Parentage disputes from IVF
When a child is conceived through IVF or donor conception, who the law recognises as the parent is not always as obvious as people expect. Most of the time the answer is clear. But where a donor was known, where conception happened outside a clinic, or where something went wrong in the process, questions about legal parentage can arise, and they matter for parenting, decision-making and financial responsibility.
If you are facing uncertainty about who the legal parent of a child is after assisted conception, this page explains how Australian law approaches the question and where legal advice can help.
Who is the legal parent after IVF?
Under Australian law it usually depends on how conception happened. Section 60H of the Family Law Act 1975 (Cth) sets out presumptions about parentage where a child is born through an artificial conception procedure. In general terms, where a woman conceives through an artificial conception procedure while married or in a de facto relationship, and she, her partner and any donor all consented, the child is the child of the woman and her partner, and a donor is not a legal parent, regardless of the child’s genetic make-up.
Where there is no partner and donor material is used, the child is the child of the woman, and the donor is not a legal parent. These presumptions are what make donor conception through a clinic relatively straightforward. The complications tend to arise outside that clear path.
When do parentage disputes arise?
Contact UsDisputes tend to arise where the facts do not fit neatly within the presumptions. The High Court’s decision in Masson v Parsons [2019] HCA 21 is the clearest example. There, a man who provided his sperm for a child conceived through artificial insemination was found to be a legal parent, because he had been involved as a parent from the outset, was named on the birth certificate, and supported and cared for the child. The Court held that whether someone is a parent is a question of fact and degree, judged on the ordinary meaning of “parent” and the circumstances of each case.
Common situations where questions arise include known-donor arrangements, home insemination rather than clinic treatment, differing expectations between a donor and the recipient parents, and, rarely, errors in the clinical process. In all of these, a court’s focus is ultimately on the best interests of the child.
How we help
We advise on parentage questions arising from IVF and donor conception, including:
- Explaining how the Family Law Act presumptions apply to your situation
- Advising donors and recipients on their legal status and responsibilities
- Helping avoid disputes before conception through a clear donor agreement
- Advising where a dispute has already arisen about parentage or parenting arrangements
Consultations run by Zoom, phone or in person. Book a time or use the contact page.
About Katie
Katie founded The Family Village after years of IVF and a five-year journey to find a surrogate for her own family. Her son Vinnie was born via surrogacy in 2022. She has 19 years of legal experience and is a member of the Queensland Law Society.
Katie’s own surrogate, Sally, now works alongside her at The Family Village, supporting other intended parents and surrogates through the same process they have both been through themselves.
Contact UsQuestions we get asked
Usually not, where conception happens through a licensed fertility clinic and the requirements of the Family Law Act are met. But as Masson v Parsons showed, a known donor who is involved as a parent can, in some circumstances, be found to be a legal parent. The facts matter.
No. A donor agreement is not legally binding and cannot override the law. But it is valuable evidence of what everyone intended at the time of conception, which a court can take into account. See our page on donor agreements.
This is legally uncharted territory in Australia. Where something has gone wrong clinically, parentage and the child’s best interests are decided on the specific facts, and early legal advice is important.
The family law courts, applying the Family Law Act and focusing on the best interests of the child.
Get in touch
If you are unsure about legal parentage after IVF or donor conception, or a dispute has arisen, talk to us. Getting advice early, ideally before conception, is the best way to protect everyone involved.
Book an appointmentOr visit our contact page
