Some implications of Masson v Parsons

I have been asked to post this letter online, about my views of the recent decision of the High Court in Masson v Parsons, to assist ANZICA members. 

Implications of Masson v. Parsons

I refer to the recent High Court decision in Masson v. Parsons – and as a result I am writing this letter for the benefit of ANZICA members.  If deemed suitable, I ask that it be circulated widely. 

The case – Masson v. Parsons [2019] HCA 21

Mr Masson was a long-time friend of the first Ms Parsons.  He agreed with her to supply her at home with a quantity of his sperm, with the result that she became pregnant and gave birth to a daughter.  Ms Parsons was later found by the trial judge to have formed a relationship with a second woman whom she later married, the second Ms Parsons.  The second Ms Parsons helped the first Ms Parsons with the at-home insemination. 

The critical question in the case (for which I understand Mr Masson spent $2,000,000 in legal costs overall so far) was who were the parents of the child.

At trial, the judge found that the two Ms Parsons were not living in a de facto relationship at the time of the artificial conception procedure and therefore the second Ms Parsons was not a parent.  The parents for the child were therefore either the birth mother, the first Ms Parsons alone, or she and Mr Masson. 

Both Ms Parsons urged the court on that occasion that Mr Masson not be recognised as a parent. 

The trial judge found that Mr Masson was a parent under the Family Law Act 1975 (Cth).  Even though he didn’t fit a category of parent listed under that Act, as a matter of fact he was a parent because in that case:

·         biology;

·         intention;

·         parenting.

The child had always called Mr Masson “daddy”.  The child was aged almost 10 at the time of trial.  Mr Masson was recorded on the birth certificate as the father. 

The first appeal

The Parsons appealed that judgment.  The Full Court of the Family Court of Australia found that Mr Masson was not a parent.  It said that previous cases decided in the Family Court that looked at the question of intention had not been considered by the Full Court of the Family Court – which rejected that idea. 

The Full Court said that someone was a parent under the Family Law Act only if they were specifically listed under one of the categories of the Family Law Act.  Furthermore, there was a cooperative Federal State scheme between the Family Law Act and State and Territory Status of Children Acts.  Therefore, if someone were not listed under the Family Law Act as a parent, they could only be a parent at law if they were recognised under their State or Territory Status of Children Act. 

Because Mr Masson was not recognised as a category of parent under the Family Law Act and was not recognised under the Status of Children Act 1996 (NSW), he was not a parent.

Furthermore, it was therefore irrelevant as to:

·         biology;

·         intention;

·         “parenting”,

as to the determination as to whether or not Mr Masson was a parent.

High Court appeal

Mr Masson in turn sought special leave to appeal to the High Court.  That special leave was granted by Chief Justice Kiefel in December.  The appeal was heard by the full seven member bench of the High Court just before Easter.

Supporting Mr Masson in his submissions were the Independent Children’s Lawyer and the Attorney-General for the Commonwealth.  Supporting the Parsons was the State of Victoria. 

The Commonwealth argued that the Family Law Act reigned supreme over the State and Territory Status of Children Acts.  It argued that the Full Court had got it wrong and that who was a parent under that Act could be determined on a case by case basis and was not limited to the listed categories under that Act, but was a question of fact.

Victoria argued that there was a scheme between the Family Law Act and the State and Territory Status of Children Acts, that Mr Masson was not a parent and that there was a conflict between the Family Law Act and the Child Support (Assessment) Act 1989 (Cth) as to who was a parent.

High Court found that Mr Masson was a parent

Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle and Gordon gave a joint judgment.  Justice Edelman agreed with the outcome, but gave a separate judgment as to a constitutional point.

Their Honours clarified the definition of who was a parent.  They said:

            “There is no basis in the text, structure or purpose of the [Family Law Act] to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning and the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary accepted  English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”

Their Honours accepted in essence the submissions of the Commonwealth even if one is not within the specific provisions of the Family Law Act specifying who might be a parent:

            “The question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”…That is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”

The majority rejected the argument that the ordinary, accepted English meaning of “parent” excludes a “sperm donor”:

            “To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure.  Those are not the facts of this case.  Here, as has been found – and the finding is not disputed – [Mr Masson] provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done.  Accordingly to characterise [Mr Masson] as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.”

