When is a sperm donor considered a parent?
SOMETHING has gone wrong when our High Court is now asked to decide what a parent actually is. Couldn’t we just ask the child?
Twelve years ago a girl was born in NSW to a single woman, let’s call her Jill, and her friend Jack.
I say the girl was born to Jack, because he provided the sperm – artificially – and his name is on the birth certificate.
No, wait. That’s not enough for me. Isn’t a parent someone who provides love and care? Isn’t that a crucial definition of parent which step-parents and adoptive parents rely on?
Then Jack qualifies again. While Jill was the main carer, Jack changed his daughter’s nappies, cooked for her, calmed her at night, went to school functions and boasted of making her a “mean ballet bun”.
And she called him “dad”, which to me seals the deal.
Except it doesn’t. Not under our laws, which sometimes make a straight road crooked.
See, here is the complication and it’s a very modern one.
Jill and Jack are both gay. They’d been friends for 25 years when Jill asked Jack for sperm for her to conceive.
He did so, after they’d agreed he’d play a role in the life he was creating. That’s unlike most sperm donors and it shows a moral seriousness and responsibility which the law should support.
Except the law has so far not.
Jill has since married a woman and had a second child with the help of another donor. She now wants to move her family to New Zealand.
Jack, in Newcastle with his own male partner, objects. That move would make it hard for him to stay involved in his daughter’s life. Isn’t he the dad?
In a world of rainbows and fluffy kittens, Jill and Jack would agree that their beloved daughter always comes first. They’d stay together – with their daughter’s second mum, too – in either Newcastle or New Zealand.
But humans are complicated and Jill and Jack have since spent an estimated $1.5 million not on their daughter but on lawyers and courts to resolve what they themselves cannot. Which is usually a mistake.
At first a Family Law Court judge, Margaret Cleary, did rule that Jack – aka “Robert Masson” – was the girl’s legal parent.
She said that was not just because Jack biologically was the dad, but because he did what dads should in helping to raise his daughter as “a parent in the ordinary meaning of the word”.
But Jill appealed and the Family Court overturned that decision, saying it was a “constitutional heresy” to treat Jack as the legal father because politicians had passed a law, without knowing him, to say he wasn’t.
The NSW law – and other states have similar ones – says a sperm donor is presumed not to be a father unless married or in a de facto relationship with the mother at conception. And Jack wasn’t.
This is too crude.
People very close to me have had children with the help of anonymous sperm donors and I agree it would be completely wrong if such donors suddenly bobbed up and claimed to be the dad – and with legal rights.
But can such a law truly apply to Jack? Seriously?
Jack says no and has now taken his case to the High Court, for a hearing next month.
His argument is that there is a federal law – the Family Law Act – that overrides those state laws and Federal Attorney-General Christian Porter has intervened to in effect back him up.
Porter says the definition of “parent” should be given its “natural and ordinary meaning” by the law, which in this case means including sperm donors who actually act as parents.
Surely that’s right. The Family Court was obviously right to say that simply fathering a child didn’t make you a dad. Most of all, parenting must mean giving the kind of love and care that Jack has.
Of course, the High Court may simply state there’s no federal law that specifically overrides the state laws.
But if it instead decides just what a mum and a dad really are, the change could be profound for anyone who has a child by a sperm donor they know.
The rest of us may also gain.
Time was that just getting a woman pregnant was enough to make a man a father.
Now, though, with so many deadbeat parents, I’d like a court to stress that this doesn’t even come close. That parents are what good parents do. Watch Andrew Bolt on The Bolt Report LIVE 7pm week nights