Who is a parent? Who is a parent?

Who is a parent?

5 August 2019 | Surrogacy

Scientific advancements in assisted reproduction, increased availability of donor material and growing cultural acceptance of surrogacy and artificial conception means that the definition of family, or who is  a parent, is evolving very rapidly, but has legislation kept pace?

The High Court’s decision of Masson v Parsons (2019) HCA 21 received significant coverage in the media.  The headlines suggested that a sperm donor, who intended to be nothing more, was deemed by the court to be a parent with all the obligations that would bring. 

Did the decision of Masson v Parsons change the law with respect to the responsibilities of parenthood and, in particular, the responsibilities of the party who donates genetic material?

The short answer is no.

Before the High Court, the case boiled down to a constitutional argument about whether the federal legislation was sufficient to determine the dispute, or whether there was a gap in the federal legislation which rendered state law applicable.

By way of brief background:

  • At first instance the trial Judge held that Mr Masson was a “parent” for the purpose of the Family Law Act 1975 (Cth);
  • In reaching that decision it is relevant to note that Mr Masson and Ms Parsons (the mother) were friends at the time of conception and that Mr Masson donated his sperm with the intention of playing a role in the child’s life;
  • At the time of artificial conception Ms Parsons was not in a marital or defacto relationship with another person;
  • Mr Masson was recorded as the father on the child’s birth certificate and had provided physical, emotional and financial support to the child;
  • The trial Judge ordered that Mr Masson had parental responsibility for the child and restrained the mother and her then partner from relocating the children’s residence to New Zealand.

Ms Parsons appealed.  The Full Court upheld the appeal of Ms Parsons and overturned the trial Judge’s decision. 

The Full Court said that s.14 of the Status of Children Act 1996 (NSW) applied, which operates as an irrebuttable rule of law 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 Full Court held that because the matter was within the federal jurisdiction, s.79 of the Judiciary Act 1903 (Cth) picked up s.14 of the Status of Children Act and applied it as a law of the Commonwealth.  

Mr Masson sought leave to appeal to the High Court of Australia and leave was granted.  The High Court of Australia allowed the appeal by Mr Masson and set aside the orders of the Full Court.

The High Court held:

  • Section 14(2) of the NSW Status of Children Act is incapable of being picked up by s.79 of the Judiciary Act and applied as a law of the Commonwealth;
  • Division 1 of Pt VII of the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is taken to have its ordinary English meaning;
  • Section 60H of the Family Law Act may be seen as expanding the concept of “parent” by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures, including adoption under s.60G;
  • Whilst s.60H is not exhaustive, the Family Law Act is “complete upon its face” and there is no room for the operation of contrary state legislation.

The decision of the trial Judge at first instance may have been different if Ms Parsons was in a defacto or marital relationship at the time of the artificial conception procedure with Ms Parson’s partner being an intended parent pursuant to s.60H(1) of the Family Law Act. 

What about surrogacy?

Surrogacy is the act of carrying and giving birth to a child in order to give that child to another person as the intended parent.

Australia’s surrogacy laws are a patchwork of individual state acts, however, similar principles apply across the states:

  • The intended parents must demonstrate they cannot either conceive or carry a child;
  • A surrogacy arrangement is entered into prior to conception which allows the intended parents to apply for a parentage order after the child’s birth;
  • Until a parenting orders is made, the surrogate is the legal parent;
  • A parentage order allows the intended parents to be legally recognised as the child’s parents after the child’s birth;
  • Surrogacy must be altruistic; it cannot be a commercial arrangement.

In many respects, Australian law has addressed the needs of the community by providing a pathway for intended parents and the surrogate to give effect to their agreement by granting legal recognition to the intended parents although this is likely to be an area of continuing legislative change.

Allison Caputo

Allison Caputo

Special Counsel