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The sperm donor question

Jul 3, 2019 • 16m34s

The high court has found that sperm donors can have fathers’ rights, but the ruling is inherently conservative.

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The sperm donor question

27 • Jul 3, 2019

The sperm donor question

[Theme music]

ELIZABETH:

From Schwartz Media. I’m Elizabeth Kulas. This is 7am.

A landmark High Court decision has opened up new questions about how the law should define parenthood, especially for single women who conceive with the help of a known sperm donor. Bri Lee on the court's distinction between a donor and a parent.

[Theme ends]

ELIZABETH:

So Bri, this story starts with a friendship, is that right?

BRI:

Yes. Susan Parsons and Robert Masson, and those are the names that the court has assigned them, they'd been friends for about 15 years when they decided to conceive a child together in 2006, using a sort of private at home artificial insemination procedure.

ELIZABETH:

Bri Lee is a lawyer, author, she’s also a writer for The Saturday Paper.

[Music starts]

BRI:

They tried once and weren't successful, but when they tried a second time they were. The child was born in 2007 and that child is known as B.

ELIZABETH:

OK.

BRI:

At the time, Susan had a partner, Margaret. Susan and Margaret had been together for a few months. But they did not meet the criteria for the law to recognize their relationship as de facto. And of course this is so many years ago gay marriage was, you know, not yet legal in Australia. And although Margaret was present for the conception procedure, and their evidence was that they were in a relationship, the courts had to make the ruling that Susan was considered a single woman at the point of conception. And that has gone on to have huge ramifications.

ELIZABETH:

So B is conceived by artificial insemination with a donor who Susan knows. What happens next for Susan and her partner, Margaret?

BRI:

So B is born. And Robert is listed on her birth certificate alongside Susan. Margaret is not on the birth certificate.

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ELIZABETH:

And what's Robert's relationship like with B after she's born?

BRI:

Yeah, so that's the whole crux of this case is that Robert has an ongoing both financial and social engagement with B. He spends time with B as she is growing up and he makes sort of a private arrangement of child support payments.

ELIZABETH:

So how does this end up in court?

BRI:

Susan and Margaret get married in New Zealand, and around 2015 is when for sort of family and health reasons they decide that they want to relocate to New Zealand, and that's where the legal dispute begins and unfortunately where Robert and Susan's friendship begins to really deteriorate. Because Robert doesn't want to be separated from B he goes to the court and seeks a ruling to basically stop them from being able to relocate without his permission.

Susan and Margaret respond seeking orders of their own. One of which is that Robert's name be removed from B’s birth certificate and that Margaret's name be substituted on the birth certificate, which would essentially mean that Robert would no longer legally be considered B's parent and therefore he wouldn't be entitled to make large decisions about her life i.e. where she could live.

ELIZABETH:

What court does this thing go to Bri, and what does that court find?

BRI:

So just to clarify, an interlocutory order, which is a kind of holding order, which prevented the family moving to New Zealand, was delivered in 2016. And then the first full judgement is delivered by Justice Cleary of the Family Court in 2017. Justice Cleary's decision was that Robert's intentions at the time of conception, as well as his ongoing conduct once B was born, meant that he was the legal father and therefore that their child could not be moved to New Zealand without his consent.

ELIZABETH:

And what did Justice Cleary say were some of the considerations in her ruling?

BRI:

A lot of consideration is given by judges in cases like these to the best interests of the child and what the child's sort of reality is. A lot of weight was given, not only by Justice Cleary but the subsequent judges as well, to the fact that B called Robert Dad or Daddy. Also that B called Robert's mother Nana, like you would a grandma. And that B had a positive quote “uncle like” end quote relationship with Robert's partner, Greg. From a financial perspective although Justice Cleary acknowledged that the greater share of the financial cost of raising the children was borne by Susan and Margaret, it was contended that there had been some child support through a sort of private agreement that had been paid in an ongoing regular way.

ELIZABETH:

And so I assume Susan and Margaret then appeal?

BRI:

Yes absolutely they did.

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BRI:

Last year they found that their appeal was successful. Justice Thackeray of the Family Court said that it would be a “constitutional heresy” to treat Robert as the father. Justice Thackeray made comments about uniform legislation that was brought in in most states and territories in Australia in the 80s that was created to deal with babies that were born by artificial insemination procedures, and that the purpose of a lot of that legislation was enacted to make sure that neither the donors nor their children had either rights nor liabilities to one another.

