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VLRC: Recognising all parents

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Cite as: (2005) 79(9) LIJ, p. 80

Just who constitutes a parent is considered by the VLRC’s second position paper in its assisted reproduction and adoption project.

The use of donated gametes to conceive a child has resulted in social and legal confusion concerning exactly who is the parent of the child.

Are parents the people who give children their genetic matter or are they the people who raise the children?

The Victorian Law Reform Commission (VLRC) [through 27 interim recommendations] in its second assisted reproduction (ART) and adoption position paper addresses the question of legal parentage and access to information about donors for people conceived from donated gametes.

Current legislation automatically transfers parental status to the woman and man who raise a child born from donated gametes.

However, this does not cover women without male partners who have a child from donated sperm. For these women, the donor is considered for some purposes to be the legal father of the child, even if he is unknown to the mother.

The VLRC is recommending that the female partner of a birth mother be recognised as the parent of a child born while the two women are together, providing the partner consents to the birth mother getting pregnant and the women undergo counselling before they attempt a pregnancy.

To achieve this recognition, the VLRC is proposing the Adoption Act 1984 be amended to introduce a system of “deemed adoption”.

Adoption was chosen as the best method because it would be recognised by federal courts. A deeming provision, such as exists for heterosexual couples, would not necessarily be recognised by the Family Court.

Deemed adoption tries to mirror as closely as possible the requirements that heterosexual parents who conceive with donated gametes must basically satisfy the following:

  • the partner must have been living with the birth mother in a genuine domestic relationship;
  • the partner must have consented to the birth mother becoming pregnant;
  • deemed adoption would only be available to couples who use a clinic to get pregnant, and so must undergo counselling about becoming a parent; and
  • the partner understands she will be legally responsible for the child born for the rest of her life, regardless of the status of her relationship with the child’s birth mother.

To counter the possibility of a federal court not recognising deemed adoption, the VLRC is recommending an amendment to the Status of Children Act 1974 to allow the Supreme Court to make declarations of parentage.

After satisfying the deemed adoption criteria, the non-birth mother would then be able to have herself recorded as the child’s parent on his/her birth certificate.

Under the interim recommendations, sperm donors would not be recognised as the fathers of children unless they adopted them.

The VLRC has also proposed that in situations where the sperm donor is known to the mothers and all three agree that he should be involved in the child’s upbringing, he can apply to adopt the child and be recognised as a legal parent on the birth certificate.

As well as allowing the female partners of mothers to be recognised as a parent, the VLRC is recommending that same-sex couples and single people be permitted to adopt children they are not biologically related to. This would remove discrimination based on marital status from the Adoption Act.

Donor information

Access to information about the donors of gametes and the people born from them has been a bone of contention in the ART arena.

The government has already changed the law so that people born from donated gametes after 1 January 1998 are able to access information about their donor once they turn 18.

People born from donated gametes before this date are not able to find out information about their donor unless he has contacted the Infertility Treatment Authority’s voluntary registry.

There has been a proposal that all children born from donated gametes be informed of their origins once they turn 18.

The VLRC has decided that the best method for telling a person about their origins is to leave the task to that person’s parents. Parents of a donor-conceived child would receive counselling before and after conception to equip them with the skills needed to tell their child about their origins from an early age. Donors who want to contact their offspring can record their name and contact details on the voluntary register.

The VLRC is also proposing that the Registry of Births, Deaths and Marriages be responsible for maintaining the donor registries and information for donors that children will be able to access when they feel ready.

Rather than placing an arbitrary age of 18 on access to this information, the VLRC is proposing a process whereby children aged under 18 can access the information, providing they receive counselling and their parents are aware of their actions.


Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information, ph 8619 8619 or visit the website http://www.lawreform.vic.gov.au.

viclawreform@liv.asn.au

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