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Artificial Insemination and the Meaning of "Parent"

A recent decision of the Family Court has dealt with the meaning of “parent” under the Family Court Act 1997 in instances where artificial insemination procedures are used.

The mother of the child advertised in the Perth gay press as a single lesbian looking for male co-parents for a child. The applicant responded to the advertisement and the parties had various meetings to discuss their plans to conceive a child with the mother undergoing artificial insemination with the applicant’s semen on five or six occasions.

The applicant arranged for a parenting agreement to be drafted for the parties to sign which allowed for an equal, shared co-parenting arrangement where the care and decision making for the child along with the financial costs associated with raising the child would be shared.

However, the applicant got cold feet when the mother refused to enter into this parenting agreement and decided to put things on hold until a parenting agreement had been entered into. At the time of this decision the mother discovered that she was pregnant.

The applicant applied to the Court for parenting orders namely that the parties have equal shared parental responsibility for the child. The mother opposed these orders and sought sole parental responsibility for the child on the basis that the presumption of equal shared parental responsibility in the Family Court Act did not apply in this case as the applicant was not a “parent” of the child under the Act.

The Court discussed the meaning of parent under the Family Court Act where there was no dispute that the child was conceived as a result of an artificial conception procedure between parties who were not married. The only definition of “parent” in the Family Court Act relates to adopted children, so the Court turned to the Artificial Conception Act 1985. Section 7(2) of this Act states that where a woman becomes pregnant in consequence of an artificial insemination procedure and a man produced sperm for the purposes of this procedure this man:

• shall be conclusively presumed not to have caused the pregnancy; and
• is not the father of any child born as a result of the pregnancy.

In accordance with this definition the Court held that the applicant was not the legal father but, rather, the genetic or biological parent. This meant that the presumption contained in the Family Court Act of equal shared parental responsibility did not apply.

The Court then stated that persons other than parents may apply for a parenting order if they are a person concerned with the care, welfare and development of the child and if it would be in the best interests of the child to make such an order.

On this basis the Court found that the applicant was a person concerned with the care, welfare and development of the child. However, due to the discord and disharmony between the parties on almost every issue relating to the child, the Court held that it would not be in the child’s best interests for an order for equal shared parental responsibility to be made. The Court then made an order for sole parental responsibility in favour of the mother and for the applicant to spend time with the child as was age appropriate.

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