“Parent” – a review of meaning in genetic material donation 

Masson and Parsons & Ors

The meaning of “parent” and s 60H of the Family Law Act

  1. The primary judge and the Full Court were correct in holding that s 60H is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure. Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning[4]. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning. To the contrary, s 4(1) provides that, when used in Pt VII, “parent”, “in relation to a child who has been adopted, means an adoptive parent of the child”. That implies that there is an accepted meaning of “parent” which, but for the express inclusion of an adoptive parent, would or might not extend to an adoptive parent[5]. Section 61B, which defines “parental responsibility” by reference to the legal duties, powers, responsibilities and authority of parents; s 69V, which provides for evidence of parentage; and s 69W, which provides for orders for carrying out parentage testing procedures, are also consistent with a statutory conception of parentage which accords to ordinary acceptation. Section 60B(1) perhaps suggests that a child cannot have more than two parents within the meaning of the Family Law Act. But whether or not that is so, s 60B(1) is not inconsistent with a conception of parent which, in the absence of contrary statutory provision, accords to ordinary acceptation: hence, as it appears, the need for the express provision in s 60H(1)(d) that, where a child is born to a woman as a result of an artificial conception procedure while the woman is married to or a de facto partner of an “other intended parent”, a person other than the woman and intended partner who provides genetic material for the purposes of the procedure is not the parent of the child.
  1. So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or are otherwise defined in the Family Law Act as parents. And it does not mean that the only persons who may seek parenting orders under s 61D are parents according to ordinary acceptation or are otherwise defined as parents. The range of permissible applicants is broader than that. But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.
  2. It is true, as counsel for the first and second respondents submitted, that s 5(1) of the Child Support (Assessment) Act 1989 (Cth) defines “parent”, when used in relation to a child born because of the carrying out of an artificial conception procedure, as “a person who is a parent of the child under section 60H of the Family Law Act“.  In counsel’s submission, that suggests that the drafter of the Child Support (Assessment) Act took s 60H of the Family Law Act to be exhaustive of the persons who are parents of a child born of an artificial conception procedure. That, however, is unlikely. It is more probable that the Child Support (Assessment) Act adopts an explicit definition of “parent” because it is an Act which imposes an enforceable pecuniary liability[6].  And even if it were otherwise, an Act of Parliament does not alter the law by merely betraying an erroneous opinion of it[7].  It may be that, where the interpretation of a statute is obscure or ambiguous or readily capable of more than one interpretation, the meaning ascribed to it in a subsequent statute may provide some insight[8]. But that is not this case. The meaning of s 60H is not obscure or ambiguous or readily capable of more than one interpretation. As both the primary judge and the Full Court held, its effect is plainly enough to expand rather than restrict the categories of people who may qualify as a parent of a child born as a result of an artificial conception procedure.

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