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Controversy over High Court ruling on legal parentage

By July 4, 2019February 23rd, 2024No Comments

The recent High Court ruling regarded as a landmark case in family law has caused a variety of concerns over its implications, which range from conservative worries that it paves the way for children being allowed to have three or more legal parents, to practical concerns over how this may affect women who use known donor sperm in artificial conception procedures, as well as donors themselves.

The Catholic Weekly has expressed its fears that the ruling has now created an “expansive definition of who could be a parent” which allows for multiple legal parents, in a similar way as countries such as Canada now allow up to four legal parents to be registered on a birth certificate. The newspaper describes how the High Court judges “went on to cite with approval an English case where it was said there are ‘at least three ways in which a person may be or may become a natural parent of a child’, that is, genetically, gestationally and psychologically.”

According to The Conversation however, although the High Court did conclude that the federal Family Law Act’s definition of a parent was not exhaustive, it was “silent on whether a child could have more than two legal parents”, but it “did suggest that the federal Act might support this assumption”.

The decision, which has been widely misinterpreted as ruling that all sperm donors are now automatically legal fathers, clarified a dispute involving a clash of federal and state legislation relating to parentage. The federal Family Law Act had come into conflict with the state-based Status of Children Act in a case pseudonymised as Masson & Parsons and Anor. The matter involved a gay man, two lesbians and two children, with the original trial judge tasked with determining who was the legal parent of a child in circumstances where the term “parent” is not defined in the Family Law Act.  The chief issue at trial was whether the biological father was a legal parent of the child or simply a sperm donor, and the case had boiled down to what the biological parents’ intentions were at the time the child was conceived. But the original judgment was overturned by the full Family Court, which said that there was nothing in the Act to support the idea that a man’s expectation that he would parent a child was relevant.

This led to the father taking his case to the High Court which recently delivered its judgment in the case. With the state and federal laws inconsistent, the High Court applied the federal law and conferred parentage rights to the sperm donor.

The first practical impact of this decision is that going forward, the federal Family Law Act will apply in cases that seek to determine parentage rights.

But the ruling may also have other practical implications, as outlined a second article in The Conversation, which explains that:

“The High Court has arguably taken a common sense approach by recognising that any person – including a sperm donor – who is found to be taking on a parental role should share in the responsibilities of raising a child, under certain circumstances.

“This decision does not open the door to custody battles from anonymous sperm donors who have never seen or had a relationship with their biological child. However, the ruling does point out that sperm donors who develop a relationship with their biological children may find themselves taking on the role of a ‘legal parent’, whether they intend to or not.”

Some of the potential problems caused by the ruling which may impact on couples and singles using artificial conception procedures using a known sperm donor, as well as on the donors themselves, include:

  • It may affect the decision of men to become sperm donors in the first place if they feel they may be left open to legal and financial claims in future, particularly if they have been willing to have a level of connection with a potential child.
  • It creates concerns for women who conceive with sperm of an unknown donor but who pursue ‘early contact’ for the sake of the children knowing their heritage. Does some level of involvement now make the donor a legal parent? Families and donors now need to be aware of legal risks of early contact.

“If the child calls him ‘Dad’, might he suddenly be a legal parent and entitled to a say in major parenting decisions? When should a donor’s involvement be assessed? Could he gradually become a parent over time?”

  • It may lead to sperm donors refusing contact with a child in case this lands them with parental responsibilities they did not wish to have. This ruling appears to change the interpretation of federal laws created in the 1980s to handle the status of children born through artificial insemination, which made clear that sperm donors would have “no rights or liabilities arising from the use of their semen and any child born as a result of artificial insemination would have no rights or liabilities in respect of the sperm donor”.
  • It does not define “a threshold at which a person transitions from “sperm donor” to “legal parent”. It creates uncertainty for women who have conceived with known donors, and their children, because it doesn’t indicate the level of involvement in the child’s life which transforms a donor into a parent, or whether involvement is at all necessary.
  • It appears to “create inequity in the legal framework” for single women as it only applies the new expansive notion of ‘parent’ to birth mothers who don’t have a spouse (whether married or de facto) at conception—“couples are protected from donors’ assertions of legal parentage while single women are not”.

There are now calls to modernise the Family Law Act to provide absolute clarity for donors, women and children on the issues that have been raised by this case.

You may like to read our earlier blogs about this case, here and here.

Do you need assistance with a family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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