Having a child through artificial insemination attracts an array of unique uncertainties that are not experienced by individuals who biologically conceive. One such uncertainty is, who are the parents to the child?
What does the law say?
This question has attempted to be clarified by the Family Law Act at section 60H (“Section 60H”). Section 60H states that there are two criteria that must be met to determine parentage for children born as a result of artificial insemination:
1. The child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (‘the other intended parent’); and
2A. The child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (‘the other intended parent’);
OR
2B. There is a defined law that says the child is the child of the woman and of the other intended parent.
Criterion 2B above can be relied on in the alternative to 2A. However, for the purposes of this article, we are looking at only 1 and 2A.
Issue: what about to-be mothers who are also in a de facto relationship?
A concerning problem with Section 60H, is that it seems to suggest that a woman who wants to conceive and be the sole parent of the child, cannot be in a de facto relationship at the time of conceiving as to do otherwise poses a risk that their partner may be identified as the ‘other intended parent’. This issue was exemplified in the recent case of Sofia & Treacy [2022] FedCFamC1F 777. Russell Kennedy represented the birth mother using the pseudonym ‘Ms Treacy’.
In this case, Ms Treacy always had a dream of becoming a mother. When Ms Treacy was unable to conceive through conventional means, she turned to artificial reproductive treatment by looking for donors. Ms Treacy had been doing this for some years before she started a same sex relationship with an individual, Sofia. Ms Treacy and Sofia had been in a relationship for about 16 months when Ms Treacy fell pregnant through a home artificial insemination procedure. Sofia assisted Ms Treacy with the insemination as a supportive girlfriend but not as the intended parent.
Ms Treacy and Sofia did not live together during their relationship and separated when the child was 4 months old. Following separation, Sofia commenced proceedings in the Federal Circuit and Family Court of Australia seeking Orders to have equal shared responsibility for the child and to spend time with the child on the basis that she was a parent of the child.
Sofia’s Application meant the Court was tasked with determining whether Sofia was in fact a legal parent. Ultimately the Court found that the necessary requirements to define the relationship between Ms Treacy and Sofia as a de facto couple were not met. As Sofia could not establish that she and Ms Treacy were in a de facto relationship, the first criteria of Section 60H was not satisfied and the Court found that Sofia is not an intended parent.
The issue this case exemplified, however, was that had a de facto relationship been found, Sofia may have been determined as the intended parent. This is because Ms Treacy had consented to Sofia performing an assistive role with the insemination. In the absence of a definition of consent in Section 60H, and little to no case law on this sort of circumstance, this may have been viewed as sufficient to meet the conditions of the second criteria in Section 60H.
The issue of consent was raised during the trial with Ms Treacy saying that her consent to the carrying out of the procedure was conditional on her being the sole parent for any child conceived. However, because the de facto criteria were not met, the Court abstained from providing further clarification on this matter.
It is yet to be seen whether the definition of consent in the context of Section 60H will be examined in the future. Nevertheless, the overarching takeaway from this case, is that there is much work to be done to adapt the Family Law Act to the plethora of unique circumstances that may arise from the modern family, including who the parents are to children born from artificial conception procedures.
How we can help
If you or someone you know is in a de facto relationship or your de facto relationship has ended, Russell Kennedy Lawyers can provide you with advice to protect your entitlements and to assist you with a property settlement or parenting arrangements.
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