AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
no requirement to establish a biological connection to the child in order to seek a declaration of parentage pursuant to Section 69VA. As set out in 1.1 Parental Responsibility , a birth father’s parental responsibility can be removed, altered or diminished by an order made by a state or federal court. 1.4 Requirements for Non-Genetic Parents Non-genetic parents may include: • a parent of a child born through an artificial con - ception procedure; • a parent of a child born through a surrogacy arrangement; • a step-parent of a child; or • a parent who has adopted a child (see 1.7 Adop- tion ). Children Born Via an Artificial Conception Procedure Where a child is born as a result of an artificial con - ception procedure, it will be necessary to consider the provisions of the status of children legislation in the relevant state or territory, which will determine who is a parent in certain situations. Such legislation includes both rebuttable and irrebuttable presumptions of par - entage, including presumptions that relate to children born as a result of artificial conception procedures. By way of example, in NSW, if a married woman becomes pregnant by means of a fertilisation proce - dure using any sperm obtained from a man who is not her husband, her husband is still presumed to be the parent of that child if he consented to the procedure. This presumption is irrebuttable. Where a person is a parent under a prescribed state or territory law, this will be recognised under the Family Law Act. Under the Family Law Act, if a woman was either mar - ried to or a de facto partner of another person at the time she underwent an artificial conception procedure and the procedure was carried out with the consent of the other person, then the child born as a result of the procedure is the child of the woman and the other
person. This is the case even where neither person is biologically related to the child. Children Born Under Surrogacy Arrangements There is currently no uniform surrogacy law in Aus - tralia; surrogacy is regulated under the laws of each state or territory. Depending on the state in which the intended parents live, if the baby was born as a result of a surrogacy arrangement, the intended parents would need to apply to the Supreme Court in their state or territory for a parentage order. In order to apply for a parentage order, the requirements of the relevant state or territory law would need to be complied with. Where a state or territory court has made a parentage order under a prescribed law, this will be recognised under the Family Law Act. Step-Parents A step-parent of a child will not have parental respon - sibility for the child, unless they seek a parenting order allocating them sole or joint decision-making respon - sibility for the child. 1.5 Relevance of Marriage at Point of Conception or Birth Some of the presumptions of parentage (at both a state and federal level) centre around the relationships that existed between the relevant adults at the time of the child’s conception. For example: • If a child is born to a woman while she is married, the child is presumed to be the child of the woman and her husband. • If a child is born to a woman and said woman cohabited at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of the child with a man to whom she was not married, then the child is presumed to be the child of that man. • If a child is born to a woman as a result of an arti - ficial conception procedure while she was married to, or a de facto partner of, another person (the other intended parent) and either (i) the woman, other intended parent and any other person who provided the genetic material consented, or (ii)
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