So, Susan Margaret was successful when they appealed their matter with the Family Court, and when that judgment was returned Robert appealed and that's what took things to the High Court.

ELIZABETH:

We'll be right back.

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ELIZABETH:

So Bri, this case reached the High Court. It’s at this point that a number of Attorneys General start speaking publicly about it. What was it exactly that they were interested in, how did they get drawn into this?

BRI:

So in January of this year the Federal Attorney-General and the Victorian State Attorney-General jumped on board with this case and the case’s profile really skyrocketed.

[Music starts]

Archival tape — Unidentified woman 1:

“Let’s return now to our top story. And the High Court has recognised the parental rights of a man who fathered a child with a lesbian friend through artificial insemination.”

Archival tape — Unidentified man1:

“Ah… Let me ask you first, if you’ve donated sperm in the first place, don’t you give up your right to be an active parent from the get go?”

Archival tape — Unidentified woman 2:

“Hmm… Possibly, given… depending on the circumstances.”

Archival tape — Unidentified man 2:

“Look, depending what happens in the High Court, this could change the playing field completely. At the end of the day, there’s a lot of ambiguity across Australia at the moment as to the definition of a parent and it seems pretty clear to me that the Federal Attorney-General wants to fix that.”

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BRI:

The reason these Attorney-General's got involved is because they saw an opportunity to basically latch on to a Family Court matter to have a constitutional law question answered by the High Court.

[Music starts]

Archival tape — Unidentified woman 1:

“I think what’s really interesting with this case as well is the state versus the federal, sort of, jurisdiction and the different laws that you can apply to and you can appeal to that will either rule in favour of you or against you, depending actually on what state you’re in, or whether…”

BRI:

An important thing to note here is that people who aren't parties to a proceedings can't just refer matters to the High Court.
[Music ends]

So a federal and state Attorney-General might want clarification from the High Court on a question of law, but they can't do that without someone's case actually sort of naturally making it there. In my opinion, and in many legal professionals opinions, the federal and state Attorney-General's saw Robert and Susan's case as an opportunity to sort of duke it out over this constitutional law question and actually were not involved for any family law reasons.

ELIZABETH:

And what is the constitutional question that they are seeking to have clarified by this case?

BRI:

So normally it is quite simple. If a set of facts attract both state and federal legislation, federal legislation always trumps. The complexity here is that the New South Wales state law on which Susan and Margaret's case was relying, contained very express and explicit provisions for when sperm donors are not considered parents. So specifically, one section dictates and this is a quote “If a woman with a 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.”

ELIZABETH:

So Bri, it sounds like Susan and Margaret have their case made, that they've made their point and they've been successful?

BRI:

Yes, it does sound like that, however the High Court held that the appeal judge, Justice Thackeray and the bench, had basically erred in ever saying that the state laws should apply. What Justice Thackeray and the Family Court appeal bench had done was used a very specific section of the Judiciary Act. Which is normally used for a federal court like the Family Court to apply sort of procedural rules from state legislation, to basically pick up pieces of state legislation that they need to be able to kind of do their job. So things like rules of evidence, rather than for a federal court to apply laws that answer questions of fact or allocate obligations or rights to individuals. So it gets a bit fiddly, but essentially the High Court said that it was never necessarily a question and they did not have to answer the question if two laws applied and were in competition to each other. What the High Court said is that the state laws should never have applied.

ELIZABETH:

So it is possible to apply elements of state legislation in a federal case... but this was not one of those instances. The High Court said: this needs to rely solely on federal legislation, we cannot draw on state legislation in this way, in this particular case.

BRI:

Yes, that is absolutely correct. Essentially the High Court said that the state laws should never have applied. And when we understand that, it makes a lot more sense why the Federal Attorney-General and a Victorian Attorney-General would jump on this case.

ELIZABETH:

And what exactly did the High Court find?

BRI:

So the High Court found that the federal law should apply. And in overturning the appeal decision they reinstate the primary judge's decision. And that was Justice Cleary who said that Robert is to be considered the legal father of B. The High Court said the facts of the case before them were unambiguous, that it wasn't a question of whether or not Robert should be considered a parent but that Robert had always intended and acted as though he was the father of the child.

