High Court of Australia
1: Masson v Parsons [2019] HCA 21 | June 19, 2019
Court or Tribunal: 
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Parentage, Parental Rights, Same Sex Parents, Same Sex Relationship, Sperm Donation, With whom a child spends time with
Judges:  Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J


Background: Mr Masson had donated his genetic material in 2006 in a private, personal insemination to his friend of about 25 years, named under a pseudonym as Susan Parsons. Mr Masson agreed on the understanding he would help as a parent, provide financial support and physical care. He is named as the girl’s father on her birth certificate. He was actively involved in the life and care of the girl and her younger sister, with both calling him “Daddy”, court documents show. Issues arose when the mother and her partner, Margaret, tried to take the girls, then aged 10 and 9, to live in New Zealand, where the couple married in 2015.  
 
  [Legal Issue]Mr Masson’s lawyers argued that, under the Commonwealth law, Mr Masson should be the parent, as he is the biological father and was involved in the child’s life. He had donated his genetic material in 2006 in a private, personal insemination to his friend of about 25 years, named under a pseudonym as Susan Parsons. Mr Masson was at first successful in fighting their move overseas, but the Parsons appealed before a full court of the Family Court, which agreed with the women that he was not a legal parent. They successfully argued that the laws in most of the states rule out a sperm donor from being a father and that Mr Masson was therefore not a parent. Mr Masson appealed to the High Court where the case was heard in April. He argued that the Commonwealth law should apply   [Court Orders]The High Court has found a man who donated his sperm to a lesbian friend to have a child is the father, due to his involvement in the child’s life.     


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Supreme Court of Queensland
2: Re Cresswell [2018] QSC 142 | June 20, 2018
Court or Tribunal: 
Catchwords: Assisted Reproduction, In Vitro Fertilisation, Parens Patriae, Posthumous Sperm Donation, Sperm Donation, Succession
Judges:  Brown J


Background: A Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby. Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested. Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic. 
 
  [Legal Issue]The court decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it. Ms McMillan said while the resulting child would not have the benefit of a father, there was support from a paternal and maternal grandfather.   [Court Orders]The applicant is entitled to possession and use of the spermatozoa to facilitate pregnancy and the Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction.     


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Family Court of Western Australia
3: Farnell & Anor and Chanbua [2016] FCWA 17 – (The Baby Gammy Surrogacy Saga) | April 14, 2016
Court or Tribunal: 
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Child of a marriage, Evidence, Parentage, Parental, Parental Responsibility, Parental Rights, Perjury, Surrogacy
Judges:  Thackray CJ


Background: A baby with Down syndrome at the centre of an international surrogacy dispute was held by the Family Court of Western Australia not to have been abandoned in Thailand by his Australian parents. This case involved twin children, Gammy, and his sister, Pipah, born in Thailand to a surrogate mother (“the surrogate”) using a Western Australian man’s sperm (“the father”) and an anonymous donor’s eggs. The father returned to Australia with Pipah, but not Gammy. It was claimed by the surrogate that the father had abandoned Gammy in Thailand because Gammy had Down Syndrome. The surrogate issued proceedings in Western Australia seeking the return to her of Pipah to live with her. The father opposed the Application and wanted Pipah to stay living with him. The father had previous conv 
 
  [Legal Issue]With whom a child lives – The applicants entered into surrogacy arrangement with the respondent birth mother – Twins born in Thailand as a result – The girl was brought to Western Australia to live with the applicants, while the boy remained in Thailand with the birth mother – The applicants seek an order for the girl to continue living with them – The birth mother seeks an order for the girl to live with her in Thailand – The male applicant is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl – This risk must be weighed against the high risk of harm to the girl if she is removed from her current home   [Court Orders]Orders for the girl to live with the applicants and for them to have parental responsibility – No orders requiring the applicants to allow the birth mother to spend time with or communicate with the girl – Applicants required to send some of the girl's schoolwork to the birth mother – Formal findings made that the applicants did not abandon the boy and did not try to access his trust fund.     


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Family Court of Australia emblem
4: Groth & Banks [2013] FamCA 430 | June 11, 2013
Court or Tribunal: 
Catchwords: Biological Father, In Vitro Fertilisation, Mitochondrial Transfer, Sperm Donation
Judges:  Cronin J


Background: The parties in this dispute lived together as a couple for six months before breaking up in 2002. After separation, they remained friends and the man agreed to donate sperm so that the woman could undergo IVF treatment. The man had also signed a document acknowledging that he had no legal claim to any child born of his sperm donation. However, the man did attend the birth of the child and visited the child regularly, effectively bonding with the child as father and son. This was the case until the relationship between the man and his former partner deteriorated in late 2011, after he revealed that he had a new girlfriend. The woman had since prevented the man from seeing the child. As a result of this, the man launched legal proceedings seeking to re-establish contact with his son, a 
 
  [Legal Issue]The woman argued that according to the Status of Children Act 1974 (Vic), there is an irrebuttable presumption that the party donating the sperm that results in an IVF pregnancy is not legally considered the father of the child. The judge however found that this legislation was irrelevant, as it relied on the sperm donor being effectively "unknown" or "anonymous", where in this case the man had developed a meaningful parental bond with the child. Even if the legislation was relevant, the man would still comply with the definition of “parent” under the Family Law Act 1975 (Cth), the judge argued, and concluded that despite any potential conflict between the State and Commonwealth legislation, that the Commonwealth law would still prevail, as per Section 109 of the Constitution.    [Court Orders]IT IS ORDERED (1) That the applicant and the respondent have equal shared parental responsibility concerning the major long-term decisions for the child. (2) That the child live with the mother with routine stays with his father, encompassing every second weekend and a few hours every Wednesday, once the child reaches school age.     


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Supreme Court of NSW emblem
6: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 | May 23, 2011
Court or Tribunal: 
Catchwords: Posthumous Sperm Donation, Rights of Executors and Administrators, Sperm Donation, Succession
Judges:  R A Hulme J


Background: What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child? Ms Jocelyn Edwards seeks a declaration that she, as the administrator of the estate of her late husband, Mr Mark Edwards, is entitled to possession of sperm that was extracted from his body shortly after his death. Although there is no direct evidence, the clear and only inference is that she desires to have a child with the aid of assisted reproductive treatment. 
 
  [Legal Issue]Ms Edwards argued that, as the administrator of her late husband's estate in relation to the disposal of his body, she has a right to possession of any part thereof and no other party has a superior right. The Attorney General however argued that there is a right of property, but the right of an executor or administrator to possession of the deceased's body is limited to fulfilling the duty to ensure prompt and decent burial or cremation.   [Court Orders]The Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.      


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