Law and Regulations governing donor conception in Australia

• HUMAN RIGHTS TREATIES - Australia is a signatory to 7 International human rights treaties, and these treaties or conventions help to ensure that the laws made in this country provide those human rights to all Australian citizens. The UN Convention (Universal Declaration) of Human Rights and the Convention on the Rights of the Child (UNCRC) set out the rights of every adult, the responsibilities and duties of parents, and the special rights of all children. One such right is that the best interests of the child shall be the paramount consideration. Our law here reflects this and our Family Court judges are guided by the paramountcy principle whenever a dispute arises.

• FEDERAL LEGISLATION - The Family Law Act 1975 (Cth) is the governing legislation on all things related to families – from de facto relationships and marriage to separation and divorce, and of course parenting and children. It is national legislation, so it applies acriss all Australian states and territories. The Family Law Act sets out the responsibilities and duties of parents and gives legal parents the power and authority to fulfil them. Importantly there are no rights for parents in the Act, only responsibilities, and these responsibilities are in direct relation to the rights of children as set out in the UNCRC.

• STATE LEGISLATION – The States and Territories have their own laws which deal more extensively with donated gametes and surrogacy. Generally, these are the Assisted Reproductive Treatment Acts and the Status of Children Acts. which set out an irrebuttable presumption that a donor is not a legal parent. That said, federal law overrides State law wherever there is a conflict, which can make this area of law more complex.

• CASE LAW evolves as matters come before the court and can set new precedent - essentially directing the court as to how to interpret legislation in future cases with similar issues. This may be due to changing values of society at a given time, or as a result of finer points arising out of a dispute which cannot clearly be dealt with based on legislation alone.

• In jurisdictions where there is no legislation, or where the law is silent on a particular issue, GUIDELINES (such as those issued by the National Health and Medical Research Council) set out recommendations and appropriate practices.
  
  

Defining a legal parent

Given the Family Law Act grants rights to parents, and places responsibilities and duties on parents, so it therefore must define who is considered to be a parent at law. Section 60H of the Act sets out who is considered to be a legal parent of a child born as a result of an artificial conception procedure. It stipulates that –

• the woman who consentsto the artificial conception procedure and becomes pregnant is a legal parent; and

• if the woman had a spouse or a de factopartner at the time who also consented to the conception procedure, then that person is ‘the other intended parent’ at law and is therefore a legal parent.

The person who provided genetic material for an artificial conception procedure (thereby consenting to its use in the conception procedure) is NOT the legal parent and is considered to be a donor at law.

Important points to be aware of –

• Consent, in this context, is presumed unless it can be shown otherwise – so it will be presumed that a spouse/partner, and the donor, did not not consent.

• ‘Artificial conception procedure’ is the term used in the Act, which is defined as artificial insemination as opposed to natural insemination (or sexual intercourse). There is a presumption that a child conceived through intercourse is the child of the man, and unless all the other factors can show the parties intended otherwise a court is likely to say that the child is the child of the man.

People really do need to make sure they are fully aware and informed and ideally educated in all the potential issues before they head down this path. They should have given full consideration themselves to what will be in the best interests of their child, just as a court will.

Defining a donor under family law. 

A ‘donor’ is a person who provides genetic material to a woman who has consented to an ‘artificial’ conception procedure. This is as opposed to ‘natural’ insemination by way of intercourse, which would have implications at law as to who might be considered to be a legal parent.

Unlike a legal parent, a ‘donor’ is offered protections from legal obligations such as being responsible for the care and welfare of the child and paying child support. But a donor also has no legal ‘rights’ in relation to the child.

A donor might be known or not known to the woman who has consented to the conception procedure, but they can no longer remain anonymous in Australia due to legislative change reflecting current social values, or worldwide due to direct-to-consumer DNA services.

Payment and Reimbursement

Importantly, it is illegal for a donor to be paid in this country – or to trade in human eggs, human sperm or human embryos for valuable consideration – and for this reason parties cannot legally contract to have a child (as consideration is a legal requirement for a valid contract to be formed). Which is another reason why you will hear that a conception agreement cannot be considered a legally binding contract.

It is important to be aware that a person will have committed an offence if they offer to pay, or offer to receive payment, for human gametes, and it is considered to be a very serious offence. This is legislated in the Human Tissue Acts, and in the Prohibition of Human Cloning for Reproduction Act (Vic) in which is an offence punishable by imprisonment for up to 15 years.

