Think of the following situation: let’s say that John agreed to be a sperm donor for Sally and Emily, a same-sex de facto couple. Sally undergoes an artificial conception procedure (using John’s sperm) and conceives a child. Who then are to be considered the child’s “parents”?
In artificial conception procedures, the court applies a “presumption of parentage” test, which does not discriminate between heterosexual or same-sex couples. In fact, the amendments were included to provide greater protection for, in particular, members of same-sex relationships engaging in artificial conception procedures.
In essence, that presumption is: if a child is born to a woman as a result of an artificial conception procedure while she is married or in a de facto relationship with another person – that “other person” (for the sake of this article let’s call them “the mother’s partner”) is presumed to be the intended parent, irrespective of whether they are male or female or biologically connected the child. The donor is not the intended parent, and therefore Sally and Emily were listed as the parents on the birth certificate.
I should clarify that by saying that for this “presumption” to apply, the mother, the mother’s partner and the donor must consent to the artificial conception procedure being carried out. If it does, the legislation clearly states that the child is not, a child of the donor, and therefore, the donor does not have legal status as a “parent.”
What if Sally did not have a partner, and so there was no presumption to apply? Even if Sally was not in a de facto relationship (same sex or otherwise) at the time, John (as a sperm donor) would still not be considered a parent of the child because Section 21 of the Status of Children Act (Qld) states that in artificial conception procedures, the man who produced the donor sperm has no rights or responsibilities for a child born as a result of the pregnancy.
In most cases, this in itself does not create any significant issues. In some circumstances however, problems do arise and the legislation does little to provide a clear path through that “grey area.”
Using the example above, let’s say that John would like to play a fatherly role and have a significant involvement in the child’s life. Sally and Emily however, decide that they would prefer if the child didn’t have a relationship with John. What options does John have?
Sally and Emily would both have legal status as “parents”. John does not. John may however, still apply to the court for parenting orders for time and/or communication with the child, pursuant to Section 65C of the Family Law Act provided that he can demonstrate that he is concerned with the care, welfare or development of the child.
It is important to note that the court recognises the need for a child to maintain a relationship with significant people in their lives (and not just their parents), provided of course, that it is in the child’s best interests. Whilst there is no hierarchy when it comes to parties the subject of parenting proceedings, John’s application is not as a parent of the child but rather as a concerned party, similar to an application made by a grandparent or uncle.
Whilst there is presently no requirement for parents-to-be or potential donors to seek legal advice prior to engaging in artificial conception procedures – it is something that is recommended, particularly if the arrangement puts you in that “grey area.”
If you (or someone you know) are looking at engaging in artificial conception procedures with a partner, or as a donor, please do not hesitate to contact us on 07 5591 5333 for advice on how this may apply to your particular circumstances.