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