High Court rules a sperm donor is a parent

High Court rules a sperm donor is a parent within the meaning of the Family Law Act

In June 2019, the High Court ruled that a particular sperm donor is a parent within the meaning of the law.

The case of Masson v Parsons & Ors involves a man, who in 2006, donated sperm to a female friend to enable her to conceive a child by way of artificial insemination. At that time the man believed he was fathering the child and would thus support and care for the little girl. By agreement, his name was entered onto the girl's birth certificate as the father. The child lived with the mother but at all times during her young life, the father maintained a close and loving relationship with her.

The father enjoyed an ongoing role in the daughter's life, provided financial support and assisted with her health, education and general welfare.

Subsequently, the mother formed a relationship and lived with her partner and the child. The mother and her partner resolved to move overseas with the child and the father lodged an application in the Family Law Courts to prevent the mother, and her partner, taking the child overseas permanently.

Is a sperm donor a father?

One of the questions for the Family Court was whether the sperm donor is a parent.

The primary Judge found the sperm donor was a parent under Section 60H of the Family Law Act.

On appeal to the Full Court of the Family Court, the Justices of the Full Court ruled that the sperm donor was not a parent. Whilst at first blush the sperm donor was a parent under Section 60H of the Family Law Act, the Full Court Justices reasoned that the case was a federal matter and under Section 79(1) Judiciary Act 1903 (Cth), section 14 of the Status of Child Act 1996 (NSW) applied and thus the sperm donor was irrefutably presumed not to be the child's parent. Section 14 of the Status of Child Act 1996 (NSW) states that a sperm donor is presumed not to be a parent.

The father appealed to the High Court and the Full Court's decision was overturned.

The High Court found that Section 79(1) of the Judiciary Act 1903 (Cth) did not pick up section 14 of the Status of Children Act and found the father is a parent within the meaning of the Family Law Act.

Sperm donors should be cautious, as with rights, come responsibilities.

"Rights and responsibilities conferred on sperm donor parent"

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Jane Ekin-Smyth

Jane Ekin-Smyth

Consultant
Stephen White

Stephen White

Partner