Who is a Parent in Legal Terms?
With the increasingly diverse makeup of blended families, surrogate mothers, sperm donors, gay and lesbian couples, the Family Court has had to determine the rights of parents when those relationships break down.
Is the biological father of the child of a lesbian couple, the legal father? Does he have any right to have a role in deciding on the child’s education, religion or relocation to another country?
Definition of Parent
Under NSW legislation, a sperm donor is not presumed to be the father of a child conceived by using his sperm unless he is married to the mother or in a de facto relationship with her. In the same way, the Family Court cannot declare intended parents who are in a surrogacy arrangement to be the parents of the child.
In relation to parents in NSW using a surrogate to conceive they must look to the Surrogacy Act 2010 (NSW). The Surrogacy Act provides a legal structure for the Supreme Court to transfer full legal parentage of a child born by surrogacy from the birth mother and her partner if she has one, to the prospective or intended parents.
There are a number of preconditions before a surrogate arrangement can gain legitimacy. These include the circumstances of the surrogacy arrangement, whether those involved have received counselling and legal advice and whether the surrogacy was sanctioned in a written agreement. Most importantly the guiding principle is that such an arrangement is in the best interests of the child.
Once parentage has been declared, the Family Law Act 1975 (Cth) (Family Law Act) can then make parenting orders in relation to a child born of surrogacy, concerning parental responsibility and live-with orders.
Altruistic v. Commercial Surrogacy
The Surrogacy Act underlines the illegality of commercial surrogacy and the possibility of criminal sanctions for such an arrangement. Parents cannot pay for the child beyond necessary medical and associated costs.
An altruistic surrogacy arrangement is a mandatory precondition to making any parentage order. This precondition aims to protect the child and the parents providing a legal structure for surrogacy.
Birth Mother Status
The birth of the child must be registered and the birth mother and her partner if she has one are registered on the birth certificate of the child.
It is mandatory that a surrogacy arrangement has been agreed to pre-conception of the child and that it is in writing.
An application for parentage is normally made in the period from 30 days from the child’s birth to no more than 6 months afterwards with exceptional circumstances allowing out-of-time applications. This time limitation was intended to give the child security and stability,
The Family Law Rules stipulate that both the applicant and surrogate mother must provide Affidavit evidence including a copy of the surrogacy agreement, the time of conception, the time after the birth and evidence of counselling. As the best interests of the child are paramount the Court needs to have evidence of informed consent by all parties so that the child will have a secure home environment.
Each state has its own legislation. In New South Wales to adopt, you have to be aged over 21 years and at least 18 years older than the child to be adopted, whereas in the ACT, you must be over 25.
Under the Adoption Act 2000 (NSW) the Supreme Court makes adoption orders, where the legal rights and responsibilities for a child are transferred from the child’s parents to the adoptive parent.
When the declaration of parentage is made, the Family Court can then make Orders for what is in the best interests of the child.
Confusing Interplay of State and Commonwealth Legislation
Is a sperm donor a parent?
The recent High Court case of Parsons and Anor v Mason  FamCAFC 115, highlights the difficulties for the courts in defining who is a parent.
The High Court is determining the rights of a sperm donor, Robert Mason, in the case of Parsons and Anor v Mason  FamCAFC 115. The child is the daughter of a lesbian couple, Margaret and Susan Parsons, one of whom, is the child’s biological mother. The couple also have another daughter who has a different, anonymous biological father. Both children call Mr Mason “daddy”.
When the child was conceived, the couple agreed that Mason would have a role in the child’s life and he is listed on her birth certificate. However, when the Parsons wanted to move to New Zealand, Mr Mason objected and made an application to the Family Court to be declared a parent. The Judge in the first case took into account Parson’s intentions when donating his sperm and his involvement in the girl’s life and declared him a parent. The full court of the Family Court overturned this decision when the mothers appealed, as the Family Law Act does not give the Court the power to declare a parent.
This is a state power and the State Supreme Court makes the declaration of parentage.
The law recognises non-biological parents of a child born by artificial insemination or surrogacy. For a couple in a lesbian relationship, the biological birth mother is listed on the birth certificate, and the other mother listed as ‘parent’. They must be either married or in a de facto relationship before conception of the child. This reflects the same rights and status as heterosexual couples who use IVF or sperm donors.
One of the reasons the Judge originally determined that the other mother in the Parsons case was not the parent was because Susan and Margaret were not in a relationship when the child was conceived.
In April 2019 the case was heard by the High Court and we are awaiting the decision to clarify who can be declared a parent.
The Way Ahead
Each case is decided on its facts and how the legislation is applied to those facts. State and Commonwealth legislation needs to reflect changing social mores. There may be some benefit is working out an agreement for couples who want the biological parent to have a role in the child’s life so that if relationship breaks down or people wish to relocate, there is an agreed procedure so that the best interests of the child are maintained beyond the parents’ conflict.
In the meantime, it is important to seek legal advice to understand your rights and responsibilities. Contact David H Cohen & Co to discuss related matters or any other legal concerns.