The TCF Team
When can a sperm donor be considered the legal parent of a child?
The High Court found that a man who donated sperm to his friend with the belief that he would be involved in the child’s life was the child’s legal parent. As a consequence of this finding, the mother was unable to relocate to New Zealand with the child without the sperm donor’s consent.
In 2006, the biological father agreed to provide his semen to enable his friend to conceive a child by way of artificial insemination. At the time of conception, the biological father believed that he would support and care for the child as its parent. His name was entered as the father on the child’s birth certificate.
The child lived with her biological mother and her mother’s partner but spent regular time with the biological father and called him “Daddy”. The biological father played an ongoing role in the child’s financial support, health, education and general welfare.
Controversy arose in 2015 when the mother wanted to relocate to New Zealand with her partner and the child. The biological father sought to restrain the relocation of the child and be recognised as a legal parent of the child.
The trial judge in the Family Court of Australia held that the biological father was a “parent” for the purposes of the Family Law Act 1975 (Cth) (Family Law Act) and restrained the mother and her partner from moving overseas. In doing so, the trial judge considered section 60H of the Family Law Act which provides rules in respect of the parentage of children born by artificial conception.
Her Honour stated that while the biological father was not a parent according to the ambit of section 60H, the section is not exhaustive. In circumstances where section 60H is not engaged, her Honour said a person may still qualify as a parent for the purposes of the Family Law Act if the person is a parent within the ordinary meaning of the word and found that the father was a parent. The mother appealed.
On appeal, the main issue concerned whether the biological father was a “parent” of the child within the meaning of the Family Law Act. The mother submitted that the primary judge failed to recognise the relevance of section 79 of the Judiciary Act 1903 (Cth) which required her Honour to apply the State laws prescribed in the Status of Children Act 1996 (NSW) under which the biological father was presumed not to be the child’s parent. This presumption is irrebuttable. In accordance with the relevant State law, the Full Court unanimously upheld the mother’s appeal and found that the father was not a parent. The biological father appealed to the High Court.
On the 19 June 2019, the full court’s decision was overturned by the High Court. The majority found that state laws are not to be followed when they contradict the laws enacted by Federal statutes, such as the Family Law Act.
Subsequently, if a person does qualify as a child’s parent under a section of the Family Law Act, or according to ordinary construction of the word “parent”, it is irrelevant that a State provision provides otherwise.
Returning to the original judgment, the majority agreed that while the biological father fell short of the definition of parent under section 60H, the question of whether a person is a parent of a child born by artificial conception is also one of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of each case. In considering the role of the biological father in this case the majority stated:
“To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, it was conclusively found that the donor provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent, that he would be registered on her birth certificate as her parent, and that he would support and care for her as he has done.”
Accordingly, the majority held that characterising the father as merely the “sperm donor” effectively ignores all but one of the essential facts of the case. Therefore, there was no reason to doubt the trial judge’s conclusion that the biological father was indeed a parent of the child.
The case provides clarity regarding the status of sperm donors in circumstances where the donor plays an active fathering role in the child’s life. Notably, the majority did not decide whether a man who does no more than provide his semen to facilitate the birth of a child falls within the ordinary accepted meaning of the word “parent”.