Australia: between the sperm donor and the mother’s partner, who is the legal parent?

Publié le : 25 March 2019

Should a sperm donor be considered as the legal parent of a child conceived with his sperm? In an ongoing case, the Australian High Court is being called on to answer this question. The case involves a sperm donor, Robert Masson, who enabled Susan Parsons to conceive her two children. The mother was single when she gave birth to the first child. She then married a woman called Margaret and gave birth to her second child.

 

In 2015, the Parsons asked the court to remove Masson’s name from the first child’s birth certificate and replace it with Margaret’s name, so that the family could move to Margaret’s native country of New Zealand. Robert Masson argued that he should be considered as the legal parent of the two children, which meant the family could not move to New Zealand with the children.

 

In 2017, the court ruled that to be considered as the child’s legal parent under New South Wales’ law, Margaret would have had to be in a de facto relationship with Susan when the child was conceived. At the time, however, their relationship was only “developing” according to the court, which then decided that: Margaret was to be considered as the future parent of the second child and Robert Masson the father of the first.

 

The Parsons appealed against this decision, asking the High Court to rule on the definition of legal parent. The Attorney-General, Christian Porter, argued that under Australian law the sperm donor should be considered as the legal parent of both children. The Parsons argued that this position did not take into account the intention of the parties when the child was conceived.

 

The Australian High Court, the country’s Supreme Court, has heard the case and is expected to rule shortly. This could have major consequences for the status of gamete donors in Australia.

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