Gay sperm donor dad or lesbian partner, who is the legal parent?

Carolyn Moynihan
February 19, 2019
Reproduced with Permission

This has to be one of the craziest, mixed-up "modern family" stories so far, and some time this year the High Court of Australia has to provide a legal ending.

Let's tell it from the perspective of a little girl who is now 11 years old, because she and her younger sister (10) are the ones who stand to lose most from the tragic mess that the adults in their lives have created.

To us she is B, the name given her by the court. B and her sister C have grown up with mummy, Susan Parsons, and her partner, Margaret, and a visiting daddy, Robert Masson, who has a partner called Greg. (These are all names made up by the court.) Masson's mother is nana. They have been living in Newcastle, north of Sydney.

B and her sister haven't seen so much of daddy in recent years, because mummy and Margaret don't want him to be daddy to the girls any more. They even want Margaret's name to be on B's birth certificate (C has a different father anyway) and to move to New Zealand where mummy was born.

Daddy doesn't want this to happen and is fighting it in court. This has been going on for almost five years, and Margaret has been sick (with cancer, depression and anxiety).

We can only guess at B's and C's feelings about this, of course. Will B, at an age almost when she could decide how to manage her own sexual life (at least) with the help of various experts, have a say about whom she regards as her parents? And how hard will that be?

But who are B's parents, actually?

For those who know where babies come from the answer is really quite simple: Parsons and her gay (former) friend Masson. They met in 1990 and around 2006, when Parsons was 40, she suggested they have a baby together. Masson agreed, according to court documents, so long as he could co-parent the child because he had been abandoned by his own father.

The New Zealand Herald reports:

"However Parsons, then 40, met Margaret, some 10 years her senior, and began a relationship with her just as she and Masson were attempting to conceive by private, informal artificial insemination.

"Masson was caught off guard when Margaret was at Parsons' home for the second attempt in December 2006.

"Margaret used a syringe to inseminate Parsons and the pair would later say they were in a de facto relationship at the time.

"Being in a de facto relationship at the time of conception would give Margaret claim to parentage of the baby, a girl born in September the next year.

C, Parson's second daughter, was born in 2008 through an American sperm donor programme. Masson had declined, but he continued his father role with both girls, having moved to Newcastle for that purpose.

Since early 2014, however, the women have been trying to move to New Zealand with the girls, but Masson objects. Under the Hague Convention a child cannot be taken by a parent from a member country to another member country to live without the permission of the other parent.

The battle between the parties became embittered and in October 2015 the women filed court papers to make Margaret the intended parent of both children, replace Masson's name on B's birth certificate with Margaret's and relocate to New Zealand.

"But Justice Margaret Cleary, in her judgment in October 2017, did not accept the relationship was de facto at that stage, only developing, albeit fast," according to NZ Herald. Cleary "ruled that Masson was the father of B, and Margaret the intended parent of C, and that the women could not relocate to New Zealand."

Whether Masson is a good father - within the limits indicated -- we don't know. The women have sought orders against him: one to reduce his contact with the girls and prevent him from acting as a parent to them in public; and another to restrain him "from taking photos of the children while in the bath or naked, posting images of them on the internet, attending their school, and from Greg or his family referring to the children as members of their family."

Nor do we know anything else about the quality of family life in this group of people. But that is not the issue before the appeal court. Two legal scholars writing in The Conversation explain it this way:

"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.

That the High Court has accepted the appeal shows there is room for doubt. The scholars regard it as "a curly question" and ask:

"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?"

Such is the complexity - and potential for further damage to the children - of what the academic writers see merely as an instance of "the increasing diversity of Australian families" that the law should accommodate better.

The academics would like to see a more "child-centred model of legal parentage" in which the child's perspective would count. In this case they seem to think that B and C, on the basis of their experience, would identify the two women as their parents. That may well be the case, and it may be the best of the bad solutions on offer.

But it's much too late to be thinking of a child's best interests when 8 or 10 or 11 years of their life has gone by and some "diverse" form of family life has not worked out. The time to think about the children is before the adults make a decision based solely on their own personal desires.

And yet it is adult desires that society is prioritising at every turn, with assisted reproduction, surrogacy, loose talk about "family diversity" and changing the law to validate it all. In the Canadian province of British Columbia children can now have more than two legal parents where that reflects the intentions of all the adults before conception. Are intentions like that, laws like that, designed with the good of children in mind? I don't think so.