Who is a “Parent”? It’s not all relative

04 DEC 2019

 

As children continue to be conceived by non-traditional methods, Courts have been required to reconsider the meaning of a ‘parent’ and who is deemed to legally be one, specifically in relation to those who donate genetic material.

An appeal in the ground breaking case of Masson v Parsons was allowed by the High Court in June 2019 and has changed the way Courts view the meaning of a ‘parent’. The case was about a child who was conceived by an ‘at-home’ means of artificial insemination. The child was conceived in 2007 and Mr Masson and Ms Parsons were friends at the time, but Ms Parsons was in a relationship with another woman. Mr Masson was listed on the birth certificate and donated his semen to Ms Parons under the assumption that he would be the child’s parent. The major question was whether Mr Masson, the sperm donor, was a parent in the eyes of the law.

Whether or not a sperm donor is regarded as a parent under the law affects whether they have responsibilities and duties to their child under the Family Law Act. However, whether or not you are a legal parent does not stop someone from applying to the Court for parenting orders.

The Status of Children Act prioritizes the relationship of individuals over biological parentage, meaning it assumes that the donor is not the parent. However, this Act was found to not apply in this case. Instead, the Family Law Act was found to be the more crucial piece of legislation here as it provided a thorough statement of law relevant to the case at hand.

Interestingly, the Family Law Act provides a similar assumption to the Status of Children Act if the parents are in a relationship. A problem arose here as even though Ms Parsons was in a relationship at the time of conception, she was not in a legally recognized de facto relationship, which raises the question of could Mr Masson be the child’s father, given that Ms Parsons is ‘single’ in the eyes of the law.

The High Court found that the term ‘parent’ should be interpreted in accordance with its ordinary meaning, giving consideration to the facts of the case. The Court could not find a reason to doubt that Mr Masson was the child’s parent, given that he cared for the child since birth, as a parent would. So, Mr Masson was therefore found to the be the child’s parent under the law.

It is important to remember that any sperm donor will not automatically be deemed the parent of the subsequently resulting child.  The circumstances of the case and the actions of the donor play a key role in determining whether they are a parent, as they did here.

If you require more information on the above article contact Nevine Youssef on (02) 4626 5077 or nyoussef@marsdens.net.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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