WOLLONGONG(02) 4221 9311
SHELLHARBOUR(02) 4295 8400


Who are the legal parents of an artificially conceived child?

There are different ways to start families now-a-days and it is possible that conflicts can arise around who and who isn’t a legal parent to a child. Other than natural conception, artificial alternatives with donor sperm and the act of surrogacy are methods utilized quite frequently.  The case of Masson and Parsons and Anor shows the sort of conflict that may arise in such scenarios.

In this case three parties sought different parenting orders in respect of two girls, one aged 9 and the other aged 10.  The children lived with their two mother’s, Susan and her partner Margaret and spent time with their two father’s, Robert and his partner. The children shared the same mother however, the eldest child was conceived via artificial insemination and her father was Robert. The youngest daughter was also conceived via artificial insemination but with a donor sperm.

Robert consented to providing his sperm to Susan who subsequently married her partner, Margaret in New Zealand.  Robert was on the birth certificate of the eldest daughter while Margaret was on the birth certificate of the youngest daughter. Unfortunately for Robert, the children’s mother ceased all contact with him. Robert sought the following orders:-

  1. shared parental responsibility for both children;
  2. that the children live with Susan and Margaret but spend time with him; and
  3. that Susan and Margaret be restrained from relocating to New Zealand.

Susan and Margaret sought the following orders:-

  1. declarations of parentage;
  2. that Robert’s name be removed from the eldest child’s birth certificate;
  3. equal shared parental responsibility without reference to Robert; and
  4. that the children be permitted to relocate.

In focusing on the issue of ‘parentage’ only the court said that in order for Margaret to be classified as the ‘other intended parent’ her evidence had to support the findings that:

1)      She and Susan were in a defacto relationship at the time of conception of the child; and

2)      Susan and Margaret consented to the carrying out of the procedure and Robert consented to the use of his genetic material in the artificial conception procedure.

In order to determine this, the Court had to first establish whether Susan and Margaret were in fact in a defacto relationship by looking at and considering the legal definition of a defacto relationship. The court’s findings were that Margaret and Susan were not partners in a defacto relationship when the child was conceived in December 2006 as the characteristics of their relationship did not meet the requirements at law. Due to the evidence failing on the first point, the court did not address whether Susan and Margaret consented to the carrying out of the procedure and whether Robert consented to the use of his genetic material in the artificial conception procedure. Therefore, Margaret is not the intended parent at law.

The Court then went on to address the question of whether Robert is a parent of the child at law, the court said that for Robert to be a legal parent, the evidence must support findings that he provided his genetic material for the express purpose of fathering a child he expected to parent, and was unaware of the defacto relationship asserted to have been in existence at the time of conception.

The court took into account that Robert took part in the artificial insemination process believing that he was fathering a child whom he would help to parent by way of financial support and physical care and indeed is the eldest child’s biological father. The court determined that Robert was the biological father and legal parent of the oldest child.

This article was written by Senior Associate Franca Parolin.