State and federal laws have come into conflict in the courts, in proceedings dealing with the question of the legal parentage of a sperm donor.
The case of Masson & Parsons and Anor involved a gay man, two lesbians and two children, with the court tasked with determining who was the legal parent of one of the children, in circumstances where the term “parent” is not in fact defined in the Family Law Act 1975 (the Act). We wrote about this case here.
With the biological relationships in the case not in dispute, the trial judge had said that the relevant section of the Act dealing with the legal parentage of a sperm donor was section 60H, which relates to children born through artificial insemination procedures.
The chief issue 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 judgment was overturned by the full Family Court last month, leading to the father now taking his case to the High Court, with legal experts saying the outcome of the test case could potentially impact thousands of Australians and that the applicable laws therefore need modernisation.
It in the original trial, the Judge had found that the man had genuinely fathered the child with the intention of being involved as a parent, as opposed to being an uninvolved sperm donor. The court’s conclusion was that “the intention and belief of a party to an artificial insemination process is a factor to be taken into account” when deciding the legal parentage of a sperm donor:
“If the evidence supports a finding, as I have found that it does, that [the father] took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care, then absent other legally disqualifying factors, he is a parent in the ordinary meaning of the word.
Contrary to the views of the trial judge, on appeal, the full Family Court 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.
The High Court will now be required to decide on the issue of parentage, after the full Family Court found that there had been “a serious divergence of judicial opinion” on the issue. The family court went as far as to call it a “constitutional heresy” if the sperm donor was recognised as a legal parent, because under NSW law, a sperm donor is not presumed to be a father unless he is married or in a de facto relationship with the child’s mother when the child was conceived. The full Family Court found that “the state law applies, because the federal law does not provide otherwise, and the presumption was irrebuttable”.
Commonwealth laws were passed back in the 1980s to handle the status of kids born through artificial insemination procedures, which the full Family Court said made clear sperm donors had “no rights or liabilities arising from the use of their semen and that any child born as a result of artificial insemination would have no rights or liabilities in respect of the sperm donor”. The original finding that the man was the child’s legal father was found to be “out of step with the laws of all states on this issue”.
The outcome of the High Court challenge remains to be seen. Meanwhile, unless and until “parent” is conclusively defined in legislation, it’s likely that confusion will remain surrounding the issue.
Source: The Australian
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