Are Sperm Donors Parents?

Posted: 28th October 2019

Posted in: News

Posted by: Fiona Browne, Associate

Today, the pathway to becoming a parent can be achieved beyond the traditional conception. Adoption, IVF and surrogacy are increasingly common. Donating sperm is another way to have a child but the question is are sperm donors parents? The law is evolving to consider these different pathways to becoming a parent.

A recent High Court decision examined the case of a man who donated semen to a long term female friend. The High Court was called upon to consider whether the male was a sperm donor or parent to the child?

It is not often that family law matters come before the High Court, so the decision was highly anticipated by family lawyers. The decision was handed down in June of 2019. The High Court overturned the decision of the Full Court of the Family Court and determined that Mr Masson was the father of the child.

The High Court determined that a ‘parent’ for the purposes of the Family Law Act is to be determined pursuant to “the ordinary, contemporary understanding of a ‘parent’ and the relevant circumstances of the case at hand”.

Masson and Parsons & Ors: The Facts of the Case

The facts were that a woman asked her male friend of many years to donate semen so she could conceive a child. The agreement was informal. The female artificially inseminated herself. A child was conceived and born in 2007.

The sperm donor’s name (Mr Masson) was written on the birth certificate as the “father.” The father’s evidence was:

When he agreed to help conceive the child, he believed that he would also care for and provide financial support for the child.
The mother and father had extensive conversations about the co-parenting arrangement.
The father was present for the ultrasound, baby shower and birth.
The child regularly spent time with him and had overnight stays.
The father took the child on holidays and spent special occasions with him.
Mr Masson was involved in decisions about the child’s general welfare.
The child also referred to him as ‘Daddy ‘.

Fast forward to 2017, when the mother and her de-facto partner intended to relocate to New Zealand. Mr Masson sought to prevent the relocation as it would significantly impact his relationship with the child.

Masson and Parsons & Ors: The Ruling

When the matter first went before the Court, the primary judge considered whether the father was, in fact, the legal parent of the child. The primary judge found that at the time the child was conceived, the mother was not in a de facto relationship. Accordingly, the mother’s de facto partner did not qualify as an intended parent as can be the case for children born by way of artificial conception where a woman is married to or has a de facto partner.

Mr Masson was found to be a parent of the child “within the ordinary meaning of the word”.

The mother appealed and the Full Court of the Family Court considered that as the parties resided in New South Wales, the Judiciary Act (NSW state-based legislation) applied and the word ‘parent’ should exclude ‘sperm donor’.

Mr Masson appealed to the High Court.

The High Court agreed that the father was a “parent” within the ordinary meaning of the term and for the purposes of the Family Law Act. The High Court specifically pointed to the facts and that Mr Masson did not just provide his semen. He did so with the understanding that he would be the child’s father. The facts supported that he had been playing an active role in the child’s life since birth.