High Court decides on sperm donor/father parentage case

The High Court has delivered a judgment that may clarify, to some extent, the legal relationship between men who have donated sperm when there is an intention he will play a role in the child’s life, and a child born as a result of an artificial conception procedure involving his sperm.

Advancements in assisted reproductive technology have led to a greater diversity of family structures. They can leave people uncertain whether they fit within the legal definition of ‘parent’ and whether they have the responsibilities and rights often associated with being a parent, including decision making and Child Support responsibilities.

In order to determine what a person’s rights and responsibilities are, it is necessary to determine whether the adult is a parent, or something different at law, like a person concerned with the care, welfare or development of the child, or whether there is no legal relationship. Sometimes an adult has a genetic link to a child but is not a parent, and sometimes a person with no genetic link to a child is the child’s parent.

The High Court delivered judgment in Masson v Parsons & Ors yesterday, regarding the legal parentage of a child born as a result of an artificial conception procedure. In this case, a man donated sperm to a lesbian friend who would be the birth mother, who was in a relationship at the time but not a de facto relationship. He believed, at the time of conception in 2006, he would have an ongoing relationship with the child once born. He was registered on the child’s birth certificate as her father, and the ‘non birth mother’ was registered as the other parent. The birth mother later married the non birth mother. The man had an ongoing role in the child’s financial support, health, education and general welfare, introducing her to extended family and playing a role normally, socially, undertaken by a parent, even volunteering at her school canteen. The child referred to him as, “Daddy”, as did her sister (who was not biologically related to the man). The intention of the parties  was the man would play a significant role in the child’s life is  an important factor. The decision depended on the court deciding whether the man was a parent of the child according to the ordinary, accepted English meaning of ‘parent’.

The proceedings were initiated because the birth mother and her wife sought to relocate  the child from Australia to New Zealand, a move which was not agreed to by the man.

There are some provisions of the Family Law Act which refer only to parents. One of the objects of the Act refers to a child having the benefit of both parents in their life. One of the primary considerations in how a court determines a child’s best interests refers to the benefit to the child of having a meaningful relationship with both parents. Many of the other provisions refer to parents as well. Most importantly, when making a parenting order, the court must apply a presumption it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Meaning  the parents share all the duties, powers, responsibilities and authorities which, by law, parents have with children. Decisions about major long-term issues (including whether a child’s residence is relocated overseas) need to be made jointly, and each parent would be required to consult the other on the decision, and to make a genuine effort to come to a joint decision.

Whether a sperm donor will be obliged to pay child support depends on whether they are a parent of the child. The principal object of the Child Support (Assessment) Act is “to ensure children receive a proper level of financial support from their parents”. Where the Family Law Courts make a declaration or order that a person is a parent, it is likely that other issues will arise, such as child support and rights of inheritance.

The High Court determined the man who donated his sperm in this case is a parent, and reinstated an earlier order restraining the relocation of the child’s residence to New Zealand. The decision is likely to impact many families where there has been a known sperm donor.

Every family law case is unique and decisions turn on particular facts. For more information or advice on your family law matter, please contact our Private Clients team.

This article was written by Brendan Herbert – Principal Lawyer, Private Clients | Family Law.