ELIZABETH:

And what does this mean for Robert Massan, what did the ruling mean?

BRI:

So, in reinstating the primary judge's decisions the High Court is basically saying that Robert will now have to be consulted on all long term decisions about B's future. So that's obviously things like living arrangements. But it also might extend to things like medical procedures or religious practices and education.

ELIZABETH:

And Bri kind of more widely, outside of Robert and Susan's relationship. Who is this ruling likely to impact. Will it be significant do you think for anybody who's using a sperm donor to conceive a child?

BRI:

So the most important thing and the reason I guess I really wanted to write about this is that the sort of headlines that have been covering this might make people panic and think that all sperm donors are now at risk of being legally considered fathers and that is just not the case particularly for anyone who is or has used an anonymous sperm donor, the High Court's decision in this case has absolutely no ramifications.

If you are an anonymous sperm donor you are still no more likely than you were before, which is not likely at all, to ever be considered that child's legal father unless you go on to create and have a relationship with that child.

This decision also has no real implications for couples who use known sperm donors to get pregnant because the law is really, really watertight in the way it's set up to conceptualise children as having two parents. You know the law has expanded to accommodate same sex couples who are using artificial insemination, or also couples who cannot naturally conceive between the two of them and it protects couples in a way that it does not currently protect single mothers.

ELIZABETH:

So it's single women who are most likely to be affected by this ruling?

BRI:

Yes absolutely. The type of person who this might have the most serious ramifications for is a single woman using a known sperm donor, as distinct from an anonymous sperm donor. But then you have an extra level of sort of social considerations there where if you're a single woman and you want to use an anonymous donor so that you don't come in to contact with any of these risks that we've just talked about an anonymous donor means IVF is required and IVF of course is extremely costly and financially not an option for many people. And so you've got these sort of social factors that really see single women potentially worse off compared to any other group of people by this High Court decision.

ELIZABETH:

On the surface it can appear like this is a story about queer parents seeking to conceive a child. But it's actually really a case about single parents and the courts kind of inherent conservatism in how it defines parenthood in or outside of a de facto or married relationship.

[Music starts]

BRI:

Yes, I agree. And something that's worth considering I suppose is that In somewhere like Canada it's possible for up to four individuals to be listed on someone's birth certificate. So this sort of presumption that the Australian courts/legal system operate under, that a birth certificate always should sort of presume to have space for two names, I think is questionable. I think it would be really interesting to talk about how the law would have developed slightly differently if we either had a presumption that there was only one name on a birth certificate and you could add another, or what would be most exciting is that if you could have, you know, sort of up to four names or something similar.

ELIZABETH:

Bri thank you so much.

BRI:

My pleasure. Thank you for having me.

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ELIZABETH:

Elsewhere in the news:

In Hong Kong, the protests against extradition legislation have escalated again, with protesters smashing their way into the Legislative buildings on the anniversary of the handover from British rule. The demonstrators sprayed slogans inside the chamber and occupied the building for two hours, before they were repelled with tear gas. One banner read: “There are no violent protesters, just tyranny.” The protests have now entered their fourth month.

And in Canberra, Neil O'Riordan has had charges against him dropped after he helped his wife of 25 years, Penelope Blume, end her life. She was suffering the advanced stages of motor neurone disease. O'Riordan had been charged with aiding suicide but prosecutors decided the case was not in the public interest and that the assisted suicide was an act of "love and compassion".

This is 7am. I’m Elizabeth Kulas. See you Thursday.

[Music ends]

A landmark high court decision has opened up new questions about how the law should define parenthood, especially for single women who conceive with the help of a known sperm donor. Bri Lee on what this means and the societal assumptions that underpin the court’s ruling.

Guest: Writer and contributor to The Saturday Paper Bri Lee.

Background reading:

Parental guidance in The Saturday Paper
The Saturday Paper
The Monthly

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7am is produced by Elizabeth Kulas, Emile Klein, Ruby Schwartz and Atticus Bastow. Our editor is Erik Jensen. Our theme music is by Ned Beckley and Josh Hogan of Equate Studios.

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sperm donation highcourt family singleparent queer




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27: The sperm donor question