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Egg donor found to be a parent after proving existence of de facto relationship

In the case Clarence & Crisp [2016] FamCAFC 157 the Full Court of the Family Court recently released judgment identifying the legal parent of a child conceived through an artificial conception procedure.  The appellant in the matter was the birth mother of the child, with the respondent being the female donor of the egg which had made the conception possible. The court was asked to determine whether the parties were in a de facto relationship at the time of the medical procedure leading to conception. The birth mother stated that the relationship had concluded 4 months before the procedure, however the donor mother believed the separation date to be one month after the conception of the child.

The Family Law Act provides the circumstances when parties will be found to be in a de facto relationship. It provides that the parties must not be married or related, but “have a relationship as a couple living together on a genuine domestic basis” having regard to all of the circumstances. The Act further lists the circumstances for the court to consider which includes the duration of the relationship, the existence of a sexual relationship, and the degree of mutual commitment to a shared life, amongst other factors.

The trial judge reviewed the circumstances of the case and found such a relationship to be existing at the time of the conception. The court considered the existence of 850 text messages between the parties containing genuine sentiments of love and commitment, as well as evidence suggesting that the parties continued a sexual relationship, with evidence the donor mother continued to spend overnight stays weekly at the birth mother’s home. Furthermore the parties had identified themselves as “partners” on donor declarations regarding the embryos. As such the parties were deemed to be in a de facto relationship despite living separately at the date of conception, meaning that the parties were both recognised as the child’s parents, and an order for equal shared parental responsibility was made.

The birth mother then proceeded to appeal this decision, saying that no such relationship existed. The Full Court agreed with the reasoning of the trial judge and dismissed the appeal, awarding costs against the birth mother in the process.

This matter highlights the importance of establishing a clear intention of both parties at the time of the any artificial conception procedure. The Full Court further stated that in order for a de facto partner of the birth mother to be recognised as a parent the only requirement is that they consent to the procedure.


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