That said, there is an exception in the Act for ‘reasonable expenses’ in relation to the supply of donated gametes, which is defined as ‘including but not limited to expenses relating to collection, storage or transport.’

People need to be aware of this, and keep in mind that the intention is to ensure that there is no commercial trading in human tissue, or in humans. It is therefore advised to avoid requesting or receiving any payment which is clearly not reimbursement for reasonable expenses in relation to the above only, and if unsure then parties should seek legal advice.

Defining a recipient under family law. 

A ‘recipient’, or ‘intending parent’ is the person who receives human sperm or a human egg or embryo as a gift. They are bound by the same rules regarding payment as a donor is – that is, they cannot offer to pay for human gametes or embryos.

People should also be aware that only a doctor can carry out an insemination procedure on a woman. She can self-inseminate, but it is illegal for anybody else to do so.  

There are of course options when it comes to conceiving a child using donated gametes – basically, either going through a clinic where parties will have all of the protections offered and fall under the rules and regulations of the clinic; or not going through a clinic, where you find a donor who is either known or unknown to you, and who will be known or unknown to the child, and the onus to protect yourselves will be on you.

As previously stated, consent and the method of conception are important factors specified in the Family Law Act. The woman intending to become pregnant will be considered to be a parent, and if that woman has a spouse or a de facto partner who doesn’t not consent, then that person will be the ‘other intended parent’ and the donor won’t be considered a legal parent.

However, there are factors which will make who is considered a parent less clear - not least because humans are complex creatures with complex emotions! But also where, for example, conception is achieved via intercourse, which of course carries safety risks the parties must consider and mitigate, or where intentions aren’t clear, or where the child forms a relationship with the donor - this makes the whole situation less clear and the ‘donor’ could potentially be considered to be the parent – which may or may not be what the parties intended and which may lead to dispute.

Again, the parties should always be guided by what will be in the best interests of the child. I would advise that parties really think about what they want their family to look like at the outset, and what they envisage and understand their role in this to be, so as to minimise the risk of dispute. But they should also be mindful of human nature and be prepared to be flexible regarding the evolution of these roles as the child grows.  

How will a court decide whether a donor is a parent?

The court will apply the CRC and the Family Law Act, which says that it is the child’s right to have the benefit of both parents having a meaningful involvement in the child’s life. While the interest of the parent may, perhaps must, be taken into account, the ultimate overarching consideration is whether or not it is in the child’s best interest for a parenting order to be made (Groth & Banks Vic/Cth 2013).

How does a court determine the best interests of the child?

Section 60CC of the Family Law Act sets out how a court must determine what is in the child’s best interests. It very much reflects the articles set out in the CRC. This includes considering the benefit to the child of having a meaningful relationship with both parents, and considering the nature of the relationship of the child with each of the parents and other important persons, such as grandparents and other relatives. Of course protecting the child from harm is also a paramount consideration for the court.

When the court interprets the best interests of the children before them a body of case law evolves, which deals with the many complexities which inevitably arise in all families. It particularly sets out finer points regarding parenting and time spent with children. The best interests of the child will always be the paramount consideration, and the Family Court has the power to decide that it is in the best interests of the child that they spend time with important persons in their life based on all the circumstances.

Why a conception agreement matters legally despite not being ‘legally binding’  

In addition to not forming a legally binding contract, a conception agreement won’t be binding on a court because Judges are required to follow the provisions of the Family Law Act and other legislation. Some family law documents actually need to be non-binding at law (such as a parenting plan) so they can be amended and updated in accordance with the needs of the child. A legally binding document (such as court orders or binding agreement/contract) must be legally set aside, or legally amended, which generally requires legal intervention.

That said, even though a conception agreement won’t bind the court, it will guide the court. And it will guide the parties. A conception agreement is important for a number of reasons –

• To document the agreement between the parties in order to provide maximum certainty and protection;  

• To evidence contemporaneous intentions, particularly regarding parenting;

• To evidence that no criminal offence has been committed, such as buying or selling sperm or eggs;

• To bring out and address any issues between the parties;

• To make clear to each other (and perhaps even to themselves) what their intentions are;

• To educate the parties on the legal issues, ensuring they are fully informed;

• To minimise the risk of dispute escalating to the Court, but if so to provide clarity and guidance, saving significant time and cost;

• And importantly, to provide records for the child.

