Are you legally a parent? This may sound like an unusual question, but it is something that can have big implications for couples who use an artificial conception procedure (eg IVF or surrogacy) to have a family.
For de facto couples (lesbian and heterosexual) where the wife or female partner gives birth to a child as a result of an artificial conception procedure, the couple are legally considered to be the child's parents, provided that the other partner consented to the procedure. It does not matter whether both partners are female or whether either one of the couple is actually the child's biological parent.
By contrast, the law does not recognise sperm donors as fathers, despite any intentions to the contrary by the parties involved. This has obvious implications for both gay males and heterosexual couples who have a child via a surrogate.
In Australia, commercial surrogacy is prohibited. This means that it is illegal to pay or advertise for a surrogate. However, altruistic surrogacy - where the surrogate mother does not receive payment for her role as surrogate - is legal.
Under Australian law, when a child is born to a surrogate mother, the woman who gives birth and her partner are legally considered to be the child’s parents and they will be named on the child’s birth certificate.
According to Jodylee Bartal, Special Counsel in Lander & Rogers Family & Relationship Law team, where the birth occurs in Australia, the intended parents must ensure that they obtain a Substitute Parentage Order from the relevant court in their state to ensure that their names are included on the child’s birth certificate.
"We recommend that the intended parents also obtain Parenting Orders from the Family Court to confirm each of their status as a parent of their child," said Bartal, "This is to ensure that the intended parents are legally recognised as having parental responsibility for their child, which includes the right to make important decisions, such as in relation to schooling, health, medical care, religion, and even overseas travel."
Where the birth occurs outside Australia, no such option is available and the intended parents will need to apply for a Parental Responsibility Order from the Family Court. However, Bartal said that opinion is currently divided as to whether the Family Court has the power to make declarations of parentage in these circumstances.
"There are increasing options available to people, whether they are single or in married or de facto relationships, who want to start a family. The law in Australia is complex, differs from state to state, and includes conflicting presumptions of parentage with no clear hierarchy. Specialist legal advice should be obtained to ensure, as far as possible, that the intended parent's wishes match their legal status," she said.