Today, the High Court of Australia clarified the definition of “parent”, in what has been a very lengthy and complex legal matter relating to the status of a sperm donor in the family relationship. Particularly, this case highlights the importance of outlining the intentions of parties involved in the artificial conception procedure and what is to occur once the child is born. This case emphasizes the need for this to occur before the procedure is undertaken.

The Facts of the Case

The facts are lengthy and complex, but for the purposes of this article, they can be summarised as follows:

  • The matter involved two children (Child B and Child C), where a determination was sought in relation to who was their identifiable legal parent (as opposed to biological parent);
  • Child B was conceived in 2006, after it was privately agreed that the biological father would introduce semen into the biological mother by artificial means. The agreement was informal and not documented. At the time, Robert (the biological father) was of the view that he would play a “father role” in the resultant child’s life, through both financial support and care. His name, along with the biological mother’s name, Susan, were placed on the birth certificate of Child B.
  • Susan subsequently entered into a defacto relationship with Margaret, and through the use of sperm from an unidentified donor, Susan gave birth to Child C. In that instance, the birth certificate of Child C contained Susan and Margaret’s names.
  • While Robert was not biologically connected to Child C, he played a substantial role in the care of both Child B and Child C, and for some time, Child C was of the understanding that Robert was her father.
  • Susan and Margaret decided that they wanted to relocate to New Zealand with the two children. Robert was opposed to this, and was forced to file an Application with the Family Court of Australia to prevent the relocation.
  • Susan and Margaret argued that, in accordance with the Status of Children Act 1996 (NSW), Robert was not the legal parent, as Child B’s birth was the result of a fertilization procedure, where Robert was the sperm donor. Robert contended that this Act was inapplicable as it was State legislation, and that rather, the Commonwealth’s Family Law Act 1975 considered him still the “parent”, if the term was given an expanded meaning.

The Relevant Law

  • In accordance with Section 60H of the Family Law Act 1975 (Cth), there are a myriad of circumstances where a person is deemed the “intended parent”, notwithstanding a lack of biological connection to that child (ie. there is a martial or defacto relationship to the biological mother). The law, however, fails to outline circumstances where a single woman has undergone an artificial conception (if you recall, Susan had not yet met Margaret when conceiving Child B).
  • The New South Wales legislation relating to this matter, however, stands contrast to the above Commonwealth law, where it states that if a woman (whether married or unmarried) becomes pregnant by way of fertilization procedure from a man who is not her husband, then the donor of that sperm is deemed NOT to be the father of a child born as a result.

The Decisions of the Courts

  • At first instance in the Family Court of Australia, a Court held that Robert would be held to be the “parent” in the ordinary meaning of the word if there was sufficient evidence that, when he took part in the fertilization procedure, he was of the belief that “he was fathering a child.” The Judge agreed with Robert in that the meaning of the word “parent” under Commonwealth legislation should be taken as “expansive” and not “restrictive” and that there was nothing in that legislation that prevented him from being considered the “legal parent” as well as the “biological parent” because of that. As such, his legal parentage then allowed him the ability to restrict the movements of the child internationally.
  • Susan and Margaret appealed, and the Full Court of the Family Court of Australia determined that the Family Law Act’s meaning of “parent” was not applicable in these circumstances. The Court was of the view that because there was a “gap” in the legislation, it was obliged to use the State law to guide them. In this instance, the State law did not define Robert as the “legal parent”, despite being the “biological parent”. The Full Court ruled out the fact that Robert had the expectation of fathering the child, deeming it irrelevant.
  • On appeal to the High Court of Australia, it was argued by Robert that the Family Law Act’s expansive definition of “parent” should apply, and that there was no gap. In the event that there was an inconsistency between the State and Federal law, then the Federal Law prevails.

The Final Decision

  • The High Court of Australia agreed with Robert in that his role as “parent” under Commonwealth family law was to be considered as “expansive” and that through the use of the word in its natural and ordinary meaning, Robert was the “parent”. Furthermore, the High Court rejected Susan and Margaret’s argument that by being the “sperm donor”, Robert was excluded from that ordinary meaning of “parent”.
  • Importantly, the Court said that the meaning of the word “parent” was a question of fact, and at each instance, the Court is obliged to look at the relevant facts and circumstances of the case. They held that, in this instance, Robert was not “merely a donor”. He did not involve himself in the procedure with the understanding that he was to have nothing to do with the child born. He had provided support and care since her birth, and he was on the birth certificate as the father.

Key Points to Note:

There can be a lot to extract from this remarkable case, however the key points are:

  1. Where you are considering using a sperm donor in an artificial conception procedure, discussions need to happen before the procedure. The discussions should be centered around the intentions of the donor after the child is born and ensure that from the outset, those intentions are clear and not in dispute;
  2. Where you do not intend for the sperm donor to play a role in the child’s life, you may wish to consider involving an anonymous donor as opposed to involving a known sperm donor. In doing so, you may be able to avoid confusion as to the role of that donor in the upbringing and care of the child, as the donor will not be identifiable.
  3. In an instance where you wish to be a sperm donor, you should consider the same issues as above, and make the intentions of your involvement clear once the child is born. If those intentions are in dispute, then we strongly discourage you involving yourself in that procedure, or suggest you “iron out” the issues before proceeding.

This case has highlighted the critical importance of obtaining legal advice when it comes to using fertilization procedures. Obtaining legal advice before proceeding with the fertilization can mean that disputes may be identified before the child is born, and before issues arise such as in the case of Robert and Susan.

If you wish to discuss the above case or the law relating to various fertilization procedures available (including the involvement of a surrogacy), please do not hesitate to contact me.