It is becoming increasingly common for single women to turn to IVF to achieve their desire to have a child of their own now assisted reproduction is readily available. Some of these women wish to be able to raise their child as a single parent without any involvement of the sperm donor in the parenting of that child.

The States and Territories have now had laws in place for a number of years which introduced presumptions of parentage which flow from the use of fertilization procedures.

One such presumption is that if a woman undergoes a fertilization procedure while married or in a de facto relationship (including same sex relationship), the woman and the other party to that relationship are presumed to be the parents of the child so conceived. Conversantly, another presumption is that if a woman becomes pregnant using sperm of a man who is not her husband (or de facto partner), that man (ie the sperm donor) is presumed by that State or Territory law not to be the father of the child. This presumption could well have led some single women to believe that they were entitled to raise a child conceived through IVF as sole parents.

However, there are circumstances where provisions of the Cwlth Family Law Act 1975 (FLA) overrides the operation of such State and Territory laws due to inconsistency with the FLA.

A recent decision handed down by the Family Court in Melbourne puts the above single woman parentage presumption under the spotlight. In the case of Groth & Banks , the mother of a child aged about 16 months at the date of hearing was faced with an application by the sperm donor for an order that he have equal shared parental responsibility for the child and also orders that the child spend time with him.

The mother was not married or in a defacto relationship with the donor or with any other person when she conceived the child by way of sperm donation. The donor was known to her and they had agreed to raise the child conceived of the sperm donation “as separated parents”.

The mother’s lawyers argued that by virtue of the presumption set out in the Victorian Status of Children Act 1974 the sperm donor was presumed not to be the father of the child and that presumption was irrebuttable.

The mother opposed the father having any right to make decisions about the child, even though she was not opposed to the child spending time with the donor. This however was not relevant to the specific legal questions enlivened by the inter-play between Commonwealth and State legislation under scrutiny in this case.

In this case the mother argued she was entitled by law raise her child as a single parent. This view was found to be legally incorrect and she lost the case.

The donor relied on the FLA and argued that the word “parent” is not exhaustively defined in that Act, and that the language of the Act envisages that there are two parents being the biological progenitors of the child, unless the biological progenitor is “displaced” as parent by express provisions in that Act. For example under the FLA, the biological parents are displaced by adoptive parents and surrogate parents. Where a couple conceive a child using artificial conception the presumption is also displaced in favour of that couple being the parents.

The Court examined all of the relevant provisions of the FLA, including s60H which deals specifically with children born as a result of artificial conception procedures, but concluded there were no provisions in the FLA that displaced the sperm donor in a case where the mother was single at the time of the procedure as a “parent”.

The Court made it very clear that the interpretation of “parent” in the FLA requires each case to be determined on its particular facts in cases not covered by the specific provisions.

The Court also effectively concluded that under the FLA “biology is the determining factor unless specifically excluded by law…”.

As there was an inconsistency between the Victorian State law relied on by the mother and the FLA, then to the extent of that inconsistency, the State legislation was invalid, and the provisions of the FLA prevailed. Therefore, as there is no provision in the FLA that excluded the donor from the meaning of the word “parent”, both the mother and the donor were parents of the child.

The Court ordered that the donor and the mother have equal shared parental responsibility for the child. Other orders were made for the child to spend time with the donor parent.

It is not enough to be aware of the terms of your own State or Territory legislation, but there must also be an understanding of the impact on the legislation of the Cwlth FLA and the effect of any inconsistency between State and Cwlth laws.

This case is a timely reminder that the law relating to parenting of children born by assisted conception can be quite complex and there are traps for the unwary.

Single mothers need to be alert to the potential rights of “known” sperm donors to be regarded as a parent of the child under the Family Law Act.

For couples (as opposed to single women) conceiving a child in this way, while the donor will not be a “parent”, this does not exclude the possibility of parenting orders being made in the donor’s favour. There has been some media coverage about a child being able to have three “parents”. This does not accord with the legal position but is consistent with a child having a parent/child relationship with 3 adults or more.

Where the child is conceived by a couple, the donor does not have the legal status of parent under the FLA but may be regarded as a person concerned with the care, welfare and development of the child, and hence able to apply for orders about parenting matters . A Court would usually only be persuaded to make those orders if the donor has usually established a relationship with the child before the separation of the child’s parents and the Court determines it is in the best interest of the child for the relationship with the donor parent to be maintained in such cases. Such cases are decided the same way as all other parenting cases under the FLA with most important consideration being the best interests of the child or children.

If you are considering assisted conception or have a child conceived by assisted conception, you should speak to a lawyer about the potential rights of the donor to seek parenting orders. Our team specializes in assisted conception parenting matters and can provide you with individual and specific advice relevant to your situation.

Lois Clifford is a partner of Dobinson Davey Clifford Simpson, 18 Kendall Lane, New Acton, Canberra ACT and can be contacted on (02) 6212 7600.