In Vitro Fertilisation (“IVF”) procedures are a form of assistive reproductive treatment which may be used to overcome a range of fertility issues and challenges which individuals and couples face when attempting to have a baby. Whilst IVF procedures are legislated by state law, potential issues of parentage, which may arise as a result of IVF, are regulated under the Family Law Act 1975 (Cth) (“the Act”). There has been an abundance of case law which has developed the parenting rights of donors in IVF procedures

Rebuttal of the presumption against parentage

The landmark case of Masson v Parsons [2019] HCA 21 established that whilst state legislation may include presumptions against parentage for donors, that ultimately a donor may be considered a legal parent. This is because the Act’s treatment of parentage was held to not be exhaustive. In a joint judgement in the Hight Court, their Honours said that:

“Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning”

The question of parentage is therefore determined according to the ordinary, accepted English meaning of ‘parent’. In their judgement, their Honours also noted that:

“Whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand”

Intention to engage in parental activities

The eligibility for parentage established in Masson v Parsons has been supported and developed in the recent case of Griffin & Laidley [2021] FCCA 1515. In this case, the sperm donor was the applicant who sought to spend time with the respondent’s child. The issue was whether the donor was considered a parent and could therefore be eligible to seek parenting orders. Judge L Turner applied a factual analysis in order to determine whether the donor would qualify as a parent.

Factors which the court considered relevant in determining whether the donor was a parent included that:

• The applicant donor held and continues to hold the expectation that he would be involved with the child
• The respondent mother informed the applicant of her pregnancy
• The parties jointly informed others of the pregnancy
• The parties attended ultrasounds together
• The applicant was informed of the progress of the pregnancy
• The parties discussed the naming of the child, and agreed on a name
• The applicant openly discussed his level of involvement with the child

It was held that the intention of the parties is relevant in determining parental status. If the facts of a case support a finding that a donor intended to be involved in some level of parenting, they may possibly be considered a parent of a child. In this case, it was also found that the respondent initially supported the donor’s expectation of parentage, and that her decision to cut the applicant out of the child’s life occurred only once boundaries were pushed.

By extension, as a donor may be found to be a parent by their intention to engage in parental activities, they may also be found not to be a parent via the absence of such intention. The case of McAuley v Salberg [2020] FCCA 1538 found that a donor may alter their parental intentions. In this case, the donor – who was considered a parent and engaged in parental activities until the child was 6 months old – ceased contact with the child. Whilst he was originally bound by legal obligations, such as child support, as a consequence of being listed as a parent on the birth certificate, his withdrawal of parental intention was permitted. Since the mother was in a committed de facto relationship at the time of the child’s conception – which later broke down – the court held that the donor was relieved of his parental responsibilities, and that his details be substituted for those of the mother’s former partner on the child’s birth certificate.

The resolution of parenting issues in IVF procedures continues to evolve. At Nicholes Family Lawyers, we continually develop our expertise in assistive reproductive treatments, such as IVF, in order to maximise your benefits in the resolution of legal issues which may arise.