New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Sperm donation and parenthood
Susan Parsons and Robert Masson, as they are known in court proceedings, had been friends for more than 15 years when they decided to conceive a child together in late 2006 using artificial insemination. Susan’s partner of a few months, Margaret, was present for the procedure but their relationship was not yet at the stage where it was recognised as de facto. At the time the child, “B”, was conceived, Susan was considered by the law to be “single”, for the purposes of defining the second parent.
The ramifications of this distinction have been huge.
On June 19 this year, the High Court of Australia delivered its decision in the case of Masson v Parsons, ruling that a known sperm donor was the legal father of the child born of artificial insemination. The ruling made international headlines and was the first of its kind in Australia, but it was only the latest twist in a long legal saga.
The case began after Susan and Margaret Parsons married in New Zealand in 2015. The couple decided they wanted to move there with B and their second child, “C”, who was conceived with sperm from an anonymous donor.
Not wanting to be separated from B, Robert Masson sought a ruling from the court to prevent the family from moving. The Parsons responded, requesting orders that Margaret’s name be substituted on B’s birth certificate in place of Masson’s. Essentially, that he no longer be legally considered B’s parent.
An order preventing the Parsons’ move came through in March 2016, and the first full judgement in the four-year saga was delivered in October 2017.
Justice Margaret Cleary of the Family Court applied federal legislation, the Family Law Act 1975, and ruled that Masson’s intentions at the point of conception, as well as his conduct as a father to B in the years since her birth, meant he was her legal father. B could therefore not be moved to New Zealand without his consent. Throughout the legal process, much weight was given to the fact that B called Masson “Dad” or “Daddy”. The family called Masson’s mother “Nana” and also had a positive, “uncle-like” relationship with his partner, Greg. The Parsons appealed Cleary’s ruling.
Tahlia Bleier is the practice manager at Steiner Legal, and the solicitor who ran the matter for Masson from its beginnings through to the High Court proceedings. “I think it’s clear if you read all the judgements that he was ‘Dad’ for so long, until it no longer suited that he was ‘Dad’ and that’s when he became a ‘sperm donor’. That’s my reading of the case,” she says, adding that her opinion aligned with Justice Cleary’s judgement. Bleier said the case was a positive step towards “recognising a child’s reality” when their two parents are not in a romantic relationship.
Susan Parsons contacted The Saturday Paper to make comment, but then received advice not to proceed with the interview. The Parsons’ solicitors were also contacted for comment but followed their clients’ wishes not to take part in an interview.
In her 2017 judgement, Justice Cleary commented that “the greater share of the financial cost of raising the children has fallen on Susan and Margaret”. Bleier acknowledges this, but says her client also “paid child support for a very, very long time” through a private agreement. According to Bleier, the Parsons stopped accepting his payments after they sought legal advice, but Masson has continued to pay money into “an account that will be available to his daughter, eventually”.
Following the High Court’s decision, it is relevant to ask whether child support payments would necessarily correspond to rulings about parentage. While mothers of children born by known sperm donors may be concerned about their donors’ ability to assert parental rights, a donor may also find himself surprised by a mother’s assertion of his corresponding fiscal responsibilities. But Bleier notes there is now serious inconsistency with this area of law.
She says the definition of “parent” in the Child Support (Assessment) Act 1989 “doesn’t capture someone in the class of my client. So, at the moment he is now recognised as a legal parent, but he is not required to pay child support under the Child Support Act.”
“It shouldn’t be that way,” she says, arguing that financial responsibilities should follow any declarations of parentage.
When the Parsons appealed against Justice Cleary’s ruling, the decision returned in June 2018 was in their favour. Judge Thackray of the Family Court said it would be a “constitutional heresy” to treat Masson as B’s father, given the explicit nature of the New South Wales legislation, the Status of Children Act 1996. He noted the uniform legislation passed among all states and territories in the 1980s to deal with babies born by artificial insemination, which were enacted to make sure neither donors nor children had “rights or liabilities” to one another.
By this point, the case had started to garner attention from powerful legal figures. When Masson appealed and the matter reached the High Court, the federal attorney-general, Christian Porter, intervened in support of Masson, who was arguing the Commonwealth law should prevail over the state. The Victorian attorney-general, Jill Hennessy, waded in shortly thereafter, even though it was the NSW legislation that was in question, to argue that the state laws should apply.
This is not unprecedented. Individuals sometimes find their legal matters commandeered by an attorney-general or two, keen to seize an opportunity to have a legal question clarified by the High Court. In most cases, Australia’s constitutional law is clear: federal trumps state. But here, there were complexities.
The NSW state law, upon which the Parsons relied, contains many express provisions for when sperm donors are and are not considered “parents”. The particular section dictates: “If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.” If the Commonwealth law applied instead of the state laws, the Parsons argued, the “ordinary, accepted English meaning” of the word “parent” should exclude sperm donors.
Counsel for Masson argued the federal law stipulated a donor was only presumed not to be the parent when the mother was in a relationship at the time of conception. So, the issue became one of both constitutional law and family law. Did the federal law provide for situations of single mothers using known donors, and therefore trump the state?
The High Court held that it did, ruling in favour of Masson. The judges said the facts of the case before them were unambiguous – Masson had always intended, and acted as though, he was the father of the child. “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.”
Masson will now have to be consulted on all “long-term decisions” about B’s future, not only for living arrangements, but also for medical procedures, religious practices and education.
The issue that concerns many commentators and lawyers is a question of degrees and details. Bleier acknowledges her client’s case was an “extreme” example of demonstrating active parenting. “We now know it’s a question of facts and degrees, but we weren’t given any guidance necessarily to the level or degree of parenting that is required,” she says.
The NSW attorney-general, Mark Speakman, has requested that the Department of Justice prepare a brief on the significance of the High Court’s ruling, but, when asked, the department did not clarify when that brief would be ready.
Some mothers and donors choose to enter into contracts, sometimes known as “pre-conception agreements”, but they are not legally binding, as it’s not possible to contract out of the law. However, that doesn’t mean they aren’t useful. The presence of Masson’s name on B’s birth certificate was given considerable weight when determining both his and Susan’s intentions at the time B was conceived. A written agreement would have made those intentions completely clear.
For those who have used an anonymous donor, the High Court’s decision in this case will have no ramifications, unless the donor has gone on to be identified and have a relationship with the child. The court’s majority expressly stated that it was “unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word ‘parent’ ”.
The decision also has no real implications for couples who use a known sperm donor to get pregnant. If a woman carrying a child has either a de facto partner or is married, the consenting partner is automatically presumed to be the second parent of that child.
But single women, compared with married or de facto women, are more frequent users of sperm donors, and this aspect of the decision has raised concerns.
Using anonymous donor sperm requires IVF procedures, creating a significant financial barrier for many single women looking to become mothers. The High Court’s decision makes clear the law now applies different rules to single women compared with women who are coupled. It suggests an ongoing conservative presumption of a two-parent family. This may have recently stretched to accommodate same-sex parent families, but it does not yet fully presume the validity of single-parent families.
In Canada, it is possible for up to four people to be named on a child’s birth certificate. “[That’s] hopefully where we’re headed,” says Bleier, adding that she thinks “this decision goes a long way” towards achieving that kind of reform.
This article was first published in the print edition of The Saturday Paper on Jun 29, 2019 as "Parental guidance".
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