A court in Australia has ruled that a sperm donor is the legal father of a child because he was involved in her life.

The brief facts of the case are as follows- Robert Masson and Susan Parsons agreed to have a child through artificial insemination. It was not a typical case of sperm donation as Mr Masson was named as the child's father on the birth certificate and was in fact involved in her care and upbringing. Ms Parsons began a new relationship and wanted to move to New Zealand with the child. But Mr Masson prevented the move through the family court as he was found to be the child's legal father . On appeal the state court ruled that he was not the legal father but merely a sperm donor Thereafter the Australian High Court overturned the appeal and ruled that Mr Masson was indeed the legal father because he was the child's biological father and involved in the child's life.

What then is the legal position for children born as a result of sperm donation in Scotland and is there any scope for the donor to become the legal parent of that child?

Traditionally, a child's parents were those with whom the child had the genetic connection but of course now children may have a parent or indeed parents with whom they have no genetic connection whether through egg donation, sperm donation or both. The Human Fertilisation and Embryology Act 1990 and the Human Fertilisation and Embryology Act 2008 governed the new ways in which the parent-child relationship could be established including surrogacy and artificial insemination.

In terms of the 2008 Act where a child is born as a result of artificial insemination and the sperm is not from the mother's husband or consenting partner then the husband or partner of the mother and not the sperm donor is deemed to be the father of the child for all legal purposes. It is then not open to the genetic father of that child to prove paternity by establishing a genetic link.

In accordance with Australian state law when a woman conceives a child with a man by artificial insemination that man is not the father. Whereas in accordance with Australian federal law the court will look at the intention and subsequent involvement in the child's life when determining who is the child's legal father.

In Scotland if a man is named on the birth certificate then he is presumed to be the father of that child. If the named father wishes to challenge parentage then the most common option is to undergo a DNA test to prove or disprove the genetic link. If it is established that there is no genetic link then the named father can make an application to the court in Scotland for a Declarator of Non-Parentage which extinguishes the parent-child relationship along with the legal rights and responsibilities that go with that relationship. Conversely if a man believes he is the father but is not named on the birth certificate then he can seek a DNA test to prove a genetic link between him and the child and may make an application to the court for a Declarator of Parentage.

The Australian case ultimately concerned a debate between state and federal law .The father in Australia was named on the birth certificate which, in Scotland, would automatically bestow parental rights and responsibilities on that parent as opposed to sperm donors who do not have those rights.

If you have any queries about the parentage of a child then please do get in touch with our family team who would be happy to assist.