There are many ways to have a baby: traditional conception, IVF, surrogacy, adoption, sperm or egg donation in the clinical sense and sperm donation in the informal sense. With so many options, the law starts to become very complicated when considering who the baby's parents are considered to be.
A recent case in the news about sperm donation is likely to have some parents out there suddenly very concerned about their rights, and the rights of their donor.
This case, Masson and Parsons & Ors (2019), uses a pseudonym to protect privacy. In this matter, a woman asked her good friend to donate sperm so that she could bear a child. He did so, by means of artificial insemination upon an informal agreement. The woman fell pregnant on the second attempt, and in 2007, the child was born. Later, in 2015, the mother and her de facto partner wished to relocate to New Zealand. The sperm donor sought to stop this occurring as it would significantly impact upon the child's relationship with him and therefore, would not be in the child's best interests.
The sperm donor and the mother were not in a romantic relationship and did not intend to conceive and raise the child together as a romantically-involved couple. However, they did both intend that the sperm donor would play a role in the child's life, and given the large role he then played, he became "Dad" rather than merely a "sperm donor."
It is not uncommon for informal sperm donors, or even clinical sperm and egg donors, to have a role in a child's life. Even with many adoptions, biological parents continue to play a role in the child's life in an 'open adoption' arrangement. So, how much interaction tips the balance from 'donor' to 'parent'?
In Masson and Parsons & Ors the father was on the child's birth certificate as the "father." When he helped to conceive the child, he believed he was fathering a child for whom he would care and provide financial support for as a "father." In this respect, he and the mother had extensive conversations about how co-parenting would work. He attended ultrasounds, the baby shower and the birth. From birth, the child spent regular time with him and later, regular overnight time. She refers to him as "Daddy" and always has. The father has provided financial support throughout the child's life and has been involved in decisions regarding her health, education and matters of general welfare. He took her on holidays, and they spent special occasions together including Christmas and birthdays. The Court found that he and the child had an extremely close and secure attachment. The father even played "Dad" to the child's younger sister, with whom the father had no biological connection.
The trial judge found that the father was a legal parent of the child and made orders allowing for him to spend extensive time with the child and restraining the mother and her wife from relocating with the child to New Zealand. The appellate court of the Family Court disagreed and on 19 June the High Court reversed that decision and agreed that the father was a "parent" for the purposes of the Family Law Act.
The law of parentage is complicated and this decision required an in-depth analysis of both State and Federal legislation and the relationship between them.
What this case came down to, among other things, was the ordinary meaning of the term "parent."
It was noted that the Family Law Act, when it uses the word 'parent', refers to a parent within the ordinary meaning of that word (except where expressly excluded). In that sense, the father provided his genetic material for the express purpose of fathering a child he expected to parent and has since followed through with this intention by undertaking a parenting role, to a significant degree. The role the father played was clearly that of a parent, and akin to the role of a separated parent in any traditional parenting arrangement.
Similar cases may have a different result because the ordinary use of the term "parent" involves a question of degree. If the father only saw the child occasionally, would he still be a parent? If he didn't pay child support, would he be a parent? The result of a similar case would depend upon the specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.