Assisted Reproductive Technology

Date: Aug 22, 2010
Document Type: Article

One of the more pleasant aspects of family law practice is dealing with the creation of families. 

Not all couples are able to have children by conventional means through sexual intercourse. This can be for any number of reasons, including medical reasons, or being in a same sex relationship.

Where conception via intercourse is not possible, often couples turn to assisted reproductive technology, including in vitro fertilisation or donor insemination.

Anecdotally most couples prefer that their children have a biological link to at least one of the parties.

Where in vitro fertilisation treatment or donor insemination has been unsuccessful in conceiving a child, an increasingly common arrangement couples are turning to include surrogacy.   This involves an arrangement whereby the commissioning couple (also referred to “intending parents”), enter into an arrangement with a woman (the surrogate mother) to be implanted with an embryo and surrender the child upon birth. 

Only altruistic surrogacy arrangements are permitted within Australia. Commercial arrangements within Australia are illegal. However there are some overseas places where commercial surrogacy is legal, such as California, British Columbia, India, Thailand and Russia.

The issue in cases where a child is conceived by a assisted reproductive technology, whether or not it involves a surrogacy arrangement, is who is considered the legal parents of a child in the eyes of the law.  

Where a woman undergoes in vitro fertilisation treatment, or donor insemination whether throug

a clinic or a home procedure, then she is deemed to be a parent of the child as is her marriage and/or de facto partner. This extends to lesbian couples. Where the sperm donation comes from someone other than her marriage or de facto partner, then that sperm donor is not deemed to be a legal parent of the child. 

In surrogacy cases, including gay male couples, one of the parties usually provides a sperm donation. However, under Australian law, he will not be considered a legal parent of the child, if it is an overseas surrogacy arrangement. 

Unfortunately the law in Australia concerning surrogacy has not kept up with what is happening in society. Some of the states and territories are introducing laws, analogous to adoption, whereby in surrogacy cases the status of legal parent can be transferred from the surrogate mother and her partner and conferred upon the intending parents. This is done by way of a court order by consent of all the parties. However this mechanism is not available in cases where the surrogacy arrangement is an overseas commercial arrangement. 

For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists Experts in Family Law. 
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