Charlotte agrees that Mary-Ann and David will be the child’s parents for all intents and purposes but that she will have a role in the child’s life, though more in the nature of an aunt.
Charlotte is impregnated with David’s sperm by artificial insemination and in time gives birth to a healthy baby boy whom Mary-Ann and David call Benjamin. For a time, everything goes smoothly and Mary-Ann and David are delighted being parents to Benjamin and having their family unit completed. Charlotte visits with Mary-Ann most afternoons to see Benjamin and also looks after him on weekends when Mary-Ann and David have some time out as a couple.
But where will our three characters be if something happens along to disrupt this settled routine? Mary-Ann may find that her mother who lives in Perth is gravely ill and that she and David need to relocate to Perth to care for her. Where does that leave Charlotte? She is obviously not going to be able to spend any meaningful time on a regular basis with Benjamin if he is at such a distance from her.
Can Charlotte be Declared to be a Parent of Benjamin?
The simple answer is yes if no parentage order has been made for the transfer of parentage of Benjamin under section 22 of the Status of Children Act 1978 (QLD) (SOCA). Parentage of a child is a fact. If there was any dispute as to maternity, biological evidence and evidence of those present at the birth will be available to prove that Charlotte is a parent of Benjamin.
Charlotte may apply under section 10(1) SOCA or under section 69VA of the Family Law Act 1975 (FLA) for a declaration of parentage if her parentage is disputed. Such a declaration if made under FLA is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
Who Would be the Legal Parents of Benjamin?
Charlotte and David are Benjamin’s legal parents where David took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care.
If David’s name is entered in a register of births or a register of parentage information as being a parent of Benjamin then, under section 69R of the Family Law Act 1975 (FLA), a presumption of parentage in favour of David will apply where the register was kept under the laws of the Commonwealth, a state, territory or a prescribed jurisdiction. However, that presumption is rebuttable by proof on the balance of probabilities (s.69U(1) FLA).
However, under section 60H FLA:
- If Charlotte was married or living in a de facto relationship at the time that the artificial conception procedure took place, then, provided that that procedure was carried out either with the consent of Charlotte and her partner, or pursuant to a prescribed law of the Commonwealth, a state or a territory, Benjamin is the child of Charlotte and her partner, Benjamin will be presumed to be the child of both Charlotte and her partner regardless of whether Benjamin is biologically their child and Benjamin is not the child of any person such as David, providing genetic material (s. 60H(1)(4)). Let’s assume here that Charlotte is not married or in a de facto relationship so that s. 60H(1)(4) does not apply.
- Where Benjamin is born to Charlotte as a result of the carrying out of an artificial conception procedure and under the laws of the Commonwealth, a state or territory, Benjamin is the child of a man, then whether or not the child is biologically his child, the child is the child of that man for the purposes of FLA (s. 60H(3)). QLD law does not provide for Benjamin being the child of David. Under section 19C(2) SOCA or section 21 SOCA, the man who produced semen used in a fertilisation procedure or artificial insemination of a woman respectively has no rights or liabilities relating to a child born as a result of the pregnancy for which the semen was used unless, in the case of an artificial insemination under section 21, at any time he becomes the husband of the child’s mother.
Where there is a conflict between presumptions arising under Part VII, Div 12 FLA, the presumption that prevails in proceedings before the Court is that which appears to the court to be more likely (s. 69U(2)).
Section 60HB(1) provides that if a court has made an order under a prescribed law of a State or Territory to the effect that a child is the child of one or more persons or each of one or more persons is a parent of a child, then for the purposes of FLA, the child is the child of each of those persons.
Whilst section 22 of the Surrogacy Act 2010 (QLD) (SA) provides that the Court may make a parentage order for the transfer of parentage of a child to the applicant or joint applicants, the Court may do so only if it is satisfied of all matters set out in section 22 (2) of SA. Those matters include that the surrogacy arrangement is in writing signed by the birth mother, the birth mother’s spouse if any and the applicant/joint applicants and that those persons as well as another birth parent (if any) consent to the making of the parentage order at the time of the hearing.
We have assumed that Charlotte will not provide consent to the transfer of parentage. In that case, there is no prospect of a parentage order under section 22 of SA being made even if all other matters set out in section 22(2) SA were satisfied.
However, it is important to realise that FLA does not provide an exclusive definition of parent so that it is not a closed category but allows for a broader approach in determining parentage.
In the recent decision of the Family Court of Australia in Masson & Parsons and Anor  FamCA 789, Cleary J found that the biological father of a child who was conceived by artificial insemination conducted privately using donor sperm of the father, was a legal parent of the child.
Cleary J said that for the biological father to be a legal parent he must have provided his genetic material for the express purpose of fathering a child he expected to parent and to have been unaware of the de facto relationship that the biological mother asserted existed for her with another woman at the time of conception.
Cleary J said that the meaning of “parent” ranges across biology, law and factual reality; that it was open to assume that a biological progenitor is a parent unless an order of a Court says otherwise, as for example when there is a legal adoption or surrogacy. Cleary J said that the intention and belief of a party to an artificial insemination process” is a factor to be taken into account. In Masson & Parsons, it was found that the biological father took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care and that absent other legal disqualifying factors, he was a parent in the ordinary meaning of the word . Cleary J agreed with Cronin J in Groth & Banks  FamCA 430 that section 60H FLA should be interpreted as expanding rather than restricting the categories of people who can be parents. This was considered consistent with the absence of an exhaustive definition of the term “parent” in section 4 FLA.
Get in Touch
We prefer to meet you in person but are happy to have a telephone consultation if this suits you. At an initial consultation, we will take some particulars from you so that we can provide you with advice about the likely outcome at family law for your particular circumstances and estimated costs if you wish to proceed further.