What role for State and Territory Status of Children Acts?

As the majority said:

            “If a person does qualify as a child’s parent either under section 60G by reason of adoption, or according to section 60H [an artificial conception procedure], or according to ordinary acceptation of the word “parent”, it is beside the point that a State or Territory provision like section 14(2) of the Status of Children Act otherwise provides…[A]s is a parent from its text, context and history, div[ision] 1 of P[ar]t VII of the Family Law Act leaves no room for the operation of contrary State or Territory provisions.”

In other words, if there is a conflict between the relevant provision of the Status of Children Act and the Family Law Act, the latter prevails and the former is “beside the point”. 

Implications of the decision

1.      Clearly men who are in the same position as Mr Masson are now parents.  There has been a conflict in decisions from the Family Court for many years.  There is now clarity.

2.      Therefore these men have parental responsibility under the Family Law Act and under the Australian Passports Act, the child being entitled to citizenship from them (if they happen to be Australian citizens).  The men may now have a liability to pay child support and the child may be able to inherit from them.

3.      When the men thought that they might be sperm donors but wanted an ongoing relationship with the child, they may be characterised as parents despite their thinking otherwise.

4.      For the single mothers who wanted a known sperm donor to play an uncle style role, they are now stuck with another parent.

5.      The High Court made plain in another passage that it is not certain whether there is a limitation of two parents under the Family Law Act.  There may be the possibility of having three or more. 

6.      A transman who is giving birth and is single becoming pregnant with donor sperm is in the same position as a single birth mother. 

7.      Each case is to be decided on its own merits.  It will likely be many years before we have certainty about who is and who is not a parent.  There are likely to be cases that have not yet been imagined that will need to be tested through the prism of Masson v Parsons as to who is and who is not a parent. 

8.      Mr Masson reportedly spent $2 million in his legal fees up to the High Court hearing.  It is likely that if these cases reach court, there may be lengthy trials about intention – at significant cost to the party and burden to the taxpayer.

9.      It is likely that men who have donated to lesbian couples will have seen the judgment and will want their rights recognised as parents. 

10.  It is likely that people who go overseas for surrogacy but had previously not been recognised by the Family Court as parents will now be recognised as parents.

11.  It is uncertain in domestic surrogacy cases where there is a single surrogate whether the intended father is named on the birth certificate as a parent before the order is obtained.

Prevention is better than cure

1.      Intended parents who have a known sperm, egg or embryo donor or donors should always have a properly drafted donor agreement.  It is not certain that these are legally binding but they set out intention clearly.  Intended parents who have a clinic recruited donor, i.e. one who is not known to the intended parents, do not hold the same legal risks. 

2.      Intended parents who have a known donor should always obtain legal advice and fertility counselling with the donor and the donor’s partner. 

3.      It is not clear if a known egg donor to a single woman may be the other or indeed the only parent.  It will depend on intention. 

4.      It is advisable for clinics to obtain a copy of any written agreement reached between the parties and any report of a fertility counsellor.

5.      It is advisable for clinics to review their consent forms.  Just because someone is not the partner of the birth mother does not mean they are a donor.

Western Australia

At this stage, the decision in Masson v. Parsons has limited application in Western Australia, because the Family Law Act only applies in Western Australia to children of married couples.  However, the provisions of the Family Court Act 1997 (WA) are very similar in relevant respects to the Family Law Act 1975 (Cth).  The outcome in Western Australia is uncertain. 

Payment and advertising

There is no change to the laws concerning payment and advertising for donors.

Change of intention

A person may enter into an arrangement to provide gametes or embryos with the intention of being or not being a parent.  That intention may be critical as to whether or not that person or that couple is/are parents under the Family Law Act.  If a clinic becomes aware of a change of intention, that should be recorded and consents by all concerned are executed accordingly.

