Legal Parentage

Who are the legal parents of a child born as a result of assisted reproduction?

State and Territory Laws

All Australian states and territories have laws that address the question of legal parentage of children born as a result of using ART. 1

Birth mother – is the mother of the child

Each state and territory provides that the woman who gives birth to a child born as a result of ART is the ‘mother’ of that child.

Husband or Male Partner is the father

When a married woman or a woman in a de facto relationship with a man becomes pregnant as a result of assisted reproduction her partner is presumed to be the father, provided he consented to the procedure.

Same sex partner of a woman is a legal parent

All Australian jurisdictions also presume the same-sex partner of a birth mother who has used ART to conceive is a legal parent of a child born. 2

All jurisdictions provide for the same-sex co-parent of a child to be entered on the child’s birth certificate. The language that is used on birth certificates may vary.

For example, in Western Australia the partners may register as ‘mother’ and ‘parent’; ‘mother’ and ‘mother’; or ‘parent’ and ‘parent’. In the ACT a person may be registered as ‘mother’, ‘father’ or ‘parent’.

Donors (eggs, sperm, or embryos)

In all states and territories, when a woman becomes pregnant in consequence of an artificial fertilisation procedure using a donated ovum, the donor is not the mother of the child.

When donated sperm is used, the donor is presumed not to be the father of the child.

Similarly, when embryo donation occurs, the woman who gives birth to the child is the mother, her partner is the father or ‘parent’, and the donors are not the legal parents.

State legislation in New South Wales, Victoria, South Australia, Tasmania, Western Australia and the Australian Capital Territory, also makes it clear that a sperm donor (whether known or unknown) is not a parent whether the woman who gives birth is partnered or not.

The laws generally stipulate that donors have ‘no rights’ and ‘no responsibilities’ over the resulting child.

Donors are not recorded on the birth certificate. The birth certificate therefore does not necessarily show biological heritage, but rather includes the people that parent the child.

Uncertainty

Note: in some jurisdictions there is some uncertainty about legal parentage in some circumstances. For example, in South Australia, legal parentage may not be clear when a women has self-inseminated at home using donor sperm. The Northern Territory and South Australia may also not recognise the male co-parent in a gay relationship. 3

Federal Laws

The Law

The Family Law Act 1975 (Cth) is relevant to determining legal parentage at the commonwealth level. This is important, for example, when determining applications for parentage, parenting orders, child support, and who may have contact with a child.

Women who are married or who have a de facto partner

The Family Law Act provides that when a child is born to a woman who has undergone an ‘artificial conception procedure’ while the woman is either married, or has a de facto partner, both the woman and her partner will be considered the child’s parents provided the partner (‘intended parent’) has consented. 4

Consent is presumed to have been given unless it is proven on the balance of probabilities that the person did not consent.

The Use of a Donor

Married or defacto relationship

The use of donor gametes does not affect the recognition of the woman and her partner as parents under the Act albeit that one or both may not be biologically related to the resulting child. The woman’s partner may be either male or female. 5

Single woman

However, the Act is silent on the parental status of donors in circumstances of a single woman using ART. This had led to conflicting views in the family law court about the whether a donor may be considered a parent under the Family Law Act in such circumstances. For example, there has been some emphasis on the ‘intent’ to parent in arrangements where a known donor has been used by a single woman and a relationship with the child has been established.

For detailed (although complex) discussion of these issues refer to the Family Law Council, Report on Parentage and the Family Law Act, December 2013. (Specifically see pages 37-47). 6

People who are concerned about their personal situation should seek independent legal advice from a Family Law expert prior to entering into any arrangement.

Notes:

  1. See for exact provisions: Status of Children Act 1996 (NSW) s 14; Status of Children Act 1974 (Vic), ss 10C-10F; Family Relationship Act 1975 (SA), s 10C; Artificial Conception Act 1985 (WA), ss 5-7; Parentage Act 2004 (ACT), s11; Status of Children Act 1978 (Qld) ss 15–17; Status of Children Act 1974 (Tas) s 10C.
  2. Status of Children Act 1996 (NSW), s 14(1A); Status of Children Act 1974 (Vic), s 13; Family Relationship Act 1975 (SA), s 10C; Artificial Conception Act 1985 (WA), s 6A; Status of Children Act (NT), s 5DA; Status of Children Act (Qld), s 19C-19E; Parentage Act 2004 (ACT), s 11(4); Status of Children Act 1974 (Tas), s 10C(1A).
  3. Sonia Allan and Meredith Blake, The Patient and Practitioner: Health Law and Ethics in Australia (2014) Lexis Nexis
  4. Family Law Act 1975 (Cth), s 60H(1).
  5. Family Law Act 1975 (Cth), s 60H(2) and 60H(3).
  6. Family Law Council, Report on Parentage and the Family Law Act, December 2013. (Specifically see pages 37-47).