Under section 60H of the Family Law Act, if a child is conceived via IVF using a sperm donor and the pregnant women's marital partner consents to that procedure, then the martial partner is, at law, a legal parent of that child (even in the absence of a biological connection). However, if the parties are not married, the non-biological parent would then need to prove that they were in a de-facto relationship at the time of the IVF procedure (as well as consenting to the procedure) to be considered a legal parent of the child.
This meant that, prior to same-sex marriage legislation, same-sex couples who conceived children via IVF did not have the presumption of parentage through marriage that passed to married heterosexual couples (and instead relied on de facto provisions of the Family Law Act). Marriage eliminates this onus entirely as same-sex couples who are married will no longer have to prove that their relationship existed to be considered the child's parent.
At this stage, the presumption of parentage concerns IVF pregnancies only, and does not pass to children conceived via surrogacy agreements (which are dealt with separately under the legislation of the state that the parties reside in). This means that male same-sex couples do not have the same presumption of parentage for IVF children as same-sex female couples (as there is currently no legislation that severs the parental rights of the woman who gave birth to the child without further involvement of the Court).
However, the Family Law Act provides an entitlement for any interested party (including males in same-sex relationships) to apply for parenting orders relating to a child (see section 65C of the Family Law Act), and the Court is able to consider the family dynamics and circumstances of each individual case prior to determining who the child resides with, and which adult figures in the child's life should hold parental responsibility for the child.
If you or your partner require any assistance with regard to Family Law, or have concerns about how the recent legal amendments may impact your family, please do not hesitate to contact one of our Family Law Accredited Specialists.
