The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 283 she may be required to provide information about the father and may be refused assistance if there are not good reasons for her not seeking child support from the child’s father (see Chapter 4.2: Parental responsibilities and child support). For telephone support, information and referral, contact the Council of Single Mothers and their Children (www.csmc.org.au) . Children conceived with reproductive assistance Artificial insemination Section 7 of the ART Act prohibits assisted reproductive treatment and section 8 of the ART Act prohibits insemination (known as ‘artificial insemination’) by anyone other than a doctor or a person under the supervision and direction of a doctor, and for assisted reproductive treatment, in any place other than a hospital or registered clinic and providing divisions 2, 3 and 4 of the ART Act have been met. These requirements include consent, unlikelihood of pregnancy other than by treatment procedure, a child protection order check and counselling. The penalty is 480 penalty units (see ‘A note about penalty units’ at the start of this book) or four years’ imprisonment, or both. Section 8 does not apply to a woman or her partner assisting in self-insemination (see, for example, McAuley v Salberg [2020] FCCA 1538, discussed above). Under section 4 of the FL Act, an ‘artificial conception procedure’ includes artificial insemination and the implantation of an embryo in a woman’s body. This definition is relied on in section 60H. Parenting presumptions and AI/IVF In the case of married heterosexual couples using artificial insemination ( AI ) and in-vitro fertilisation ( IVF ), the SoC Act (s 10C) provides that the husband is presumed to be the father and to have caused the pregnancy and the donor is irrebuttably (i.e. not open to question) presumed not to have caused the pregnancy. Similarly, under section 10E, there is an irrebuttable presumption that a woman who produces a child by using another woman’s ovum is irrebuttably presumed to be the mother, and the woman who produced the ovum is irrebuttably presumed not to be the mother. As discussed above, the amended SoC Act brings same-sex female partners in line with heterosexual couples; where donor semen is used to conceive a child and the partner (also defined as the ‘non-birth mother’ (s 2)) consented to the treatment, she is irrefutably presumed to be the parent and the donor is irrefutably presumed not to be the parent, and that this prevails over any conflict. Similarly, the amended section 60H(1) of the FL Act conclusively presumes the partner (‘the intended parent’) to be the parent of a child born through an assisted treatment procedure. There has always been a presumption against parentage for sperm donors; however, a number of Family Court decisions have resulted in donors being granted rights. In Re Patrick [2002] FamCA 193, a case concerning contact between a sperm donor and the child of a lesbian couple, Justice Guest granted the sperm donor contact rights and the right to play a role in the child’s life akin to that of a post-separation father. The Family Court revisited the position of a sperm donor in R and J [2006] FamCA 1398 (also in H and J and D , an ex tempore judgment), making orders for regular contact between the donor and the child. The application was brought by the donor seeking increasing overnight contact with the child and that the biological mother be ordered to inform the child of the factual identity of the donor as his ‘biological father’. In Oxbourne and Ewans [2020] FamCA 125, the child’s mothers (biological mother and her partner) were found guilty of breaching the court orders made at first instance. These orders provided that the child was to spend time with his biological father (sperm donor) and was to speak with him over the phone and on Skype. Not only was the sperm donor granted contact rights in this matter, but those rights were enforced by the court. Breaches of the orders by the designated parents were penalised. In the recent decision of Griffin and Laidley [2021] FCCA 1515, it was found that the applicant sperm donor was a parent based on the specific circumstances of the case and was, therefore, entitled to seek parenting orders. The court adopted the test used in Masson v Parsons and found that the applicant should properly be regarded to be a parent. Relevant considerations were the applicant’s level of involvement in the pregnancy, and the joint intention of the parties that he would play a parenting role in the life of the child.