The Family Court of
Australia in a recent decision has definitively determined that a known sperm
donor to a single woman is not a
parent under the Family Law Act
because he is not a parent under the relevant Status of Children Act.
The case, called Parsons and Masson, decided unanimously
by three judges on appeal has overturned the line of authority that began with Groth and Banks [2013]. In that case, the trial judge said that
because the Family Law Act recognised
two parents, then a known sperm donor who wished to have an ongoing
relationship with the child (when the birth mother was single) was a parent under the Family Law Act, despite the Victorian Status of Children Act that said that the birth mother was the only
parent. The Court ruled that because
there was an inconsistency between the federal Family
Law Act and the state Status of Children
Act, then under section 109 of the Commonwealth
Constitution, the Family Law Act
prevailed over the Status of Children Act.
The decision in Groth and Banks sent alarm bells
throughout IVF clinics because it means that men who were previously assumed
not to be parents were now parents.
Since that decision, it has been unclear whether donors were or were not parents. Now that uncertainty appears to be at an end.
In Parsons and Masson, Mr Masson was a known sperm donor to Ms
Parsons. At the time of conception Ms
Parsons was single. Later, Ms Parsons
developed a de facto relationship with a female partner whom she later married, also called Ms
Parsons.
Justice Thackray
undertook a comprehensive review of case law.
His Honour said:
“The
line of authority followed by the primary judge effectively postulates that the
relevant law is to be founded in the federal Act. The appellants submit, in effect, that this
is a constitutional heresy given that there is a State law with obvious
application to the circumstances. I
agree, since this was a case heard in federal jurisdiction and it was mandatory
for section 79 of the Judiciary Act to be applied.”
Section 79 of the Judiciary Act says in general terms:
“The
laws of each state or territory, including the laws relating to procedure,
evidence, and the competency of witnesses, shall, except as otherwise provided
by the Constitution of the laws of the Commonwealth, be binding on all Courts
exercising federal jurisdiction in that State or Territory in all cases to
which they are applicable.”
Accordingly, his Honour
found that as the sperm donor was not married to the birth mother or in a de
facto relationship with her, it followed that under the Status of Children Act of New South Wales that he was presumed not to
be the father of the child and therefore ought not to have been treated as
being her parent for the purposes of the Family
Law Act.
His Honour said:
“For
completeness, [the child] was never adopted by the respondent, in which case
she would be his child regardless of biological origin, and she was not
conceived under a surrogacy arrangement, in which section 60HB would come into
play.
There
are no other provisions of the federal Act which were said to have any
relevance in determining who is a “parent”…
It
follows from this survey of potentially relevant provisions of the federal Act
that all three bases upon which her Honour found that the respondent is [the
child’s] “parent” cannot be supported by reference to the text of the federal
Act alone.
First,
while as a matter of ordinary English usage the word “parent” will be satisfied
by identifying the male whose gametes were used for a child to be conceived,
biology alone is not determinative in deciding who is a “parent” for the
purposes of the federal Act, since a biological connection is not
required. This can be seen from the
provisions dealing with adoption, surrogacy and artificial conception
procedures involving consenting partners.
Secondly,
there is nothing in the federal Act to suggest that the expectation of a man
that he will “parent” a child born using his genetic material is relevant in
determining whether he is a “parent” for the purposes of that Act. The only thing that comes close is the use of
the words “intended parent” in section 60H(1), but that subsection concerns
spouses or de facto partners, and it is not suggested the respondent was ever
married to or a de facto partner of the first appellant.
Thirdly,
there is nothing in the federal Act to suggest that the state of knowledge of
the imputative father about the nature of the mother’s relationship with
another person is of any relevance to his status in relation to the child. If the child is born to a woman who is married
to, or in a de facto relationship with, another person, and the provisions of
section 60H(1) are otherwise satisfied, then regardless of his state of
knowledge, the male who had provided the genetic material is not the father of
the child, since the child is deemed not to be his.”
And if there were any
doubt whatsoever, his Honour went on to say:
“Whatever
may have been said by trial judges, it has always been accepted by this Court
that the intention of a person to “parent” a child does not make them a
“parent” within the meaning of the federal Act.
So much should be clear from the distinction the Act draws between a
“parent” and a “step-parent” – a distinction which would apply even to a male
who had lived with and treated a child as a member of his family from the time
of birth.”
The time for appeal of
this decision has not expired. There is
still the ability of Mr Masson to seek special leave to appeal to the High
Court.
This decision has given
certainty:
1.
a
donor of gametes whether known or anonymous is not a parent unless:
2.
the
donor is recognised by State or Territory status of children legislation as a
parent – typically having been married to or in a de facto relationship with
the birth mother at the time of the procedure;
3.
or
otherwise recognised as a parent through surrogacy or adoption.
The “heresy” of Groth and Banks
is now at an end, subject to any appeal and determination by the High Court.