ABC 24 interview

Yesterday I was interviewed by ABC 24 about a couple in the US, who apparently ended up with a pair of Caucasian boys, instead of a pair of Asian girls, they say due to an IVF clinic's error.

The chances of that happening in Australia are extremely low:see the interview here via Facebook or Linkedin.

One week and one day until my baby daughter is born!

In one week and one day from now, if not sooner, my baby daughter will be born. I say my, but of course, I mean our- a baby girl to my husband Mitchell and me. We are both over the Moon with excitement.

Our surrogacy journey has occurred from beginning to end in Brisbane. Unlike many of my clients,  we have not had to trek overseas for an egg donor or a surrogate or both, but had the luxury of being able to take all our steps in our home town.

We have been supported by many people- but importantly two extraordinary women. Our egg donor is a friend. I'll call her Fiona. Fiona values her privacy. She willingly and kindly donated eggs- and endured daily injections, followed by minor surgery, to give us the gift of life. On top of all that, Fiona and we had to take part in counselling, to make sure that she was donating for all the right reasons, and that we were accepting her donation for all the rights reason as well. The other  woman - of course- is our amazing surrogate. I will call her Jo. Jo values her privacy, too.

One might think that Jo's journey is extraordinary enough- being prepared to endure nine months' pregnancy, followed by the pain of giving birth, all with the aim of generously giving the gift of life- but this particular journey has been even the more extraordinary than most. When Jo told us that she wanted to be our surrogate, it brought tears of joy to both of us. We were so grateful for such an extraordinary gift. At the very same time, I had another emotion swirling around in my brain- much like watching a top loading washing machine at work. I thought: "This is what happens to my clients."

To get pregnant wasn't as simple as rocking up to the clinic and asking to get pregnant straight away. There were so many checks and balances in the surrogacy process that at times the process can seem overwhelming. Aside from the medical and ethical checks from the clinic,  there is the surrogacy arrangement to be signed, counselling to be gone through, checks about the hospital, and such mundane but vital issues such as insurance.

The three of us sitting together at an antenatal class will forever be a cherished memory for me. The three of us- together- were going to make a baby.

This pregnancy then resulted. It has largely been a smooth journey, although with any pregnancy it has had its ups and downs.

And so in one week and one day, if our daughter is not born sooner, she will then be born. She will be surrounded by love. Our lives will be changed forever. Our daughter will be, in the words of a judge: "a long awaited and precious gift, much loved by (her) family and a miracle of modern medicine."

I never expected to be undertaking my own surrogacy journey. When I saw my first surrogacy client back in 1988, surrogacy of any kind in Queensland was illegal- commercial, altruistic, gestational or traditional, whether in Queensland or outside if carried out by Queenslanders. It didn't matter. It was illegal. The idea that I might be having a child later on through surrogacy was simply unimaginable. Since that time I have advised in over 1500 surrogacy journeys. Of course, I could not advise in ours.

My associate of 15 years Karen Gough advised us on the legal process. I could not advise myself about my own surrogacy journey!

High Court: dad is dad, not a sperm donor

A known sperm donor to a single woman is a parent, not a sperm donr, according to the High Court.  The High Court today in Masson v. Parsons held unanimously that Mr Masson was a parent.  Some years ago, Mr Masson had agreed with his friend of many years, Ms Parsons to become a parent.  He supplied a quantity of sperm to achieve an at home insemination.  A child was conceived and born. 

They later fell out.  At trial, the question was whether Mr Masson was a parent.  The trial judge, Justice Cleary, found that Mr Masson was a parent because even though he was not specifically named in categories under the Family Law Act as a parent, as a matter of fact he was a parent because in his circumstances due to biology, intention and parenting.

Ms Parsons and her wife, the second Ms Parsons then appealed that decision to the Full Court of the Family Court, which in turn upheld the appeal, saying that the trial judge was incorrect.  The reasoning of the Full Court of the Family Court was that there was a scheme of legislation between the Family Law Act and the various State and Territory Status of Children Acts and that – as part of that scheme, if there weren’t specific characterisation of someone in the place of Mr Masson under the Family Law Act, then whether he was or was not a parent was determined by the Status of Children Act.  Under the New South Wales Status of Children Act, Mr Masson was not a parent – and therefore the Full Court held, he was not a parent.

