To avoid orphans** - you need to know who the parents are

In theory, given modern science, the question of who is a parent of a child should be relatively easy to answer.

As the decision in Masson v Parsons [2019] HCA 21 highlights, the answering of this question is not always straight forward.

Briefly the factual matrix involved a female asking a male friend to be a sperm donor so she could carry and bare a child. The 'couple' each entered into longer term same sex relationships with other people, however the male friend was registered on the birth certificate of the father and was actively involved and helped finance raising of the child.

When a dispute arose in relation to living and caring arrangements for the child between the biological mother and father the court confirmed:

1. There are at least three ways in which a person may be or may become a natural parent of a child depending on the circumstances of the particular case, namely genetically, gestationally and psychologically (see In re G (Children) [2006] 1 WLR 2305).
2. The question of whether a person qualifies as a 'parent' is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word and the relevant circumstances of the case.
3. To characterise the biological father of a child as a 'sperm donor' (and therefore not a 'parent') suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure.
4. This said, it was unnecessary in this case to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word 'parent'.
5. This was because in the circumstances of this case, the man provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child's parent; that he would be registered on her birth certificate as her parent, as he was; and that he would, as her parent, support and care for her, which since her birth he had done.

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** For the trainspotters, the title of today's post is riffed from a line in the Beck song 'Orphans’.

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