The High Court has just handed down judgement in the case of Masson v Parsons (Court pseudonyms) which concerned sperm donors and their parental status at law.

The outcome of this case will likely have a profound effect on Family Law matters concerning artificial insemination.

This case involved a same-sex couple (Parsons) that were relocating to New Zealand with their child who was born through artificial insemination. The sperm donor (Masson) was a friend of the mother who birthed the child. Masson sought to stop the relocation as he wished to be recognised as the legal father of the child.

The High Court confirmed the parentage rights of the sperm donor.

The best interests of the child

In Family law, there is a presumption that shared parental responsibility is in the best interests of a child. Accordingly, a child should be given access to both parents.

The chief issues considered by the High Court were whether the Commonwealth or State (NSW) law applied to sperm donors with regards to their legal status as a parent.

The Commonwealth law did not exhaustively define whether a sperm donor was a parent – this would allow for Masson to potentially be found to be the parent of the child and therefore stop the relocation.

On the contrary, the State law provided that a sperm donor was presumed to not be a parent.

The Family Court initially found that Masson was to be recognised as the father. This was overturned on appeal to the Full Court of the Family Court.

Definition of parent

On appeal to the High Court, the Commonwealth law prevailed over State law and Masson, the sperm donor, was recognised as the father of the child. In turn, this resulted in stopping the relocation by the mother.

The High Court determined that the definition of “parent” should be interpreted according to the ordinary accepted meaning of “parent” and that a “sperm donor” suggests a minimal level of involvement in the child’s life.

In this case, the father provided his semen to facilitate the artificial conception of his daughter on the understanding that he would be the child’s parent.

Furthermore, he was registered on the birth certificate as her parent and provided financial and general welfare support throughout her life.

These actions indicated that Masson was undertaking a parental role which therefore fell into the ordinary definition of “parent”.

This ruling is limited to sperm donors who demonstrate they meet this definition in cases where the biological mother did not have a spouse or de facto partner at the time of conception.

Joshua Williams

Impact of decision going forward

A possible outcome is that people who have provided sperm, anticipating that they will be treated merely as sperm donors, may be found to be parents after all.

A court will now determine their parental status depending on their level of parental interaction they have had with the child.

They will consider the parties intention as to parentage at the time of conception, the amount of time the donor has spent with the child and any other support, such as financial, that they have provided the child.

If the donor meets the definition of parent, corresponding obligations such as child support issues and estate obligations may be created.

Those considering using artificial insemination should now take care when considering the amount of contact the sperm donor should have with their biological children – as the court will consider the child’s fundamental right to both parents if the donor meets the definition of parent.

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