Who is a Parent??
Modern families come in all shapes and sizes. The traditional definition of who a ‘parent’ has been challenged by the increasing number of single-parent families, adoptive parents, surrogate parents and extended families.
Recent advances in medical science have complicated things further. On 6 April 2016, the first child in the world with three parents was born. A Jordanian couple had been unable to start a family for 20 years, due to a rare genetic disorder carried by the mother. Doctors used a newly developed technique called Mitochondrial Replacement Therapy to implant the genetic material of a third person into the embryo, ensuring that the child did not receive the portions of the mother’s genetic material that could cause the disorder. Being the first child in the world born this way, the baby was dubbed the world’s first ‘three parent’ child.
But how many legal parents does the child born on 6 April 2016 have, and why would it matter?
In Australia, being a parent has important consequences. Parentage confers obligations or responsibilities on a parent, rather than rights.
However, parents do have a right to participate in making important decisions about their children. Section 61DA of The Family Law Act 1975 (Cth) (“the Family Law Act”) directs that when a Court makes an Order about the parenting of a child, the Court must presume that it is in the best interest of the child for their parents to have equal shared parental responsibility.
Parental responsibility is the ability to participate in making decisions about major long‑term issues which affect a child, such as where a child lives and goes to school.
Being a parent of a child also creates obligations under the Child Support (Assessment) Act 1989.
So how can you be sure if you are a parent?
Although most parents have little doubt who their children are, disputes relating to parentage are not uncommon in Family Law. When they arise, they nearly always relate to the identity of the male parent.
The starting point for a paternity dispute is often one of the ‘presumptions of paternity’. Section 69 of the Family Law Act sets out a number of circumstances in which a man will be presumed to be the father of a child, which include;
- Section 69P, which applies where a man is married to the mother;
- Section 69Q, which applies where a man lived with the mother between 44 and 20 weeks before the birth of the child; and
- Section 69S, which applies where a Court has made a determination that the man is the father of the child.
Each of these presumptions can be rebutted if the evidence available to the Court indicates that the presumption is unlikely to be true when considered ‘on the balance of probabilities’. If there is a lack of evidence, s69W of the Family Law Act enables the Court to require a party to proceedings to undergo a parentage test.
The Family Law Act also reduces uncertainty regarding the parentage of children born as a result of ‘artificial conception procedures’. Section 60H of the Family Law Act provides that if a woman gives birth as a result of an artificial conception procedure, she and her husband or de-facto partner will be parents of the child, provided that they consented to the procedure and they also obtained the consent of the person who provided genetic material. The person who provided the genetic material for the procedure will not be a parent.
In The Marriage of P and P (1997), the Family Court of Australia considered the status of a couple who had been trying to have a child through the use of donor sperm for some time. During a turbulent time in the relationship, the husband told his wife that he wanted her to stop undergoing artificial insemination procedures. Unbeknown to him, the wife underwent the procedure one month later and fell pregnant. Years later and after the husband and wife separated, the husband sought contact with the child.
The Court found that, because the husband had withdrawn his consent to the procedure at the time it had occurred, he was not a parent of the child under s60H. The husband could not seek Orders to have contact with the child.
Section 60H was enacted in contemplation of more common artificial conception procedures, such as sperm donation and IVF, but would also apply to the Mitochondrial Replacement Therapy that was used to create the ‘three parent baby’. So despite having the genetic material of three people and being a world first, under Australian law, the child born on 6 April 2016 has only two legal parents.
If you are unsure of your rights and obligations in relation to your children, we encourage you to contact our Family Law Team.