Those looking for options outside of adoption can turn to surrogacy using birth technologies such as artificial insemination (“intrauterine insemination”/“IUI”) or IVF treatment (“In Vitro Fertilisation”), as alternatives. The applications and assessment procedures for these applications are fraught with legal difficulties as the Courts continue to differ in their approach. For this reason, we recommend consulting one of our experienced family lawyers at JB Solicitors for assistance with your next parentage and birth technology matter.
Artificial Insemination
Artificial insemination is the process of medically inserting semen into a woman’s reproductive system. The sperm may come from the male partner or a donor.
In New South Wales, section 14 of the Status of Children Act 1996 states that a sperm donor is not to be classified as the father of a child unless he is the husband or the de-facto partner of the mother.
Section 60H of the Family Law Act 1975 (Cth) deals with children who are born through artificial insemination. It asserts that:
“if, as a result of an artificial conception procedure, a child is born to a married woman or a woman in a de facto relationship, and the woman and her spouse or partner consented to the carrying out of the procedure, then whether or not the child is biologically a child of the woman and her spouse or partner, for the purposes of the Family Law Act, the child is the child of the woman and her spouse or partner and, if any other person provided genetic material, “the child is not the child of that person”
However, there are various legal issues that can arise from artificial insemination. Is a sperm donor classified as the legal father of the child? And if so, do they have any rights? A close examination of the recent High Court of Australia case of Masson v Parsons & Ors reveals that they do, in limited circumstances.
A Recent Case Study – Masson v Parsons & Ors [2019] HCA 21
This case concerns a case involving a same-sex couple (Parsons) who sought to relocate their family to New Zealand with a child (‘B’), who was conceived through artificial insemination. The donor (Masson) was a good friend of Parsons for over 25 years and believed that he would play a significant role in raising the child. Masson instituted proceedings to stop the child’s relocation by being recognised as the legal father.
After a series of lengthy appeals, the High Court of Australia found that Masson, for the purposes of artificial insemination, was the ‘parent’ of the child, under the Family Law Act 1975 (Cth).
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Family Court of Australia
Masson argued in the Family Court of Australia that his sperm provided him with sufficient grounds to be recognised as the child’s father. The Court agreed for three reasons. First, Masson played an active role in B’s life, as demonstrated by the fact that he was referred to by ‘B’ as “daddy”. Second, Parsons and her partner were not together at the time that ‘B’ was conceived, meaning that her partner could not be recognised as a legal parent. Third, Masson’s name was listed as the father on B’s birth certificate.
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Appeal to the Full Court of the Family Court
Parsons and her partner appealed to the Full Court of the Family Court of Australia, asserting that the trial judge had failed to apply the relevant legislation in determining whether Masson was to be considered the legal parent.
Parsons relied on section 79(1) of the Judiciary Act 1903 (Cth) which applies where there is a “gap” in the law governing the exercise of Federal jurisdiction. The “gap” in this case was in section 60H of the Family Law Act, which was silent on how single women deal with conceiving a child using a sperm donor.
The Court ultimately found that Masson, while the biological father, could not be considered a ‘parent’ under the Family Law Act or the Judiciary Act. The fact that he possessed the intention to be the father was insufficient grounds and the law could not consider more than two people to be the parents of the child. This is demonstrated through the wording of ‘both’ child’s parents throughout the Family Law Act. Additionally, section 14(2) of the Status of Children Act 1996 (NSW) asserts that a man who provides sperm for the purposes of artificial insemination is presumed to not be the father. Section 14(4) of this Act also states that this presumption is irrebuttable.
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Appeal to the High Court of Australia
The decision of the Full Court was later overturned by the High Court on appeal.
The Court found that section 79 of the Judiciary Act only applies to ‘pick up’ certain State laws which govern the exercise of a court’s jurisdiction. This was not the case with the Status of Children Act as it is a rule that determines one’s parental status and hence operates independently of the judicial process. The Court also found that the State and Commonwealth laws were incongruous because the Family Law Act is “complete upon its face” and hence leaves no room for the State law to operate.
