Relationships relevant to this Question
First and foremost, we need to point out that when asking the question of Who is the Parent – Donor Conception, we can only be talking about:
- A relationship between a woman and man; or
- A relationship between a woman and another woman; or
- A single woman.
This is because in a same sex relationship between two men, a surrogacy arrangement would be required.
There are various State and Territory Laws that make presumptions about this issue. There is also provision in the Family Law Act 1975 (Cth), a commonwealth law.
Presumptions where artificial insemination is used
The presumptions as to who is the parent of a child where artificial insemination is used are generally as follows;
- If a child is born to a woman as a result of an artificial insemination procedure whilst she was married, in a de facto relationship or a partner of another person (partner being male or female); AND
- The woman and her partner use donor genetic material; AND
- The woman, her partner and the donor consented to participation and use of the donor genetic material and the artificial insemination; THEN the child born through this process is the child of the woman and her partner (not the donor) regardless of the child’s genetic make up.
- If a child is born to a woman as a result of an artificial insemination process with no partner; AND
- The woman uses donor genetic material (egg or sperm or both); the child born through this process is the child of the woman (not the donor regardless of whether he and or she is known to the woman or not).
Recognition of Same Sex Female Couples on Birth Certificate from Birth
This means that same sex female couples can record themselves on a birth certificate as the parents of a child born of their relationship (from birth) – there is no need for a parentage order to be made just because they used donor sperm.
Simple Right? No
It all sounds simple – but in reality, it is very complex. Despite the law, relationships between donor’s and recipients can vary. Some individuals elect to obtain donor sperm from overseas, frozen, others are on a first name basis with their donor. The Court has previously made a finding that despite not being in a relationship, a sperm donor, was in fact, the parent of a child because of the intentions that both he and the birth mother had at the time of conception. That is, he always intended, by providing his sperm, to be a parent of the child.
