Wednesday, June 19, 2019

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.

Monday, June 17, 2019

Victoria; Changes to Patient Review Panel surrogacy rules

Following the recent ART interim review report last year into ART regulation in surrogacy, the regulator of surrogacy  in Victoria, the Patient Review Panel, has scrapped all its previous guidance and said there will be new guidance come 1 July 2019. Currently there is no information about what guidance the Patient Review Panel provides- as to whether surrogacy can or cannot happen in Victoria. In the meantime Victorians just have to guess at what might be approved or not approved.

The new guidance is not known, saved that I have been told by a reliable source that the Patient Review Panel will not approve a surrogate who is 45 years or older. Other States do not have such a hard and fast rule.

The ART review was not given the task to role of the Patient Review Panel. Instead, it was made quite plain that the Patient Review Panel was outside its terms of reference. Nevertheless, the review seems to have touched a raw nerve with those who have deal with the Panel. The review felt compelled to respond and put in a separate section about the Panel. While the review said that it had not investigated the claims as they were outside its terms of reference, nevertheless "the perceptions described are common".

The PRP was seen as being slow:


"There is a perception among some respondents to the consultation, including both those who have had matters determined by the Panel and providers, that Panel processes are slow. This can be frustrating and distressing for people.

"The panel put us off the first time as they wanted to find out more information about my prognosis ... this felt totally out of line. Our fertility specialist, lawyer and oncologist professionally expressed why this wasn’t ok. This put our progress back over a month.
...
The panel is busy, and has huge delays. I am turning 40 next month. My chances are getting lower every day as I age."


The workload of the PRP seems to increase year by year. Ways were suggesting of easing up that workload, so that vital business could still be done in a  timely manner. 

As one surrogate said:


"[There should be] more information about what to expect from the PRP process in Surrogacy. I didn’t mind the PRP experience but the anxiety of not knowing what exactly we were walking into and how much pressure was put on was hard to cope with."

In the words of the report: 



"Others, including individuals who have had matters heard by the Panel, report that the experience itself can be confronting and difficult. One clinic relayed feedback from patients that ‘the meetings are intimidating, daunting, unpredictable and that they feel the system is punitive’. 

A number of individuals told the Review they found the conduct of Panel hearings to be overly formal and legalistic. Some said they were asked questions they found intrusive, insensitive or rude. This was particularly the perception of some from the LGBTQI+ community."

Further:



"Some stakeholders, including clinics, recipients of treatment and their representatives, have made claims that the Patient Review Panel is not consistent in the information it seeks from clinics or from parties to surrogacy arrangements.
They change the 'rules' for different people, allowing some flexibility while being difficult and unyielding with others about the same issues.
Survey response – recipient of assisted reproductive treatment
Others stated that there is a lack of transparency surrounding Panel processes and decision making, or that the Panel may seek information or set requirements that go beyond what is required to make determinations under the Act. For example:
      A number of clinic representatives commented there is a lack of clarity as to what constitutes acceptable evidence to demonstrate a deceased partner’s consent for the posthumous use of gametes. One clinic proposed that the Patient review guidance note on this matter requires review.
      People involved in surrogacy arrangements stated that the guidance note regarding the approval of surrogacy arrangements required review to accurately reflect the role of the Panel in these cases.
      A clinic reported that, in relation to surrogacy matters, the Panel is ‘requesting multiple legal opinions and comparing the contents, rather than ensuring the patient has sought legal advice and understands the advice provided’.
      A surrogate understood that the PRP requires all parties, including donors, to attend hearings in person, even where parties reside interstate and travel has significant impact on health, employment and child care.
I think the Patient Review Panel should be more transparent, approachable, and less dogmatic in its approach and processes.
Survey response – surrogate"
 
The only other regulator of surrogacy in Australia that needs to give approval before a surrogacy journey begin is the Reproductive Technology Council in Western Australia. A government review there has recommended the abolition of the Council. No other state or territory has a state regulator which needs to approve a surrogacy journey before it can begin.