefully, in the future, amendments to the Family Law Act will provide a definition of the term “parent”, which will, in turn, provide even greater certainty for people entering these murky waters.

An experienced family law solicitor Brisbane will be able to provide you with further information and advice about any of the issues raised by this judgment. Contact our team for confidential advice on your circumstances.