Today’s advancements in assisted reproductive technology (including IVF treatment) have led to varied family structures, including children being born to same sex couples. As a result, diverse families are increasingly coming before the Family Court. Here, we look at how the Family Law Act defines a parent where artificial conception has occurred.

Who is a Parent when artificial conception has occurred?

In most circumstances, the birth mother and her husband or de facto partner will be regarded as the child’s parents, even if they have no genetic connection to the child. This is now also the case for same-sex lesbian couples. So, where a child is conceived in a lesbian de facto relationship using an artificial conception process, both the birth mother and her female partner are legally regarded as the parents of the child. The sperm donor is not a legal parent of the child.

If parties enter into a non-commercial surrogacy arrangement in the ACT which results in the birth of a child, the “substitute parents” (heterosexual or gay couples), and not the birth parent or parents, may be regarded as the legal parents of the child. There are, however, significant legal requirements which must be met to achieve this purpose.

What are the practical implications?

It is the parents of a child who have parental responsibility for a child unless and until that position is changed by a Court order. Having the status of a “parent” is also likely to affect a Court’s decision if a couple separate and cannot agree about post-separation parenting. One of the primary considerations for the Court is the benefit to a child of having a meaningful relationship with both parents.

What if I’m not a parent?

Even if you are not a legal parent of the child, you can apply for a parenting order if you satisfy the Court that you are a person concerned with the care, welfare and development of the child. A sperm donor may satisfy this test.