Australia’s High Court is set to rule on the case of a New South Wales man who donated sperm to a lesbian couple to conceive a child and is now fighting for legal parental recognition to stop the couple and the child moving overseas.
The father, given the pseudonym Robert Masson by the court, had been friends with the mother for 25 years when he donated his sperm to her in 2006 to conceive via artificial insemination, with both agreeing he would have parenting role.
Masson was listed on the girl’s birth certificate and helped raise her and her younger sister – who was born to an anonymous sperm donor – from birth. The man is known to both children as “daddy”.
But the girl’s mother and her wife – known under the pseudonyms Susan and Margaret Parsons – decided to move to New Zealand, leading to Masson’s legal efforts to stop them.
In a 2017 ruling, Family Court Justice Margaret Cleary found that under Commonwealth law Masson was the legal parent of the child, taking into account his intentions at conception, his role in her life and his genetic contribution, the the Sydney Morning Herald reported.
“Being a biological parent is not the whole answer to the question ‘Who is a parent?'” Justice Cleary said.
“However, where there is a challenge to a biological parent being a legal parent, as there is here, biology is a part of the answer.”
But the decision to recognise Masson as the child’s parent was overturned on appeal last year by the full Family Court, whom instead relied on state legislation.
The full Family Court ruled that Masson was not the girl’s legal parent, in part due to an “irrebuttable presumption” under New South Wales law that a sperm donor is not a parent unless they are married or in a de facto relationship with the mother at the time of conception.
Masson has now taken the case to the High Court of Australia, with a hearing taking place today (April 16).
The women will argue in the High Court that the state law applies and Masson is not a legal “parent” of the children.
But the dispute also prompted federal Attorney-General Christian Porter to intervene on behalf of the Commonwealth, arguing Masson was legally the child’s father under the Family Law Act and the state legislation should not apply.
La Trobe University law lecturer Hannah Robert told the Herald the apparent conflict between the laws gave families uncertainty and legislation should provide for preconception agreements or the ability to list more than two parents on a birth certificate.
“In a lot of families, particularly gay and lesbian families, the donor is known but they’re not a parent,” Dr Robert said.
“It’s the sort of halfway space between donor and parent and I don’t think the law has kept up with that.”
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