Artificial conception can raise complex questions about who is legally recognised as a child’s parents, with important implications for parenting arrangements and child support.
These issues often arise where donor conception is involved or where a child is born into a non-traditional family structure.
Section 60H of the Family Law Act 1975 (Cth) (“FLA”) tells us who the parents are of children born as a result of artificial conception.
Section 60H states that if a child is born to a woman as a result of an artificial conception procedure, and that woman was married to or was the de-facto partner of another person (the intended parent), and both consented to the procedure, then both are considered to be parents of the child.
Further, section 69R of the FLA deals with presumptions of parentage arising from registration at birth and states that if a person’s name is on the birth certificate, then they are presumed to be a parent.
However, presumptions of parentage can be challenged by proof on the balance of probabilities (section 69U).
If a biological father provided sperm on the basis that he intended to be involved as a parent, he may be classified as a parent. You can read more about sperm donors and parentage here.
Parentage testing
Where parentage is a genuine issue (it must be more than a general doubt), the Federal Circuit and Family Court of Australia can order parties to undergo parentage testing (section 69W/69X).
These issues cannot stand alone – they must be part of overall parenting proceedings. In other words, you can’t seek orders for testing and only then decide if you wish to seek parenting orders for the child/ren.
Orders for testing can be made for both parents, the child, and any other person if it assists in determining parentage. In relation to the child, however, the Court requires consent of a parent, or someone who has parental responsibility for the child.
People do not have to ‘consent’ to their own testing in the true sense. The Court can make orders irrespective of consent. However, if a person does refuse, no penalties can apply.
If they do refuse, the Court can draw any inferences against them that they see fit. While inferences can be drawn, these can be mitigated if the refusal was reasonable (such as for religious or cultural reasons).
Once the procedure is ordered, the Court can also make a declaration of parentage that is conclusive.
For child support purposes, the Child Support Assessment Act (section 5(1)) states that the “parents” of the child born from artificial insemination procedures are those recognised under section 60H of the FLA.
Guidance on parentage
Questions around parentage can be complex, particularly with artificial conception. Our Family Law team offers clear advice and ongoing support, ensuring you understand your rights and responsibilities.
