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 has parental responsibility and their rights in relation to non-biological children. ‘Parent’ is not defined within the Family Law Act 1975 (Cth), leaving it to the Court to interpret the term with its ordinary dictionary meaning.

Being a parent requires more than common biology

As most parents would understand, being a parent is about more than sharing biological data or genes. This is recognised at common law by the interpretation of the Family Law Act 1975 (Cth) in cases involving children conceived through Assisted Reproductive Technology (ART) or IVF procedures. Sperm donors supply their genetic material for a child’s conception, and thereby fit the definition of a biological father to the conceived child. However, the Courts will not impose parental obligations on a person who merely donated biological material and has no other involvement in the child’s life in terms of parenting capacity. This further demonstrates that being a ‘parent’ requires more than just common biology.

Can a genetic donor be a parent?

The High Court in Masson v Parsons & Ors [2019] HCA 21 held that a sperm donor can be found to be the legal parent of a conceived child in certain circumstances, which significantly extends the scope of the definition of a “parent” beyond the traditional mother and father. In 2006, Masson provided his semen to his friend, Parsons, so she could conceive a child through IVF under the presumption that he would be involved in the child’s life. Parsons commenced a de facto relationship after the child’s conception with another person, and Parsons then sought to move to New Zealand in 2015 with the child. Masson commenced proceedings to order a restraint on relocating the child and to seek equal shared parental responsibility.

The High Court of Australia upheld Masson’s appeal from the Full Court of the Family Court, ordering that Masson was a legal parent of the child, despite him only being a sperm donor. Masson’s inclusion on the birth certificate as the child’s biological father, contributions of financial support and act of taking on the responsibilities of being a parent who had the intention of ongoing involvement regarding the child’s health, education and general welfare, were pertinent factors in making the decision. The High Court held that as a legal parent, Masson was entitled to equal shared parental responsibility which required him to be consulted on major long term decisions, including potential relocation to New Zealand.

Can a de facto partner be a parent?

Parsons’ de facto partner was not held to be the legal parent of the child. The High Court noted the significance that they had not been involved in a de facto relationship at the time of conception. The Family Law Act 1975 (Cth) provides that a partner to a woman who has a child via IVF must prove they were married or in a de facto relationship at the time of conception to establish that they are a parent of the conceived child. This meant that despite the de facto partner’s substantial presumed involvement in the child’s life after the conception, the High Court determined they were not a legal parent.

Relevance for parental responsibility

Determining who legally constitutes a child’s parent is most relevant for determining who has parental responsibility for the child. Parental responsibility involves decision making powers relating to the duties, powers, responsibilities and authorities which parents have in relation to their child. A presumption exists that it is in the child’s best interests for their parents to have equal shared parental responsibility. Equal shared parental responsibility, as ordered between Masson and Parsons, requires both parents to partake in major long term decisions, such as relocation, health care or education (as discussed in another article). The Family Law Act 1975 (Cth) provides that it is in the child’s best interests to have a meaningful relationship with both parents, as encouraged by this requirement for joint involvement in important decision making.

How Etheringtons Solicitors can help you

A solicitor at Etheringtons Solicitors can provide clarification you with of the relevant family laws and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with navigating proceedings for parenting orders or assigning parental responsibility.

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