As such, Masson was to be regarded as a ‘parent’ under section 60H of the Family Law Act. While the Act did not define the term ‘parent’, the Court adopted a broad approach and asserted that the effect of this section was to expand rather than restrict the range of person who many qualify as a apart of a child born via artificial insemination.
Moreover, the Court found that, where section 60H does not apply, an individual may still be considered a parent through a consideration of its ordinary, accepted meaning. This is a question of fact that is to be determined using contemporary Australian standards of parenting.
The relevant factors that the Court considered were:
- Masson provided his sperm with the understanding that he would be the child’s father
- He was registered on B’s certificate as the father
- He provided significant financial and emotional support to B throughout her life
- B recognised Masson as her father and referred to him as “daddy”
Hence, this case demonstrates that there are limited circumstances in which a sperm donor will be considered the legal parent of a child. This occurs in cases where a person does more than provide his semen to facilitate an artificial conception procedure, but acknowledges that they will be the father and play an active role in raising the child. The legal parentage of a child is open to judicial interpretation and decided on a case-by-case basis.
In Vitro Fertilisation (IVF)
IVF treatment refers to the process in which an egg and sperm are joined outside of the body. The embryo is allowed to grow within a protected environment for several days before it is transferred into a woman’s uterus, thus increasing the chance for utility to occur. This is the most common type of surrogacy to occur in Australia.
Following the discovery that a Sydney woman had faked the miscarriage of her donor-received baby to hide their parent’s true identity in 2016, amendments were made to the Assisted Reproductive Technology Act 2007 (NSW) to raise the standard of care of Assisted Reproductive Technology (“ART”) providers and ensure that all IVF treatments are effectively regulated by the relevant authority. In that case, the recipient of an embryo transplant had refused to attend a health clinic for an IVF check-up to confirm her pregnancy and may have told IVF Australia that she had miscarried to avoid revealing the identity of her children. Now, women who engage in IVF treatment must receive information about the “extended list of matters” laid out in section 13(3), which contains the obligation that an Art provider may obtain information about recipients or offspring resulting from IVF.
The legislation imposes the following regulations on ART providers:
- Section 30(5) – an ART provider must take reasonable steps to ascertain, between 1 and no more than 4 months following treatment, whether a woman has become pregnant following her IVRF treatment.
- Section 30(7) – an ART provider must take reasonable steps to ascertain, between 10 months and no more than 15 months following treatment, whether the woman has given birth to a child, and if so, the child’s full name, sex and date of birth.
- Section 31 – an ART provider must take reasonable steps to keep records on the child up to date.
- Section 31(1)(b1) – an ART provider must keep records of whether the woman became pregnant within a month of receiving the treatment, unless the ART provider does not know.
- Section 31(1)(c) – an ART provider must keep full records of a child who was conceived through IVF treatment, as well as the details of the gamete donor and birth mother.
- Section 31(1)(c1) – an ART provider must also record, within 15 months after treatment, whether the recipient gave birth.
- Section 33 – an ART provider must, within 2 months after becoming aware that an embryo recipient has become pregnant, give the Secretary of the Health Department the records in relation to the embryo that they are required to keep under section 31. If an ART provider does not know whether a woman has become pregnant from a donated embryo 16 months after treatment, they must still inform the Secretary.
- Section 34 – the Secretary may give direction to a health services provider to answer specified questions to determine whether a child was born as a result of ART treatment involving a donated gamete.
- Section 62 – makes it an offence to make a false or misleading representation, without reasonable excuse, in response to a request for information that an ART provider is required to obtain, or to take steps to obtain. The maximum penalty for this offence is 200 penalty units (or $22,000).
Let us help you with the IVF or Surrogacy process
It is important to seek legal advice before undertaking fertility treatment. JB Solicitors can help you with your next situation, in relation to known or unknown donor arrangements, overseas arrangements or any parentage issues that arise and will make the surrogacy process as easy as possible.
With years of family law experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors today to get started on receiving legal guidance on your surrogacy or IVF process, or for assistance with any other legal matter.