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Are Declarations of Parentage Applicable to Polyamorous Relationships?

In a decision handed down on 26 April 2021, a British Columbia Supreme Court Judge ordered that all three members of a polyamorous family should be registered as parents of the child they are raising together.

This case was simply the most recent in a line of Canadian provincial cases which have sought to re-examine the law regarding parentage in light of the ever-changing notion of a modern family, and involved a relationship between Bill, Eliza and Olivia (anonymised).

Eliza and Bill had conceived a child through sexual intercourse prior to adding Olivia to their polyamorous relationship. Because the child was conceived through sexual intercourse, the British Columbia Family Law Act left no room for Olivia to be included on the child’s birth certificate as she was not the birth mother or presumed biological father.

Yet Justice Sandra Wilkinson found that a gap existed in the law as the Legislature did not foresee the possibility that a child may be conceived through sexual intercourse but still have more than two people serving the role of parents, as is the case with polyamorous families.

Interestingly, it was noted by Justice Wilkinson in this matter that had the child been conceived through assisted reproduction the parties may have been able to rely on different sections of the legislation to all be declared parents.

The position with regard to declarations of parentage for members of polyamorous families is yet to be tested in Australian courts. However, as was mentioned in our recent blog ‘Do polyamorous relationships mean more work when people separate?’, polyamorous relationships that exist for 2 years or more may constitute a “de-facto relationship” under the Family Law Act 1975 (Cth) (‘the Act’) in Australia. It is therefore arguable that certain parentage presumptions applicable to de facto partners under the Act could be extended to a non-biological parent in a polyamorous relationship.

Pursuant to section 60H of the Act, if a child is born to a woman as a result of an artificial conception procedure while the woman was in a de facto relationship with another person (the other intended parent), and the woman and the other intended parent consented to the carrying out of the procedure, then despite not being the biological parent of the child, the other intended parent will be considered a parent of the child along with the biological mother.

It is not unforeseeable that the above scenario could play out in the context of a polyamorous relationship, with a female member of the relationship undergoing an artificial conception procedure with the consent and support of the other two members of the relationship. The High Court of Australia, in Masson v Parsons [2019] HCA 21, held that the effect of s 60H was to expand the range of persons who may qualify as a parent of a child born via artificial conception. In this case the sperm donor fell within the ordinary meaning of the word parent and was recognised as such. Although the facts of this case were unique, the High Court did demonstrate a willingness to widen the category of ‘parent’ in the appropriate circumstances where this accords with the intentions of all parties and applying “the ordinary meaning of the word” parent. It remains to be seen whether the parentage presumptions under the Act can be applied in the context of polyamorous relationships. This area of the law is continually evolving, and it is possible that legislative amendments will be introduced to keep up with the developing notion of the family, as is being seen in Canada. Nicholes Family Lawyers has expertise in parenting matters, including same-sex and de-facto relationships, and can provide assistance in determining parental rights.

By Nicholes Family Lawyers

 

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