Who is a father?

In the High Court case of Masson v Parsons in 2019 the court considered the meaning of the term “parent” and whether the sperm donor could be termed “parent” within the ordinary meaning.  Does the ordinary meaning exclude a “sperm donor”?

The court considered the legislation and the majority decision of the judges endorsed the primary judge’s determination that the male in this case is the father and parent of his biological daughter.

In this case the facts were that the parties to the litigation had been close friends for many years.  The male provided his semen so that the female could fall pregnant by artificial insemination.  At the time of conception the male believed he was fathering the child and that as the child’s father he would support and care for her.  His name was entered on the child’s birth certificate as her father. The male took the relationship seriously although the child did not live with him.  He had and continues to have an ongoing role in the child’s financial support, health, education and general welfare and enjoys an extremely close and secure attachment relationship with her.

The various courts in the proceedings, the primary judge and then the Full Court of the Family Court, correctly looked at the relevant legislation and determined that s60H of the Family Law Act which provides rules in respect of parentage of children born of artificial conception procedures is not exhaustive as to who may qualify as a parent of a child.

What does this mean?

Simply, it does not mean that the only persons who by law have parental responsibilities are persons according to ordinary acceptance.  And furthermore it does not mean that the only persons who may seek parenting orders are parents according to ordinary acceptance or are otherwise defined as parents.  The intention of the legislation is to expand and not restrict the categories of people who may qualify as a parent of a child born of an artificial conception procedure.

The court indicated that the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary contemporary Australian understanding of “parent” is a question of fact and degree.  The male here was far more than a sperm donor and he had been recognised as a parent.

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