A well-drafted conception agreement should do all of this and even more, and it can and should be updated as necessary.

There are many basic proforma pre-conception agreements out there on the internet, however unless drafted by a lawyer with specialist knowledge in both family law and the laws governing ART, they can be ineffective or even void in part or all where they conflict with the law of the jurisdiction.

Sometimes lawyers are worth it. Our job is to know all the things that can go wrong (and has gone wrong) and to act to prevent or mitigate that from happening.

Whether pre or post conception, It’s never too late to put a written agreement into place, no matter where you are on your journey. It really is worth doing this properly for the sake of everyone involved, and most importantly for the child.

'Intention' at law

Intention is an important concept at law. The court will specifically look at what was intended by the parties in order to ascertain the best remedy for a dispute.

Intention is subjective, and it is fluid, so what was intended at the beginning of an agreement may well change as circumstances evolve – as circumstances tend to do with children.

As a wise woman once said, ‘we do the best we can with what we have until we know better, and then we do better’. Contemporaneous intention is important as it serves to show the state of mind of each party at the time the agreement is made.

To document the agreement between the parties

To educate parties on the legal and emotional issues and to ensure they are all fully informed

To elucidate and address any issues between the parties

To evidence contemporaneous and future intentions

To provide a working framework for the parties, with the ability to amend and update as and when necessary

To provide certainty and protection

To mimimise risk of dispute and prevent damaging litigation

To guide the parties and, if necessary, the Court in the event of a dispute

To provide clarity to a judge to minimise time and cost in Court

And importantly, to provide records for the child.

If you would like advice about known donor agreements please book a legal consultation.

It is important to understand the difference between
a legally valid agreement
and a legally binding one.

A properly executed Agreement
will have legal validity
(in contract)
over the parties who entered into it,
but it will not be legally binding on the Court
wherever it conflicts with the law.

Judges are required to follow the provisions of
the Family Law Act
(and other relevant legislation)
and legal precedent
(case law)
and this body of law will override
whatever is written in any agreement.

A poorly drafted agreement
which conflicts with state and federal law
and which disregards treaties and guidelines
will be invalid
and, more importantly,
useless when it really matters.

There are of course MANY of these
available on the internet
and unless drafted by
a lawyer with specialist knowledge,
they provide little assurance and little certainty.

See, sometimes lawyers are worth it😊
Our job is to know all the things
that can and have gone wrong
so we can do everything possible
to prevent that happening
to you and your family.

Martine & Carmona [2024] FedCFamC2F 800 (27 June 2024)

FAMILY LAW – Parenting – parental responsibility – live with – spend time arrangements between three parties

This case shows how a court will determine parenting matters in donor conception.

Section 60H of the Family Law Act 1975 stipulates that:

The person who has the artificial conception procedure is a legal parent with parental rights and responsibilities (the parent); and

The legal partner (de facto, spouse) of the mother at the time of the procedure who consented to the procedure is also a legal parent (the other intended parent); and

The person who donated genetic material is not considered a legal parent under the Act.

However, it must now be advised that, as with all parenting matters, this section is subject to the best interests factors.

The effect of case law
The best interests of the child remain the paramount consideration for the Court. Put simply, it is the nature of the relationship as seen by the child that will be a (if not the) determining factor as to who is a parent.

Note: interestingly, this case was heard prior to amendments to ss.60B (objects of part) and 60CC (how a court determines what is in a child’s best interests) of the FLA coming into effect and decided after them – the Bill was passed in October 2023, amendments came into effect May 2024. It must be remembered that these amendments now allow for a much broader interpretation. In my view the court had these amendments in mind when deciding this case. Not only can this outcome be relied on, it can be considered even easier for the court to arrive at it now.

CLICK BELOW TO READ CASE SUMMARY

Martine & Carmona [2024] FedCFamC2F 800 (27 June 2024)

Full transcript: Martine & Carmona [2024] FedCFamC2F 800 (27 June 2024)

The facts of the case are as follows –

Background

·        Ms M and Ms C entered into a relationship in 2007 and began living together.

·        The couple decided to have a child and began the process of finding a sperm donor.

·        In or about mid-2009 they met Mr H.

Agreement

·        It was agreed between the parties, and written in a document titled Parenting Issues Version 10, that “our intention is that the mums will be the primary care parents and the dad will be involved with the child but in a secondary role.”  

