AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
consented to the use of the material in the artificial conception procedure; or • under a prescribed law of the Commonwealth or the State, the child was a child of the birth mother and the other intended parent. If a person other than the birth mother and the other intended parent (such as a sperm or egg donor) pro - vides genetic material, the child is not the child of the provider of the genetic material. Grandparents or any other person who is concerned about the care, welfare or development of a child can also apply for a parenting order that confers either joint decision-making or sole decision-making on that person. If the Court is considering making a parenting order (which includes the allocation of parental responsibil - ity) by consent in favour of a non-parent who is not a parent, grandparent or relative of the child, the Court must not make the order until the parties have attend - ed a conference with a family consultant or until the Court is satisfied that there are circumstances that make it appropriate for the proposed order to be made without attending with a family consultant. 1.5 Relevance of Marriage at Point of Conception or Birth A child’s biological parents automatically have paren - tal responsibility for the child after the child has been born. The relationship of the biological parents, includ - ing whether they are married, separated or have never been in a relationship, is not relevant to the conferral of parental responsibility following the birth of a child. Marriage and de facto relationships are relevant at the point of conception in relation to artificial conception procedures (as outlined in 1.4 Requirements for Non- Genetic Parents ) and in relation to presumptions of parentage that the Court may apply in determining who is a child’s parent in the absence of direct evi - dence. For example: • a child born to a woman while she is married is presumed to be a child of the woman and her husband; and
• a child born to a woman between 20 weeks and 44 weeks after the woman cohabited with a man to whom she was not married is presumed to be a child of said man. 1.6 Same-Sex Relationships Please see 1.4 Requirements for Non-Genetic Par- ents regarding the process of obtaining parental responsibility for parents in a same-sex relationship. Provided those requirements are met, the process of obtaining parental responsibility is intended to be the same as for parents in a heterosexual relationship. Once parental responsibility has been conferred at birth, each parent has parental responsibility, unless the Court makes other orders. No preference is giv - en to a biological parent under the Family Law Act, mainly because the Court considers the child’s best interests as a paramount consideration rather than the circumstances of the child’s conception or the gender of the child’s parents. A provider of genetic material, such as a sperm donor, who has given consent to the use of their genetic material has no automatic parental responsibility for a child born as a result of an artificial conception pro - cedure. However, a sperm donor may still apply to the Court for parenting orders, including declarations as to par - entage, if the donor is actively involved in the child’s life, fulfils the roles and responsibilities of a parent, and is perceived by the child as a parent or “dad”. It is unlikely, however, that a sperm donor could be included on a child’s birth certificate if the birth mother and the other intended parent were already named. This is because birth certificates in Australia are cur - rently restricted to recording only two parents. A same-sex couple using a surrogate to conceive a child are required to apply to a prescribed Court for the purpose of transferring legal parentage from the sur - rogate mother and her spouse (if any) to the intended parents. Once the order is made, the intended parents will be regarded as the legal parents of the child and will assume parental responsibility. All states in Aus - tralia, with the exception of Western Australia, permit access to surrogacy for same-sex couples and single
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