Mummy who are my parents? The difficulty with the ‘other intended’ parent, artificial insemination and divorce!
The area of artificial insemination and the declaration of parentage after the breakdown of a de facto relationship or where the sperm donor is known, is an area that produces complexity, unusual facts, and not always positive outcomes.
Below is a summary of the most recent and relevant case law in the area of artificial insemination and who is a parent.
The matter of Wall v Pearson which was heard on 4 October 2016 in Adelaide on an interim basis, concerns a lesbian couple, Ms Wall who with the applicant and Ms Pearson the respondent. Ms Wall and Ms Pearson began living together in mid-2004 and on or about 13 March 2016 their relationship ended.
Although the donors were known to Ms Pearson and Ms wall, under section60 H (4), the donors are not legal parents of the children.
The Court found that the parties were living in a de facto relationship at the time of conception of the children.
The difficulty of this case, was not so much the issue of artificial conception and whether one of the parties was a parent, but what to do in circumstances where the children had two different biological mothers and although lived together for a period of time- their lives had significantly changed because the children were now physically separated in their living arrangements.
The Court found that the focus, had to be what was in the best interest of the children and also found that both parties were parents under section 60 H (1) of the Family Law Act.
The case of Freeman and Bowman  Family Court of Australia, is case where a Judge was asked to make a declaration in relation to parentage of a child.
The Judge looked at section 60H of the Family Law Act 1975 (Commonwealth).
In order to seek parenting declaration under section 60 H the following terms must be fulfilled:
What makes a relationship a de facto relationship?
The term de facto relationship is defined in the Family Law Act where a person is in a de facto relationship with another person and if the persons are not legally married to each other and they are not related by family and they lived together on a genuine domestic basis and have a relationship as a couple.
In addition, the court can consider whether 2 people are living in a de facto relationship by looking at any of the following:
In this case of Ms Freeman and Ms Bowman, the Court found that a de facto relationship existed at the time of conception and the Judge in this case looked at the time during which the parties live together, the degree of financial support provided and the support provided to the child after he was born and a degree of mutual commitment to a shared life existed.
The case of Gear and Anor and Faraday and Anor was a difficult case, which was determined by Her Honour Judge Henderson in Sydney in December 2015.
Although the 4 adults involved started with positive intentions, things soured quickly when the reality of parenting, decision-making and conflict of interests found that positive intentions were simply not enough.
What did the Court have to decide ?
Although these questions may appear simple on first reading, the truth is there is a level of complexity that the Court had to work through.
Her Honour (with possibly some level of frustration) stated the following:
“We have a situation of four adults who have no long-term relationship with each other, no experience in parenting a child together or having lived together in any domestic situation, no commonality of interest such as vocational hobbies, determining to have a child and since then setting it out in a written document how they would share the parenting of their child before the child’s birth. I recite these facts to support the reality that unsurprisingly co-parenting X has not progressed well at all.”
Her Honour found that although the four adults wanted what was best for X they saw what was best for him from their own individual filters.
It was certainly open to Her Honour to find that parental responsibility could be shared by three people, but in this case she found it was not in the best interest of X to have his biological father participate in the sharing of parental responsibility.
Cases involving artificial insemination, deciding who is a parent where people separate are fraught with complexities and issues that at times are beyond the scope of Family Law. The old -Chinese Proverb, comes to mind –
“when people sleep in the same bed but have different dreams then chaos and conflict ensues.”
The above is intended as information only. We specialise in same-sex relationship issues, including artificial insemination and parenting matters.
Please contact our Katy Jenkins for more information- firstname.lastname@example.org or call us on 02 8999 1800.
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