Tuesday, May 7, 2019

High Court considers who is a parent

The extraordinary tale of Masson and Parsons was heard before the High Court just before Easter- to work out whether Mr Masson is a parent. Judgment has been reserved. It is likely to be some months before we know an outcome.

Trial judge says that Mr Masson is a parent

Mr Masson was in court against the birth mother, the first Ms Parsons, and her wife, the second Ms Parsons. Mr Masson is a gay man who wanted to be a dad. He entered into a co-parenting agreement with the first Ms Parsons. He supplied a quantity of his sperm to Ms Parsons- with the result that following an at home insemination, she conceived and then gave birth to a child.

The trial judge found that Mr Masson was a parent under the Family Law Act due to:
  • his intending to be parent
  • he being genetically the parent
  • his being engaged in parenting of the child.
Both Ms Parsons were not happy with that outcome and appealed.

The Full Court said he is not a parent

The three judges of the Full Court of the Family  Court upheld the appeal. The approach taken by the trial judge to say that Mr Masson was a parent was "constitutional heresy". Because the Family Law Act did not specifically provide for someone like Mr Masson as a parent, then the requirement was to go back to State legislation- in this case the NSW Status of Children Act to determine whether or not Mr Masson was a parent. As the NSW Act did not provide for Mr Masson to be a parent, therefore he was not a parent, irrespective of:

  • his intending to be a parent
  • he being genetically a parent
  • his being engaged in parenting of the child.
Mr Masson appeals to the High Court

Mr Masson was unhappy with that outcome, and appealed. An appeal to the High Court is not as of right, and instead needs leave of the court first. Leave is only granted rarely. Mr Masson obtained special leave from Chief Justice Kiefel in December.

When the matter came before the Full Bench before Easter:

  • Mr Masson, the independent children's lawyer and the Commonwealth argued that the Full Court had got it wrong, and that Mr Masson was a  parent- because the category of who was a parent under that Act was not fixed, and therefore that Act overrode the NSW Act under the Commonwealth Constitution.
  • The two Ms Parsons and the State of Victoria argued that the Full Court got it right, because they said there is a consistent scheme between the Commonwealth, the States and Territories about who is and who is not a parent- and Mr Masson therefore is not a parent.

We wait and see what approach the High Court takes. If the High Court decides that Mr Masson is a parent, then it is likely it will do so on the basis invited by the Commonwealth- namely every case needs to be decided on its own facts about whether someone is or is not a parent.

The three pronged test is commonly used in the US to determine parentage of children conceived through assisted reproductive treatment- the most significant element being whether or not someone intended to be a parent. If they did not intend to be a parent then whether they are genetically a parent does not make them so. By contrast, just because someone is not genetically  parent but intended to be a parent, then they may be found to be a parent.

We are living in the ancient Chinese curse: "May you live in interesting times."
 

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