High Court decision

Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle and Gordon held in a joint judgment that Mr Masson was a parent.  Justice Edelman gave a separate judgment, but agreed with the outcome. 

In the joint judgment. their Honours said:

            “Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning.  Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning.”

Their Honours said:

            “So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or otherwise defined in the Family Law Act as parents.  And it does not mean that the only persons who may seek parenting orders under section 61D are parents according to ordinary acceptation or otherwise defined as parents.  The range of permissible applicants is broader than that.  But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds in the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.”

Their Honours noted an English case in which according to English contemporary conceptions of parenthood:

“There are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically.  That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue…Just as the question of parentage under the legislation with which [the English judge] was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person applies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.

[The parenting provisions] of the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning.  In some respects, most notably in section 60H, the Family Law Act may be seen as expanding the conception of “parent” beyond ordinary acceptation by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures. 

Additionally, under section 60G, a person may qualify as a parent of a child born of an artificial conception procedure by reason of the persons’ adoption of the child under the law of a State or Territory.  But ss60H and 60G are not exhaustive of the classes of persons who may qualify as parents of children born of artificial conception procedures.  It remains that, apart from these specific provisions, the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”.  And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”

Their Honours said:

            “The evident purpose of Div 1 of Pt VII of the Family Law Act is that the Commonwealth is to have sole control of the provisions that will be determinative parentage under the Act.”

Their Honours went on to say:

            “Such as this structure and evident purpose of the provisions of [Division 1 of Part VII of the Family Law Act, i.e. the parentage provisions] that although ss60G and 60H are not exhaustive of the persons who may qualify under the Family Law Act as parents of children born of artificial conception procedures, if a person qualifies as the child’s parent either under s60G by reason of adoption or under s60H, or according to ordinary acceptation of the word parent, State provisions like ss14(2) and 14(4) of the Status of Children Act are irrelevant.”

The Court rejected the submission that the ordinary accepted English meaning of “parent” excludes a sperm donor:

            “As has been explained, the ordinary accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand.  To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure.  Those are not the facts of this case.  Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done.  Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.

            It is unnecessary to decide whether a man who relevantly does know more than provide his sperm to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”.  In the circumstances of this case, no reason has been shown to doubt the primary judge’s conclusion that the appellant is a parent of his daughter.”

How does this case impact on others?

It is clear:

·         That if a sperm donor provides sperm and wishes to be a parent, but provides it to a couple, then ordinarily the couple will be the parents and the sperm donor will not. 

·         If the sperm donor provides sperm to a single woman with the intention of his being a father, then ordinarily he will be a father.

What is unclear is what if the intended father is intended to be a parent through surrogacy.  A decision of the Family Court in 2017, using a similar line of reasoning to that of the Full Court of the Family Court decision in Masson and Parsons said that there was a national scheme between the Family Law Act and the State and Territory Status of Children legislation and that one could only be a parent if one came within the State and Territory legislation unless in terms of surrogacy there was a State and Territory parentage order in favour of the intended parents.

It would have to be said that that decision now appears to be doubtful.  However, the High Court did not specifically deal with that decision in its judgment.  Intended parents who undertake surrogacy overseas may still not be recognised as parents under Australian law given that decision of the Family Court. 

What if there is a single surrogate?

If there is a single surrogate with an intended father who supplies his sperm in a domestic surrogacy arrangement, under State and Territory law generally he will not be accepted as the parent. 

It remains uncertain whether the intended father in that circumstance will be a parent.  Following the reasoning of the High Court, he will be a parent under the Family Law Act.  Whether this will prevent a transfer of parentage is not clear.

There will need to be legislative reform of surrogacy legislation so that those who undertake surrogacy will have it clearly set out who is a parent – consistent with this ruling.