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Who is a parent?

Friday 5th of April 2019
By: Charlotte Geddes, Senior Associate & Accredited Family Law Specialist, Coote Family Lawyers

It went really smoothly and I am very happy with the result.  

My child was conceived via artificial insemination.  Is the sperm donor my child's father by law?

The question of who is a parent will be considered in more detail by the High Court of Australia in April this year.

The High Court will consider the question specifically in relation to children who are born as a result of artificial insemination.

Section 60H of the Family Law Act provides that if:

  • a child who is born as a result of an artificial conception procedure while the woman was married to or a de facto partner (i.e. the intended parent); and
  • the woman and intended parent consented to the carrying out of the procedure or under a prescribed Commonwealth or State law, the child is a child of the woman and of the intended parent; -
  • then the child is the child of the woman and the other intended parent; and
  • if a person other than the intended parent provided genetic material to enable the conception, the child is not a child of that person.

In the matter of Parsons and Anor & Masson, which is presently before the High Court, the father, who was a sperm donor, is seeking to be recognised as a legal parent of the child.

The child was conceived in 2006 using “informal artificial insemination”. The donor has been listed on the birth certificate and was actively involved in the child’s life.

The Family Court initially found that the man was the child’s father because they determined that the mother and her partner were not in a relationship “while” the artificial conception procedure occurred, instead commencing a de facto relationship sometime later. That decision was overturned on appeal because under NSW law, a donor is not presumed to be a father unless the parents were married or in a de facto relationship at the time of conception.The donor has appealed the matter to the High Court.

The High Court’s decision about whether or not the donor is the child’s father could have ramifications for other single parents and donors. It will be interesting to see whether the High Court will follow the approach of the trial judge, or the Court of Appeal.

 

If you would like further advice please contact Coote Family Lawyers on 9804 0035.




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