Sperm donor who helped parent child named legal father

A sperm donor involved in parenting a child with his friend is legally the child’s father.

The High Court decision to name the sperm donor the legal father is unprecedented.

The High Court has ruled that a sperm donor who was involved in parenting a child with his friend of 25 years is legally the child’s father, in a landmark case that could have implications for thousands of Australian families.

The ruling this morning, which has overturned a decision of the full Family Court, could mean that single women who use known sperm donors and involve them in their children’s lives may find it impossible to exclude them from having parental rights.

The legal dispute was triggered when the child’s mother and her same-sex partner tried to take the girl and her younger sister to live in New Zealand.

The High Court has this morning ruled the girl’s biological father is also legally her parent.

The man, given the court pseudonym “Robert Masson”, had been listed on the girl’s birth certificate and paid child support. He had also shared in her care from birth — changing her nappies, attending her school and daycare events and taking her to after-school activities.

The High Court found Mr Masson had “an ongoing role in the child’s financial support, health, education and general welfare”. He had been described by the trial judge “as enjoying an extremely close and secure attachment relationship with the child”.

He had also treated the child’s younger sister as his daughter, although she was not his biological child. Both had called him “daddy”.

The full Family Court found last year that although there had been “a serious divergence of judicial opinion” in the area, it was a “constitutional heresy” to treat Mr Masson as the legal father. This is because under NSW law a sperm donor is presumed not to be a father unless married or in a de facto relationship with the child’s mother at the time of conception.

According to the full Family Court, the state law applied, because the federal law did not provide “otherwise” and the presumption was “irrebuttable”.

However, the High Court today overturned that decision. It found the NSW law relating to parentage was not “picked up” by the commonwealth law.

The majority of judges said there was “no basis in the text, structure or purpose” of the Family Law Act to suppose that Parliament intended the word “parent” to have any meaning “other than its natural and ordinary meaning”.

Whether someone qualified as a parent, was a question of fact and degree to be determined by the ordinary, contemporary understanding of the word “parent” and the circumstances of the case, the judges said.

“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,” the judges said.

“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.”

The initial trial judge, Family Court judge Margaret Cleary, had ruled that the mother, “Susan Parsons”, should be prevented from returning to New Zealand, her country of birth, with her wife, other than with Mr Masson’s consent, because it would not be in the child’s best interests. Instead, she said the children should live with Ms Parsons and continue to spend regular weekday, weekend and holiday time with their father in Newcastle.

“I have concluded that the risks of devaluation of the children’s relationship with Robert and his extended family is a risk that should not be taken when the children have thrived and done well in the arrangements which all three parties have put in place for them over the years since the birth of each child,” she said.

The dispute, which began about five years ago, is believed to have cost the parties more than $1.5 million.

Family lawyer Stephen Page has previously told the full Family Court decision had made the law “crystal clear”, which would be reassuring to IVF clinics advising their clients, but more flexibility was needed.

Attorney-General Christian Porter said the decision was “welcome”.

“The focus of my intervention was to ensure that the Commonwealth law remains preeminent in determinations about what constitutes a parent,” he said.

“My role, and that of the Commonwealth in this case was not to argue whether the person was or wasn’t a parent. It was simply to ensure that the Commonwealth law remained the foundation stone for the court to make its decision.”

In Ontario, Canada, up to four people could be named as a child’s parent, if that was what was intended.

“There are going to be more and more cases where people feel they have not been properly recognised because of rigid presumptions,” he said.

Lawyer Tahlia Bleier, from Steiner Legal, which represented Mr Masson, welcomed the decision.

“The High Court’s decision today confirms that the family law is in line with Robert and his daughter’s reality,” she said. “He is now his daughter’s dad, in every sense of the word.”