Does the biological parent have more say than the other parent?
Under the Family Law Act (the Act) the parents of a child are responsible for the care, welfare and development of the child. Each parent of a child has parental responsibility for the child. 'Parental responsibility' means all the duties, responsibilities and authority which, by law, parents have in relation to children.
There is a presumption under the Act that it is in the best interests of the child for both parents to have equalshared parental responsibility for the child. This presumption only applies where children are safe from harm.
Unfortunately the Act does not provide an exhaustive definition of the word 'parent'.
Instead, the Act sets out a range of circumstances in which people are presumed to be the parent.
Artificial conception can occur where a woman is inseminated with sperm from a donor (not through intercourse) or where an embryo or donor egg is implanted using IVF techniques.
Under the Act, if a woman bears a child as a result of artificial conception from donated sperm, while she is married or has a de facto partner, and all parties (including the donor) consented to the arrangement then the couple will be considered the legal parents of the child. The sperm donor will not be considered a parent.
In this way, lesbian couples who are in a de facto relationship and conceive a child through artificial conception will be considered the legal parents of the child.
This could however have implications for gay couples who donate genetic material to artificially conceive a child with a woman who is married or in a de facto relationship. Because the woman's husband or de facto partner is recognised as the father of the child, despite not being biologically related, a gay couple who donated sperm would not be considered to be parents, notwithstanding that one of them may be biologically related to the child.
This means that if a gay couple wish to attain legal status as parents of a child conceived by artificial conception they would then need to legally adopt the child with the consent of the birth mother and her husband or partner.
Ok... so does the biological parent have more say than the other parent?
As can be seen from the discussion above a person who does not share genetic material with a child can be considered a parent of the child and, in other circumstances, a person who does share genetic material with a child may not be considered a parent of the child.
As you can see, this is a very complicated area of the law and it is essential to get experienced family law advice before entering into any arrangements for the artificial conception of a child.
When a court makes an order in relation to a child it is called a parenting order. Commonly parenting orders are about who a child is to live with or spend time with or who has parental responsibility for a child. Parenting orders must be in the best interests of the child.
In the context of this blog it is important to remember that under the Act it is not only parents who are able to apply for parenting orders.
Any significant person concerned with the care, welfare or development of the child can apply to the Court for parenting orders.
In this way same sex couples or other individuals who are not legally considered as parents of a child can apply for orders from the Family Law Courts to formalise parenting arrangements such as who the child is to live with or spend time with.
Again, it is very important to seek experienced Family Law legal advice in relation to these matters.