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  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:
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:
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.
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.