Understanding parental responsibility, sperm donors and assisted conception

The term ‘parent’ has expanded beyond merely describing a person who is the biological mother and father to a child, which has created legal difficulties in determining who is a child’s legal parent and, in turn, who has parental responsibility and their rights in relation to non-biological children. The Family Law Act 1975 (Cth) does not comprehensively define ‘parent’. As the High Court confirmed in Masson v Parsons, where the Act does not otherwise provide, the word is to be understood according to its ordinary, contemporary meaning. Whether a particular person is a parent in that sense is a question of fact and degree, determined by the circumstances of the case – not simply by applying a dictionary definition.

Genetic connection does not always determine legal parentage

Being a legal parent is about more than sharing genetic material with a child. This is recognised by common law via the interpretation of the Family Law Act 1975 (Cth) in cases involving children conceived through Assisted Reproductive Technology (ART) or IVF procedures. A sperm donor supplies genetic material for a child’s conception and, in that narrow sense, is the child’s biological father. However, whether a donor is a legal parent depends on the applicable statutory framework and the circumstances of the particular conception. A person who has done no more than donate genetic material, with no further involvement in the child’s life, will not necessarily be regarded as a parent. Equally, as Masson v Parsons demonstrates, a donor who does take on an ongoing parenting role may be found to be a legal parent — genetic connection is relevant, but it is not necessarily determinative.

Can a genetic donor be a parent?

The High Court in Masson v Parsons & Ors [2019] HCA 21 significantly clarified when a sperm donor can be found to be a child’s legal parent.

The facts: In 2006, Mr Masson provided semen to his close friend, Ms Parsons, so she could conceive a child through artificial insemination. He did so on the understanding that he would be involved as the child’s parent — supporting and caring for her and being registered on her birth certificate as her father. The child was born and lived with Ms Parsons and her partner, but Mr Masson remained actively involved in her life, and she called him “Daddy”. Ms Parsons commenced the relationship with her partner after the child’s conception. When she later sought to relocate with the child, Mr Masson opposed the move and sought parenting orders, including joint parental responsibility.

The legal issue: The legal issue was more complex than simply determining whether Mr Masson had acted as a parent. Because the Federal Circuit and Family Court of Australia operates under federal law, the real question was: does NSW law control here? The Status of Children Act 1996 (NSW) says a sperm donor who isn’t the mother’s husband is never legally the father — no exceptions. The Full Court of the Family Court had said yes, NSW law applied — so Mr Masson couldn’t be a legal parent, no matter how involved he was in his daughter’s life.

The High Court’s decision: The High Court held that the relevant Commonwealth law applied in the federal jurisdiction and that the NSW provision could not operate to determine Mr Masson’s status for the purposes of the Family Law Act. The remaining question was whether Mr Masson was a “parent” within the ordinary, contemporary meaning of that word, having regard to all the circumstances. Looking at the facts, the Court said yes. He gave his semen specifically to father a child he intended to help raise, he is on her birth certificate, and he has consistently supported and cared for her. Labelling him a mere “sperm donor” ignored almost everything about his actual role.

The High Court allowed Mr Masson’s appeal and reinstated the parenting orders originally made by the primary judge, which included orders about parental responsibility and restrained the proposed relocation. The case was decided under the law as it stood before the 2024 amendments discussed below. Importantly, those outcomes flowed from the parenting orders made in that case: recognition as a legal parent is the threshold question, but it does not by itself determine how parental responsibility will be allocated.

Can a de facto partner be a parent?

Masson v Parsons is sometimes interpreted as also deciding that a mother’s same-sex partner cannot be a legal parent. That assumption is not quite correct, and there is an important distinction to understand.

Section 60H of the Family Law Act 1975 (Cth) deals with children born as a result of artificial conception procedures. It provides that where, at the time of the procedure, the birth mother was married to, or in a de facto relationship with, another person (the “other intended parent”), and the statutory consent requirements are satisfied, the child is the child of the woman and of the other intended parent for the purposes of the Act – whether or not the child is biologically theirs. This is more than a presumption: where its requirements are met, s 60H operates to determine the child’s parentage for the purposes of the Act.

In this case, Ms Parsons’s partner had not been in a relationship with her at the time of the conception procedure, so s 60H did not operate to make her a parent of the child — she was not a party to the case, and the High Court did not make a finding about her parental status. Her position illustrates how s 60H operates, rather than reflecting a substantive ruling against her.

A person who is married to, or in a de facto relationship with, the birth mother at the time of the artificial conception procedure, and who satisfies the relevant consent requirements, may be recognised as a parent under s 60H, regardless of the person’s gender.

Legal parentage and parental responsibility

Being a legal parent and having parental responsibility are related, but they are not the same legal concept. The Family Law Act 1975 (Cth) defines parental responsibility as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Under s 61C, each parent of a child under 18 has parental responsibility for the child, subject to any court orders.

Following the amendments that commenced on 6 May 2024, there is no longer any presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility. The former presumption in s 61DA has been repealed, and s 61C now expressly provides that it does not establish a presumption to be applied by the court when making a parenting order.

Instead, the court may make orders for joint decision-making about major long-term issues – such as the child’s education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent – or may allocate responsibility for some or all of those decisions to one parent alone. Where joint decision-making is ordered, the parents must consult each other and make a genuine effort to reach a joint decision. In every case, the child’s best interests remain the paramount consideration.

In practical terms, being recognised as a child’s legal parent is an important threshold question, but it does not automatically mean that a parent will share equally in every major decision about the child. How parental responsibility is exercised or allocated will depend on the circumstances of each family and on any parenting orders made by the court.

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Our experienced team at Etheringtons Solicitors in North Sydney can assist with navigating proceedings for parenting orders and questions about how parental responsibility is allocated.

If you need further advice or assistance with family law matters, please contact us on (02) 9963 9800 or via our contact form.