Wednesday, March 6, 2019

Australia | Sperm Donor | "Sperm donor is a parent, Attorney-General argues Federal Attorney-General"

An interesting and possibly alarming intervention by the Attorney General in a High Court Case.

"Christian Porter has intervened in a High Court case, arguing the term “parent’’ should be expanded to include sperm donors in certain cases who are not married or in a de facto relationship with the mother at the time a child is conceived, a move that could have far-reaching implications for thousands of donors and their children.

If his argument is accepted, single women who use known sperm donors may find it impossible to exclude donors from having a role as parents in their children’s lives.

The High Court appeal has been launched by a Newcastle man, given the pseudonym Robert Masson, who has been trying to stop the mother of his biological daughter from moving with the child, now 12, to New Zealand.

Mr Masson and the mother, “Susan Parsons”, had been friends for 25 years when Mr Masson provided his sperm to Ms Parsons to conceive a child via an “informal artificial insemination procedure”. The pair agreed he would have a parenting role.

However, the full Family Court ruled last year that Mr Masson was not a legal parent — despite him being listed on the girl’s birth certificate, actively involved in her life and known to her as “dad”. This was because under NSW legislation, there is an “irrebuttable presumption” a sperm donor is not a parent unless married or in a de facto relationship with the mother at the time of conception. The full Family Court said it was a “constitutional heresy” to treat Mr Masson as the legal father; the state law applied, because the federal law did not provide “otherwise”.

The ruling has significance for the exercise of the court’s discretion to make parenting orders. Under the Family Law Act, there is a presumption it is in a child’s best interest for their parents to have equal shared parental responsibility.

In written submissions filed ahead of the High Court hearing on April 16, Mr Masson’s lawyers have argued the full Family Court was wrong to find he was not a parent. The submissions argue the word “parent” is “a question of fact”, in which biological and social factors could be relevant, as well as the parents’ conduct. They have argued because the federal law “otherwise provides”, the state legislation does not apply.

The Attorney-General has intervened and used slightly different reasoning about when state laws apply in a federal context to reach the same conclusion — that the state law did not apply in the case.
He has also argued the word “parent” should be given its “natural and ordinary meaning”.

The Attorney-General’s submissions argue that where the Family Law Act picks up state legislation it does so expressly and subject to careful limitations, providing a complete framework that does not leave room for the state law to apply more generally to decide who is a parent.

Mr Porter said the case raised “important questions of constitutional principle about the application of state laws in cases arising under commonwealth legislation”. He was “intervening to assist the court about the meaning of the word ‘parent’ in the Family Law Act, rather than in support of one party or another”.

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