Sperm donation is testing what it means to be a legal parent, all the way to the High Court

The family courts have historically treated legal parentage as a question of who has “begotten or borne” a child. But increasingly complex family situations created as a result of donor conception, surrogacy, IVF and DNA testing are sorely testing this biblical-sounding definition.

In 2019, the Australian High Court will be hearing the appeal concerning the legal parentage of a child born via sperm donation. This is a crucial opportunity for the court to reconsider the “begotten or borne” definition, and the emphasis currently placed on biology and how someone was conceived.

Some time this year, the High Court will be telling an 11-year-old girl (let’s call her Billie) who her legal parents are. By the age of 11, most of us have a pretty clear picture of who our parents are, and chances are, Billie does too. She and her younger sister live most of the time with their two mums (Susan and Margaret Parsons), and have regular time with their dad (Robert Masson) and his partner Greg.*

Read more: Mum, dad and two kids no longer the norm in the changing Australian family

Why is this case significant?

Billie’s family is in the High Court because her mums want to re-locate to New Zealand, and her dad objects. Whether the Parsons family should be allowed to relocate is a parenting order decision, in which the best interests of Billie and her little sister must, under the Family Law Act, be paramount.

But because Australian family law puts a big emphasis on “the benefit to the child of a meaningful relationship with both parents” when deciding the best interests of the child, whether Robert is considered Billie’s legal parent will influence the outcome.

Billie’s case is significant because at its heart is a curly question: what does it mean to be a legal parent? Pull at this thread, and it unravels many other questions. What counts when judges are deciding a child’s legal parentage? Should the court consider the circumstances of the child’s conception, birth and genetic relatedness? Are the intentions of the people who helped bring the child into the world relevant? What about whether they have functioned as the child’s parents so far? And is the child’s perspective relevant?

Read more: Connecting 'diblings': how the law is failing to keep up with modern families

Family law has struggled to keep up with developments in assisted reproduction, paternity testing and the increasing diversity of Australian families. Parentage issues arise not just as a result of assisted conception, such as in cases donor conception or surrogacy. Issues also arise when children are raised by a non-genetic parent for cultural reasons (such as in some Aboriginal or Torres Strait Islander families), or where a man has been raising a child who he later discovers is not his biological offspring.

Why is Australian parentage law so messy?

Australian parentage law is particularly complex because of uncertainty surrounding the way the federal Family Law Act interacts with state or territory laws.

There is, as one senior judge points out, “serious divergence of judicial opinion in this area” and the Family Law Act does not provide any clear answers.

The overall lack of flexibility for diverse families has led the Family Law Council to conclude the present framework does not “reflect the reality of parenting and family life for many children in Australia” and that comprehensive federal legislation that defines legal parentage across all circumstances is needed.

How can we clarify the law?

With such statutory complexity, the High Court may be limited in what it can do to clarify the law in Billie’s case. For decades, the Family Court has debated whether the provisions in the Family Law Act regulating legal parentage for children conceived via assisted reproduction exclusively define legal parentage for these children, or merely enlarge the category of people who can be determined a parent. Neither of these approaches, however, adequately respond to the bigger issue of how “parent” is defined.

When interpreting the term “parent” within the Family Law Act, judges have assumed the use of the term “both parents” means a child may have a maximum of two parents, each of whom has “begotten or borne” the child (unless an adoption order is in place, or a statutory exception applies).

Read more: Victoria's world-first change to share sperm or egg donors' names with children

This biological interpretation is at odds with understandings of the meaning of “parent” in other areas of law. For example, in migration law, the Full Federal Court held in 2010 that the word “parent” is not limited to biological parents. Rather, it “is used today to signify a social relationship to another person” often characterised by “intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”.

In a number of other jurisdictions, including Canada’s British Columbia, children can have more than two legal parents, where that reflects the intentions of all the adults before conception.

Should children have a voice?

But something important is missing from this debate. At 11 and ten, Billie and her younger sister could probably tell the court a lot about who they regard and rely on as their parents. Their legal parentage forms a crucial part of their legal kinship identity, and therefore part of their personal identity. It affects their legal relationships not just with their legal parents, but with one another as siblings and with extended family.

Yet amendments to the Family Law Act in 2012 explicitly removed decisions surrounding legal parentage from “parenting orders” (ie, orders that state the parenting arrangements for a child, including matters such as who they live with and when). This means that when making decisions about a child’s parentage, the best interests of the child are not paramount and there is subsequently no requirement that the child’s views be considered.

When the trial judge first heard Billie’s case in the Family Court, she discussed the children’s understanding of their family in the basic sense of who the children called “mummy” and “daddy”.

Ultimately, however, the judge emphasised Robert’s genetic contribution, and his intention to be a father in deciding that he was a legal parent (and that Margaret, who had been present at Billie’s conception, and has been one of her primary care-giving parents from birth, was not).

Achieving a more child-centred model of legal parentage is likely to be a long process, requiring significant changes to legislation. How the High Court responds to this case, and the curly problems of legal parentage it raises, may help shape reform.

* This article uses the same pseudonyms used by the Family Court