Is a Sperm Donor a Legal Parent?

Are you a hopeful parent intending to use a sperm donor to have a child? Or are you a sperm donor intending to assist another in starting or growing their family?

If you or someone you know is considering or has already used a sperm donor to conceive a child, it is important that you are aware of the recent High Court of Australia case of Masson v Parsons which considered whether a sperm donor can be a legal parent.[i]

Mr Masson and Ms Parsons (not their real names), had been close friends for many years, and in 2006, Mr Masson agreed to be a sperm donor to Ms Parsons to her to a child. The parties were successful in conceiving a baby girl through artificial insemination.

Ms Parsons later commenced a de facto relationship and the child resided with the couple.

Mr Masson, at the time of conception, believed that he would assist, support and care for the child and he did so in the following ways:

  • being listed as the father on the child’s birth certificate
  • having a close and loving relationship with the child, including providing financial support and being involved in her health, education and welfare
  • spending time with the child at the discretion of Ms Parsons, which increased over time to 5/14 nights in a fortnight
  • being called and known as ‘Daddy’ by the child and Ms Parsons and her partner’s second daughter through a different donor

All was going well with the arrangement until in 2015, when Ms Parsons and her partner decided to relocate to New Zealand after receiving terrible news that Ms Parsons’ partner had been diagnosed with bowel cancer.

Mr Masson did not want the child to live in NZ, away from him. Mr Masson initiated proceedings in the Family Court of Australia to prevent the Ms Parson and her partner relocating to NZ with the child, for him to have equal shared parental responsibility and to have parenting orders stipulating the time he would spend with the child. Mr Masson sought to spend five nights in a fortnight with the child as well as half of her school holidays.

A simple arrangement between friends resulted in an almost $1 million court battle, going all the way to the highest court in Australia. How did this happen?

What happened in the FIRST court case?

The Primary Judge was required to consider whether Ms Parson’s partner or Mr Masson was the child’s other parent. The Primary Judge found that Ms Parson’s partner did not meet the legislative requirement to be considered a parent of the child as she was not in a de facto relationship with Ms Parson when the child was conceived.[ii]

The question remained as to whether Mr Masson was the child’s other parent. The Primary Judge found that Mr Masson is a parent of the child within ‘the ordinary meaning of the word’ as a result of Mr Masson’s intention at conception to assist in parenting the child, his unawareness of any de facto relationship between Ms Parson and her partner and that he subsequently provided financial support as well as physical care to the child.

As a result, the Primary Judge ordered that Ms Parson and her partner be restrained from relocating to NZ with the child, that Mr Masson spend five nights a fortnight with the child and that Ms Parson and her partner consult Mr Masson before making any long-term decisions about the child.

What happened in the SECOND court case?

Ms Parson and her partner appealed the decision to the Full Court of the Family Court, which held that Mr Masson is not the child’s father under New South Wales legislation, specifically section 14 of the Status of Children Act 1996 (‘NSW Act’). The NSW Act provides that a woman who becomes pregnant by way of a fertilization procedure using sperm from a man who is not her husband, that man is not presumed to be the father of the child. Under the NSW Act, this presumption is irrefutable.

What happened in the THIRD and FINAL court case?

Mr Masson appealed the Full Court’s decision to the High Court of Australia.

The High Court of Australia held that section 14 of the NSW Act did not apply and upheld the decision of the Primary Judge, that Mr Masson is the parent of the child. The High Court essentially made an order that reinstated the orders of the Primary Judge.

When is a sperm donor a parent?

The decision of the High Court to consider Mr Masson, a sperm donor, a legal parent, with the usual parental responsibilities, may rightfully make you nervous to start a family with the use of a known sperm donor.

Whether a sperm donor can be considered a legal parent, will be based on the circumstances of your case and whether the sperm donor could be considered a parent within its ordinary meaning.

Factors that are likely to be considered by a court are if it is found to be the sperm donor’s intention to be a donor for the express purpose of fathering a child that he intends to parent, and/or the donor subsequently becomes involved in the child’s life by spending time with the child and providing support, the donor may be considered a parent.

When a person is considered a parent, they may have the ability to seek parenting orders from the court, as was the case in Masson v Parsons. On the other hand, if a sperm donor is considered a parent, they may also have responsibility to assist in the financial responsibilities of the child, including payments of Child Support.

Whilst Sperm Donor Agreements or Known Donor Agreements are not legally binding, they can provide the opportunity for one parent to establish the parties’ intent on how the donor would, if at all, be involved in the child’s life. They also typically seek to exclude the donor from legal, financial and parental responsibility.

Before entering into any agreement with a known sperm donor, we strongly recommended that you each obtain independent legal advice. Otherwise, if things go sour as it did with Mr Masson and Ms Parsons, you could end up in court not only with legal fees of hundreds of thousands of dollars but also the responsibility to parent a child with the known sperm donor.

If you need advice in relation to a sperm donor agreement, require assistance in drafting one or applying to the court for parenting orders, please contact Rowan Skinner & Associates Lawyers to arrange a complimentary 15-minute consultation.

 Bibliography

[i] [2019] HCA 21.

[ii] Family Law Act 1975 (Cth) s 60H(1)(a)