Leigh Sales from the 7.30 Report discusses the High Court case of Masson v Parsons. For the first time we hear from both sides of an unprecedented High Court sperm donor father case and speak with lawyer Nicole Evans on the legal aspects of the case and future implications.
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Robert: My daughter runs a monthly cake stall; she cooks these beautiful brownies. She does beautiful cinnamon scrolls, rocky road, and M&M cookies.
Robert: The ingredients for making babies have never changed. Itโs just that some modern Australian families are now using a different recipe.
Susan: We felt this man gave us a wonderful gift because of our circumstances have been a bit of a roller coaster ride.
Reporter: So, are you dad or donor?
Robert: Iโm a dad, the hands-on dad.
Reporter: Do you have any regrets about having to fight for your parenting rights in the High Court of Australia.
Robert: None whatsoever.
Reporter: Do you regret having so much contact with the biological father?
Margaret: We didnโt have so much contact. All through Susanโs pregnancy where was he, nowhere.
Reporter: The Family Court of Australia suppresses the identities of those involved to protect the children. This case is so unique and has posed so many questions about the modern family that, although I canโt show you their faces for legal reasons, tonight for the first time youโll hear from both sides of this landmark ruling, a ruling which saw the very definition of the word parent taken all the way to the High Court. His family court given pseudonym is Robert Mason the biological father who in 2006 successfully helped a lesbian friend conceive a baby girl via artificial insemination.
Robert: Right from the beginning I remember cutting the umbilical cord, giving her first bath in the birthing suite, changing her first nappy and then at one point we were even talking about moving in together and raising the children under the one roof and we always said that once the children went to school that Iโd have 50:50 care.
Reporter:
The court given pseudonym for the girlโs biological mother is Susan Parsons her partnerโs pseudonym is Margaret biological father Robert masse and says that youโre always co-parents and even discussed moving in together is that the understanding that you went into the birth of your daughter with.
Susan: No not at all. I was with Margaret at the time and Robert had met Margaret and Margaret was my partner.
Reporter: Susan and Margaret werenโt able to prove they were in a de facto relationship at the time of conception a detail that would prove crucial later on. So, Robert Mason is on the birth certificate as the father, he was present at the birth and helped you to create your daughter. How is he not the father?
Susan: Well, he is the father, but he hasnโt parented the child.
Robert: We had a period of you know six years where things worked really well, we had this really great family unit that functioned really well.
Reporter: Adding another layer of complexity to the case just over a year after their first child was born the mothers had another daughter. This time Robert wasnโt the donor, but the younger child also calls him dad. Thereโs plenty the parents donโt agree upon, but they do agree that things began to go awry when the women planned to move the girls overseas.
Robert: Everything seemed to change and the concept of moving to New Zealand was introduced as an option.
Susan: Well, when things really changed it was Ben we were relocating and that was when he first really pushed for having more time and set time.
Reporter: What happens next would be one of the worst outcomes possible for parents who use so-called known donors.
Nicole: A known donor is someone who knows the woman and has agreed to provide sperm for the purposes of her having a child generally on the basis that there will be some involvement in the childโs life.
Reporter: Did you have it a formal agreement in place with the biological father of your daughter?
Susan: No because he wasnโt going to be here.
Robert: Closer to the birth I tried to initiate an agreement but that was unsuccessful so yep predominantly verbal arrangements that we shared with our friends and family at the time.
Reporter: Lawyer Nicole Evans specializes in same-sex family law and sperm donor agreements, so this is a donor agreement, and it sets out partyโs intentions in going into the arrangement and what level of contact if any with a child. Reporter: Are these sorts of agreements legally binding though?
Nicole: Theyโre not legally binding at the moment unfortunately. The law just hasnโt caught up with how family structures are created today. The mothers relied on state legislation in that the man was a sperm donor and therefore not a legal parent of the child. The man relied on the Family Law Act to say that under the Act he was a parent.
Reporter: Robert Mason won the first round of the family court battle the mothers then appealed successfully so Robert Mason took the fight to the High Court of Australia.
Robert: First impression walking in there itโs a very imposing building youโve got seven judges and seven attendants in front of you, and we all looked at each other and said how did we end up here.
Susan: We just figured that that was where it was going to go.
Reporter: Finally in June this year the High Court ruled in favour of Robert Mason.
Susan: For me personally I was very shocked by the announcement.
Robert: Instantly thereโs a sense of relief I guess from the stress and the ability to feel we feel much more firmer footed and not have any of these sorts of legal issues being held over a head.
Reporter: How much of your own resources have you had to put into defending this?
Robert: Over a million dollars.
Nicole: I think itโs very different difficult for lesbians who want to have a known donor for you know reasons that they want the child to know the biological heritage and want that person involved in the childโs life but at the risk now that that person might have some legal status is quite scary for a lot of lesbian couples.
Sarah: Iโm Sarah Edenโs biological mom, this is Eden my 16 year old son this is Godwin Edenโs biological dad this is Julie Edenโs other mother and my partner and this is Corey, Godwinโs partner and co-parenting as a dad to Eden.
Reporter: Screenwriter Sarah Walker and her family have an informal known donor co-parenting arrangement. Theyโve followed the high court case with interest.
Sarah: Obviously we all decided upon his name and that was tricky youโve got four people with different ideas about what was a great name that took us ages, so all the decisions were all, the major decisions were made together but with the understanding that at the end of the dayโฆ
Godwin: Julie and Sarah have the first say.
Eden: If anything itโs good just for those reasons like more Christmas presents more parents like I got four parents and every single one of them I love for a different reason which is really cool.
Sarah: A few people who had had difficulties with known donors advised me that I should put it in writing but it that in itself felt like a betrayal of trust we are four very different people.
Reporter: they say their arrangement works but it means the high court case will likely have an effect on families like theirs.
Sarah: This suddenly opens the door to a lot more cases where people are going to be taking each other to court and the children are going to be caught in the middle. Godwin: But you know what we were lucky, and we were probably lucky in a naive sort of way.
Reporter: So, if a couple came to you today a lesbian couple seeking a known donor arrangement what would you tell them what advice would you give them given your experiences?
Susan: I think given our experience with the clinics I would just recommend a clinic because itโs so easy.
Robert: Iโd imagine thereโs a lot of people out there now fearful of what it means for them I would say that anybody that is thinking about donating and they want to have a role in that childโs life I would say donโt do it.
Reporter: Has it taken a toll on the girls?
Susan: Well, it has but I think itโs just made them grow a bit faster.
Reporter: Because obviously thereโs plenty of birthdays Christmases maybe weddings for your daughters down the track how can you ever overcome the acrimony that youโve had with the biological father.
Susan: Well, I think you just move on, and you just deal with it yeah lifeโs too short for that sort of resentment and thatโs sort of animosity.
Robert: I think with some assistance by the right counsellors we should be able to get it back onto an even keel.
