Who is a parent may not be determined by biology: Full Court

Who is a parent is a fundamental question in the eyes of a child. As families come in all shapes and sizes, with the rise of sperm donation, IVF and egg donation over 40 years ago, society has continued to change as to who is recognised as a parent.

A recent appellate decision of the Federal Circuit and Family Court of Australia has made plain that absent biology, a person may be a parent if they have the intention to parent.

The case, Ophoven & Berzina [2025] FedCFamC1F 97 concerned a man and a woman who had been in a relationship (but not a de facto relationship) for 10 years, where they had made a number of attempts to conceive a child. After failing to conceive naturally, between 2008 and 2009 they underwent four cycles of IVF using their own and other genetic material. None were successful.

In 2013, the woman tried IVF again in an overseas country. The man was concerned as to the health risks to the woman and the child from that. There was a dispute between the parties about whether he told her that their relationship would be over should she pursue IVF in that country. In any event, she proceeded, but the attempt was unsuccessful.

In early 2014, the woman underwent another cycle of IVF overseas, using sperm from a donor. The man did not consent to the treatment. At some stage in 2014 the parties briefly separated, but it is unclear from the judgment when that was.

The woman became pregnant. On her return to Australia, the woman gave evidence that she told the man: “I will give you the choice if you want to be a father to the baby and form a family together or I will bring the baby up on my own.” He replied, “I want to be a father”.

They resumed their relationship, although still not as a de facto couple. The man supported the woman through the pregnancy, and he purchased a pram and baby capsule for her. They attended a baby intensive course together before the child’s birth.

Prior to the child’s birth, the parties decided to live together following the child’s birth.

The man was present at the birth. The parties named the child together, with the child’s surname as that of the man, and were both named on the birth certificate as the parents.

They then lived together as a de facto couple from the birth of the child in 2014 until late 2017, when the child was almost 3. They had each provided care to the child. After the breakdown in their relationship, the man sought orders from the court that the child spent time with him.

The child identified the man as “daddy”. The man regarded himself as the child’s father. The man was involved in the child’s schooling.

How important was biology?

It is no surprise that the woman submitted that biology determined parentage by the man- and that therefore the man was not a parent, while the man submitted that intention to parent determined parentage- and that therefore he was a parent.

So far as the woman was concerned, because she had given birth, she was recognised under the Family Law Act 1975 (Cth), s.60H(2), which took up a provision of the Status of Children Act 1996 (NSW), s.14, by which the woman who gives birth is the mother, and the woman who produced the egg is not.

The issue of biology determined the difference between the majority and minority judgments. The majority (Aldridge and Christie JJ) determined that intention was the determinative factor, whereas the minority (Gill J) determined that biology was determinative. Their Honours were considering how to apply the High Court decision in Masson v Parsons (2019), a co-parenting case, in which that court held that who was a parent was a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.

The majority: Aldridge and Christie JJ

Their Honours stated:

“Once we recognise that legal status may be divorced from biological parentage (adoption, surrogacy, artificial conception) the question is whether the categories of persons who may be declared a legal parent are prescribed, or whether the decision of the High Court in Masson v Parsons may be read as extending the category of persons who may be declared a parent for the purpose of the Act to include those people who fall within Baroness Hale’s third category of “social and psychological parenthood”.”

The man was a parent, their Honours said, as the man, although lacking:

“a biological connection to the child … was found to have both formed the intention to parent prior to the birth of the child and to have in fact parented after the birth of the child. In addition, both the [woman] and [man] registered the child’s birth naming the [man] as a legal parent. Where both parties register the birth of a child and include their names on the registration of birth such that the birth certificate issues, naming them as the legal parents of the child, this creates a rebuttable presumption. It is a public declaration by those persons of the identity of the persons who are to be regarded as the child’s legal parents.”

Their Honours held that the Family Law Act did not impose a requirement of biological connection to the making of a declaration as to who was a parent. Therefore, when parentage is in issue, a trial judge is free to determine the matter of parentage having regard to the evidence as a whole.

As the High Court had done in Masson, the majority left open the possibility of three parents being recognised:

“[T]he broad definition of who may be a parent [under the Family Law Act 1975 (Cth)] does allow for the theoretical possibility that legal parent status could be conferred on more than two parents of a child.”

The minority: Gill J

His Honour considered it much more important that the man was not the biological father:

“The respondent in this case bears no biological relationship with the child. He did not provide his agreement to the artificial conception, nor at that stage did he in any manner offer his role as parent, or his ongoing support to any child produced as a result of the process…

It is no easy or obvious task to mark out the boundaries of the ordinary meaning of “parent”.

Although dictionary meanings may be of assistance in determining ordinary meaning, the parties in this case identified none, and to embark on a survey of them now risks unfairness to the parties who were not on notice to identify the strengths and weaknesses of the adoption of a dictionary meaning.

The scope of the ordinary meaning is to be considered in the light of the legislation as a whole, including in its treatment of the subject of “parent”.”

The man had submitted he was a parent because:

1. It was presumed he was a parent because he was named on the birth certificate as a parent.
2. He acted as a parent for the child, and fulfilled his parenting obligations.
3. The parties having lived together for nearly the first three years of the child’s life, that the child knew him as her father, and that he has remained engaged with the child’s care, welfare and development.
4. Consistent with Masson, a person could be a parent genetically, gestationally and psychologically. He asserted that he was psychologically a parent.

Gill J warned that it is necessary not to “conflate” the best interests of the child, and the separate consideration of who is a parent.

Further:

“It is no easy or obvious task to mark out the boundaries of the ordinary meaning of “parent”…

The Act distinguishes between people who are parents, and people who function as though they are parents.

Whilst these statutory features carry implications as to the scope of “parent,” they do not give clarity to the boundaries of the ordinary meaning.

Against this statutory background it may be observed that many persons who are parents fail to meet any of the responsibilities of being a parent, including those things described … as constituting a psychological parent. Parents can be involved or uninvolved. Parents can be beneficial or harmful. Parents can love and parents can abuse. Parents can behave self sacrificially and concern themselves with what is best for a child, and parents can be completely self-absorbed, concerned with their own rights and priorities.

It may also be observed that many persons who are not biologically parents, for example step-parents, grandparents and other persons concerned with the care, welfare and development of a child bring greater benefit to a child than those who are the biological parents. However, there is no mistaking those categories of person as parent despite the parental function that they discharge.

Neither failure in the role removes a person as a parent, nor does taking on the role make that person a parent. This points away from the ordinary meaning of parent as a consequence of the performance of what might be hoped to be the function of a parent, absent biological connection.

Further, “parent” carries with it meaning as to origin. It carries with it answers to the question of where a person comes from, which are answered differently than by reference to the family in which a person was raised. The importance of that meaning is reflected in the arrangements that are in place to enable adopted children to understand who their biological parents might be, despite the legal displacement of such persons as parents.

To enable the conferring of the status of parent, by one parent upon another person, even accompanied by good will and parent-like commitment on the part of the other, works a fundamental shift in what it means to be a parent.

In this case, the appellant invited the respondent to take on the status of parent, to which he agreed, and upon which he acted on an ongoing basis, functioning as a parent, in all of the circumstances as identified by the primary judge above. Together they engaged in parenting and recorded his name on the child’s birth certificate.”

All of this was not enough to convince Gill J that the man was a parent:

“I am unable to agree that the circumstances, in the absence of the biological connection that was present in Masson v Parsons, are of a sufficient degree to bring the respondent within the meaning of parent.”

Accordingly, the presumption that he was a parent because he was named on the birth certificate was rebutted.