Artificial conception procedures have been around for decades, whether by donor insemination or in vitro fertilization involving married or de facto couples, or in respect of surrogacy arrangements.
The law has not always been up to date with developments within society in dealing with who is a parent in cases where children are conceived by an artificial conception procedure.
Section 60H of the Family Law Act provides that where a woman conceives a child by way of an artificial conception procedure, she will be deemed the child’s parent. It does not matter if the child does not have that woman’s DNA. If that woman was in a marriage or de facto relationship at the time of conception, including the same sex de facto relationship, and the artificial conception procedure was carried out with her married or de facto partner’s consent, then her marriage with de facto partner would also be deemed the parent of the child. It also does not matter that the woman’s marriage or de facto partner did not provide any DNA for the child.
A person who provides the genetic material for a child, whether a sperm donation or an ovum donation, and who is not in a marriage or de facto relationship with the birth mother, will not be deemed the parent of the child under Australian Family Law. However, the position in relation to rights of inheritance may be different.
The issue of parentage can have significant consequences depending upon what arrangements have been entered into at the time of conception. For instance, where there is a surrogacy arrangement under which the child is surrendered into the care of intended parents, then the parents will need to seek a Court order to have parentage or parental responsibility transferred to them or conferred upon them.
Contact our Managing Partner, Dominic Wilson on (02) 8268 4000 or by email at firstname.lastname@example.org for friendly professional assistance. Dominic will refer you to our Accredited Specialist Family Lawyer.