·        The document also provided for overnight stays with Mr H when the child reached six months of age, and for time to be spent with Mr H every second weekend from the age of 5 years. 

·        The document was not executed, but it did expressly show the Court the implied terms of the agreement between the parties and what their contemporaneous intentions were.

·        In accordance with their agreement, Mr H met X at the time of his birth in 2014, spent time with him and Ms C about once a week for the first 8 months of X’s life, and then overnight time with him.

·        From the age of around 4 and a half X spent time with Mr H every third weekend as the relationship between Ms M and Ms C had by this point broken down and each mother wanted a weekend with X separately.

Separation

·        In late 2019, after a period of living separately under one roof, Ms C moved out of the former family home she shared with Ms M and took X with her. Ms M alleged that Ms C had abducted the child. Ms M commenced legal proceedings, seeking an injunction that the child not be removed from Australia (as Ms C had been born in the UK).

Commencement of Legal Proceedings - 2020

·        Consent Orders were entered into stipulating that Ms M and Ms C both have equal shared parental responsibility and that X live in an equal shared care arrangement between them on a week-about basis (and each also had some specified time with the child during the weeks they weren’t with him).

Obviously these Orders did not contemplate the complete parental relationship in a manner that would finalise legal matters for this family, and so began a further turbulent period.

At the time the Orders were made, Mr H placed temporary accommodation on Ms C’s property which allowed him to spend flexible time with X. Whilst this was stated to have occurred every third weekend in accordance with their ongoing agreement, and it meant less travel time for X, the amicable nature of the relationship between Ms C and Mr H obviously became an additional source of discord with Ms M, and consequently further disruption for X.

·        Ms M sought sole parental responsibility.

·        Mr H sought that he be added to proceedings and that Ms C have sole parental responsibility and Ms M spend time with the child every alternate weekend.

·        Ms C amended her response seeking that X live with her and spend time with both Ms M and Mr H.

·        On 16 July 2020 the Court joined Mr H, and Consent Orders resulted which stipulated that X live week-about between Ms M and Ms C, and spend time with Mr H during the times he is with Ms C.

Psychiatric assessments of all parties, as well as the child, followed in 2021, with the expert finding that - 

“…Ms M seemed to be meeting the intellectual needs, social needs, health needs and day to day emotional needs of X, but [she] is lacking insight into X’s emotional well-being by not acknowledging how Mr H is a significant person in X’s life which needs to continue for X’s overall emotional wellbeing. Ms C appeared to be lacking insight into X’s overall emotional needs, but appeared to meet his day to day emotional needs, his intellectual needs, social needs and health needs. X’s overall emotional needs remain in jeopardy given the conflict between Ms M and Ms C as well as between Ms M and Mr H.”

Further therapeutic family therapy sessions were ordered in late 2022, the transcript showing that –

‘X listed the priority in which he wanted to go to the three houses, first with Mr H, second with Ms C and third with Ms M; and

X said “when I am 10 I can make my decision as to where to go and when”’.

The Court took into account and gave weight to the views X gave to the counsellor in relation to his live with and spend time arrangements.

·        It was also noted that Ms M continued to refer to Mr H as the sperm donor and called him Mr H rather than Daddy (as X had always called him) in X’s presence.

In addition to the living and time arrangements, the child’s health, neurodiversity, and vaccination status was also in dispute.

·        Ms M refused to immunise X and refused to vaccinate him against Covid 19. The Court ordered that X be vaccinated.

·        Ms M refused to comply with orders regarding the administration of medication.

February 2023

·        The Court made Interim Orders that X live with Ms C and spend time with Ms M on weekends, and that all parties comply with directions made by medical practitioners and administer prescribed medication.

·        Ms M continued to refuse to give X his medication which stopped him from having medical episodes at school.

·        X had changed schools and soon after he refused to go into the care of Ms M.

April 2023 – Child Impact Report

·        The Court Child Expert’s report noted that Ms M and Ms C now presented as unable to prioritise the needs of X over the conflict between them, essentially both fighting over the ultimate prize, being X.

·        Mr H presented as child-focused, and the expert recommended that the Court give strong consideration to Mr H’s proposal that he have sole parental responsibility for X and that, should Mr H be willing, consideration should also be given to X living primarily with him.

