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Children and custody

Assisted conception and family law

By February 4, 2019November 1st, 2021No Comments

With the next round of family law reform in Australia to gather pace this year, we should see a great deal of change in the family law arena including in the area of laws around assisted conception, fertility and legal parenthood.

Many commentators have noted that current assisted conception legislation has not kept up with the great rate of social change. Diverse modern families are demanding ever-changing legal needs and deficiencies have been exposed in the legal system, as witnessed by an increasing number of cases asking family courts to clarify parentage of kids born with the assistance of new technologies.

Recent landmark court cases in Australia have looked at assisted conception issues such as sperm ownership and assignment of parentage after surrogacy. Other cases have revealed the need for greater clarity for same-sex couples on reproductive issues.

One recent case exposed a legal loophole wherein Family Court judges found themselves powerless to decide the status of legal parentage of children born through surrogacy, because the Family Law Act 1975 gives this power to the states and territories, which in turn do not recognise children born through commercial surrogacy, leaving the parentage in doubt.

And on the issue of sperm ownership, although one case in Queensland allowed a woman to use her dead husband’s sperm, following an earlier decision in NSW, a new ruling in Victoria has refused to allow a woman permission to use her late husband’s sperm to have a baby, because her husband had only provided written consent specifically for embryos to be used post-humously. The forms the couple had to use at the time only offered the option of using embryos, due to the contemporary state legislation. That legislation was later amended but the husband was not informed and therefore was unable to change his consent notification to also include his sperm.

Clearly, loopholes and technicalities that could prevent people from having a much-longed for child need to be fixed. Experts say the law simply needs more flexibility built in, to deal with ever-diversifying family units. Issues range from how to assign parental rights after fertility treatment, to improving international surrogacy laws, to regulating the developing online fertility industry. But there are also little details that need adapting to modern needs, such as time limits and storage limitations on egg and embryo freezing. And through it all runs the ethical debate, which deals with concepts such as sex selection and screening for certain genetic or physical characteristics.

In the UK, which is also debating assisted conception legal reform issues, one article asks whether existing UK legislation should be torn up and completely started anew, arguing it should be “replaced by one, all-encompassing, rule of thought: ‘Where a child is born through artificial insemination or the transfer of an embryo, the legal parents of the child are the persons, who at the time the child is conceived, intend to be the legal parents of that child and each legal parent can choose whether they are registered as the child’s mother, father or parent’.”

As Australia contemplates amending its forty-year-old Family Law Act, it’s unlikely to be that simple…But in this area of “developing morality” and given the huge social changes and scientific advances of modern times, Australia’s fertility law is certainly ripe for reform related to assisted conception.

If you need help with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

Read about assisted conception in the US, where the fertility industry “remains largely unregulated and routinely offers services outlawed elsewhere”.


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