In the recent case of Parsons and Anor & Masson  FamCAFC 115, the Full Court of the Family Court held that sperm donors are not legal parents of children born via artificial technology using their sperm, regardless of the mother’s relationship status at the time of conception. The judgment overrides the authority of Groth & Banks, which recognised a parentage order could be made in the appropriate case for sperm donors where birth mothers were not married or in a de facto relationship at the child’s conception.
The appellants were Ms Susan and Ms Margaret Parsons, a same-sex couple with two children – ‘B’ and ‘C’. Susan Parsons was the biological and birth mother of both children, conceived by artificial insemination. The respondent, Mr Robert Masson, was the biological father of B. At the time of B’s conception, Susan Parsons was not in a de facto or married relationship. The trial judge followed Groth v Banks to find that Mr Masson was the legal parent of B under the Family Law Act. Both B and C spent regular time with Mr Masson and called him ‘Daddy’. The Parsons wished to relocate to New Zealand – a move opposed by Mr Masson who wanted to continue spending time with the children.
The appeal largely focused on the question of whether Mr Masson was B’s legal parent.
The Full Court held that as the Family Court exercised federal jurisdiction, s 79 of the Judiciary Act 1903 (Cth) must be applied. Section 79 provides that ‘the laws of each State or Territory…shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable’. The Full Court emphasised that the test is whether the Commonwealth Act ‘otherwise provides’, so as to make it inconsistent with the State Act.
Section 14(2) of the Status of Children Act 1996 (NSW) provides that ‘if a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy’. This presumption is non-rebuttable (s 14(4)). (Similar provisions are made in the Status of Children Act 1974 (Vic)).
It was held that s 60H of the Family Law Act, relating to parentage of children born via artificial conception procedures, does not ‘otherwise provide’ within the meaning of s 79 of the Judiciary Act. As s 60H does not require recognition of parentage of donors, it leaves room for s 14 of the State Act to apply. Further, there is no constitutional reason why the State legislation should not apply. Thus by virtue of the Judiciary Act, s 14 of the Status of Children Act represents the law. The result wasthat Mr Masson is not a legal parent of B.
The presumption against parentage of sperm donors holds even where the donor expects or intends to act as a parent. Donors, as persons concerned with the care, welfare or development of the child may still apply for parenting orders under the Family Law Act, e.g. to live with or spend time with a child and have parental responsibility . In Parsons & Masson, the Full Court acknowledged that Mses Parsons could be restrained from relocating, even though Mr Masson was not a parent, and remitted the case for rehearing to determine this issue.
The Status of Children Act 1974 (Vic) severs the legal parentage of sperm donors, even where the birth mother is not in a de facto or married relationship. Thus Parsons & Masson has ramifications for parentage of children born via ART to single women in Victoria.
The appeal was allowed, the parenting order was set aside and the case remitted for re-hearing by another judge.