June-July 2023

·        Mr H filed an urgent application that he have sole parental responsibility for X and that X remain at his new school, where he was now receiving speech and occupational therapies and counselling after being informed that Ms M had contacted the school and demanded that this engagement cease and that X would no longer be attending school on an ongoing basis.

·        Mr H did not seek that X live with him given X was comfortable and safe living with Ms C, loves his school and his friends, and is happy.

Outcome

The Court noted the following –

·        When deciding what parenting orders to make it is the best interests of the child that is the paramount consideration of the Court.

·        The Court is informed as to what is in a child’s best interests by the primary and additional considerations is section 60CC of the Family Law Act 1075 and in the context of the overarching objects and principles set out in section 60B.

·        Mr H’s legal status becomes relevant to the assessment of the section 60CC considerations.

·        Section 65C(c) of the Act provides that a parenting orders may be applied for by a person concerned with the care, welfare, and development of the child.

·        To characterise Mr H only as a sperm donor and not a person concerned with X’s care, welfare and development would be to ignore many of the facts and circumstances of this case which lead to the conclusion that Mr H is indeed in practical terms a parent of X within the ordinary meaning of the word.

·        The evidence unequivocally supports that Mr H has provided support and care to X since the time of his birth and will continue doing so.

·        Ms M and Ms C do not enjoy any superiority over any other person interested in X’s welfare, namely Mr H. There is no presumption in favour of them over Mr H.

·        Where the provisions of s60B and s60CC of the Act refer specifically to ‘parents’ in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature did not intend those relevant factors to extend to parties or third parties who are not parents of the subject children.

·        Although some of the factors prescribed for consideration under s60CC(3) of the Act refer only to parents, those factors insofar as they concern a party like Mr H may still be considered under s60CC(3)(m) of the Act and are relevant under whichever provision they are discussed. S60CC(3)(m) provides flexibility and a broad opportunity to consider many diverse matters relevant to the welfare of a child, that is, any of the s60CC considerations.

·        I include Mr H in all of the s60CC(2) and (3) considerations, rather than pursuant to s60CC(3)(m).

·        The Court found that there is a benefit to X of have a meaning relationship with all three parents.

·        The Court found that the conduct and relationships between the parties weighed in favour of X continuing to live primarily with Ms C.

·        The Court was not satisfied that all 3 parties share parental responsibility and only the ICL sought same. The Court awarded shared parental responsibility to Ms C and Mr H.

·        The Court found it impractical in the geographical circumstances for an equal shared care arrangement with Mr H but that it was in X’s best interests to spend substantial and significant time with him.

·        Ms M was awarded time with X on weekends and in school holidays.

What’s new in Family Law for ALL PARENTS

From 6 May 2024 the object of the FAMILY LAW ACT in Australia will be to:

GIVE EFFECT TO THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, and

TO ENSURE THAT THE BEST INTERESTS OF THE CHILD ARE MET.

There will no longer be

A PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY, or

A MANDATORY CONSIDERATION OF ANY SPECIFIC TIME ARRANGEMENTS

Reflecting the fact that EVERY FAMILY IS DIFFERENT.

The main changes are CHILD FOCUSED in accordance with the UN Convention.

There are now 6 FACTORS that the Court is to consider when making PARENTING ORDERS:

The first and most important consideration is:

WHAT PARENTING ARRANGMENTS WILL PROMOTE SAFETY FOR THE CHILD no matter whether that person has parental responsibility for the child or not (so this applies to grandparents and to step-parents and to anyone else who has care of the child).

The second consideration the Court will consider is:

ANY VIEW EXPRESSED BY THE CHILD in recognition that THE CHILD HAS RIGHTS and DESERVES TO HAVE A SAY in proceedings that concern them.

Additional considerations reflecting the UN Convention include:

The DEVELOPMENTAL, PSYCHOLOGICAL, EMOTIONAL, AND CULTURAL NEEDS OF THE CHILD

as well as

THE BENEFIT TO THE CHILD OF BEING ABLE TO HAVE A RELATIONSHIP WITH BOTH PARENTS AND WITH OTHER PEOPLE WHO ARE SIGNIFICANT TO THE CHILD

With the intention here being to DETERMINE such benefit IN RELATION TO THE CHILD and NOT BY THE PARENTS.

If you would like to understand how these changes affect your family please arrange a legal advice consultation.