Where a child is born to a de facto or married couple by way of artificial conception reliant upon a third party donor, the question of parentage becomes inherently more complex. Biologically the child is the product of the third party donor, and one of the intended parents, but the clear intention of the process is to render both intended parents, exactly that, parents of the conceived child.  The law now recognizes this intention in rendering the intended parents `parents’ at law, but this does not necessarily prohibit a third party donor from securing Orders of a parental nature.

The potential complexity (and heartbreak) of these arrangements is no more evident than in Reiby & Meadowbank & Anor [2013] FCCA 2040.

To use a recent Federal Circuit case as an example, a child (X) was born to the Respondents (Respondent 1 & 2), by artificial conception. The child was aged 2 at the date of the decision of Judge Small. The Applicant provided genetic material for use during the artificial conception process.  The Respondents were in a de facto lesbian relationship at the time of the procedure, and the Applicant consented to the procedure.

The Applicant and Respondents had discussed, in general terms, the conception and arrangements for the child prior to the procedure on multiple occasions prior to the birth of X. However it was not until 8 months after the procedure had been undertaken that the parties attended the offices of a lawyer. After the meeting, the Applicant had his solicitors draft a Minute of Consent Order and a Statement of Agreed Facts, with the ultimate goal of applying to the Court for Parenting Orders following the birth of the child. This however surprised the Respondents, as they believed that no solid agreement had been reached at the meeting.

Not long after this, the Applicant filed an Initiating Application with the Court. Throughout the child’s early months X still spent regular and frequent time with the Applicant at the Respondents’ home, and on occasion at his home.

In the proceedings, the Applicant sought time with X. The Respondents sought that they share parental responsibility of the child (to the exclusion of the Applicant), and that the time that the Applicant can spend with X be limited, and that the Applicant be regularly drug tested.

The Law

Section 60H of the Family Law Act clearly states that where a child is born to a woman as a result of artificial conception that uses a third party genetic donor whilst the woman is married to, or in a de facto relationship with, another person who is the intended parent, the child born as a result is deemed to be the child of the woman and her partner.

Whilst X’s parents are the Respondents, that does not exclude the Applicant from applying for parenting orders, as a parenting order, per section 64C, may be made in favour of  “a parent of a child or some other person”.

Section 61DA requires that in the making of a parenting order, the court has to apply a presumption in the interests of shared parental responsibility that is to be vested in the child’s parents. This presumption applies only the Respondents, and not to the Applicant, who by virtue of section 60H, is not a parent of X.

The Applicant sought a parenting order under section 65C(c), as a person concerned with the care, welfare or development of a child. The Court agreed that the Applicant was indeed a person concerned with the care, welfare and development of X, rather than a parent.

The Applicant’s application sought a graduated regime that would lead to a reasonably significant amount of time being spent with him, some five nights per fortnight. This regime would have a considerable effect on X’s relationship with her parents. The Respondents wished for the Applicant to have an ongoing relationship with X, but not to the extent that the Applicant proposed. The Court noted that the Applicant is “nothing if not a committed father”, as he continued to pay child support (where he was not obliged to).

In its final orders, the Court expressed that it wished for X to have a genuine and meaningful relationship with the Applicant, but for that not to negatively impact the primary family unit of the Respondents.

The final orders allowed the Applicant to spend time with X for a few hours over the period of 2 days per week. The orders are made in contemplation of X’s continued development, and include orders for when X begins school, at which point the Applicant is granted less continual time, but is given contact over some weekends, and school holidays.

The Respondents retain sole parental responsibility over X. The Applicant was also ordered to cease the use of illicit drugs within 24 hours of, and during the care of X, and to refrain from the consumption of alcohol within 12 hours of X being in his care.  Interestingly, and despite not holding parent status at law, it was directed that the Applicant be named as X’s father on medical and educational forms, and be at liberty to attend events and functions that a family member would normally attend.  The Court also directed that doctors and other health practitioners should be authorised by the Respondents to allow the Applicant to speak to them with regards to X’s health.