Who are the Parents in a Same Sex Relationship?

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Case Review: Aldred & Warburg [2020] FCCA 2524 (10 September 2020)

A recent case of the Brisbane Federal Circuit Court has again brought to light ongoing questions about a same sex relationship and the Family Law’s definition of a ‘parent’.

Extended Definition of “Parents” in Artificial Conception Cases

In 2008 the Family Law Act was amended to reflect the inclusion of parents through ‘artificial conception’, however this definition was, from a practical implementation, presumptive of a use of IVF or other formal medical treatment in conception for same sex couples. Due to the expense of these treatments, some couples choose to fall pregnant through alternative means.

When a Child is Not Conceived via Artificial Conception

The case of Aldred and Warburg is such as case. A female same sex couple conceived two children in as many years. Ms Aldred believed this had been done by agreement between the couple and through the parties impregnating Ms Warburg privately (i.e. not with the assistance of an IVF clinic) using the semen of a man they had met online. Ms Warburg asserted, following separation, that both children had in fact been conceived when she was unfaithful to Ms Aldred and had sex with two different men on multiple occasions.

The ways in which the Act deems a person to be a parent when a child was conceived through artificial conception (Section 60H) are relevantly:

If a child is born to a woman as a result of artificial conception when the women is married to or in a de facto relationship with another person (“the other intended parent”) and the woman, the other intended parent and any other person who provided genetic material used in the procedure consented to the procedure, then whether or not the child is biologically a child of the woman or the other intended parent, the child will be considered the child of the woman and the other intended parent and the other person contributing genetic material is not.

Section 60H of the Act focuses on artificial conception being a joint venture. As in this case conception was not achieved through artificial conception (as defined by the Act) and it was alleged that there was no joint venture (as Ms Warburg said she was impregnated separately to anything Ms Aldred knew) Ms Aldred could not meet the law’s presumption that she was a parent. 

Aldred & Warburg [2020]

Given the above definition and reasoning, the Court ruled that as Ms Aldred did not have firsthand knowledge or evidence of how the children were conceived, she only believed what Ms Warburg had told her at the time and Ms Warburg was now giving evidence that the children were conceived through sex with a man, it is most likely that the children were conceived between Ms Warburg and a man through their separate relationship and not with the knowledge or agreement of Ms Aldred. Therefore, Ms Aldred did not fit into the section 60H definition of a parent.

Adult Concerned in the Welfare of a Child

Despite this ruling, Ms Aldred could still make an application for the care of the children pursuant to section 65C of the Act, as a party concerned with the care of the children. The Court made Orders for the children to live with Ms Warburg as the primary parent but spend consistent time with Ms Aldred.

However, the presumption with regard to Equal Shared Parental Responsibility (i.e. making big decisions such as school, religion and medical procedures) between parents could not be applied by the Court because Ms Aldred was deemed under the Act to not be a parent.

It is still possible for a parent and another person (whether it be a grandparent, or a person concerned with the care of a child) to be granted equal shared parental responsibility. In this case, ultimately the court granted sole parental responsibility to Ms Warburg because the court did not believe that the parties could co-parent effectively and Ms Warburg was not disputed to be the current primary carer of the children.

Interpreting the Family Law legislation, particularly in relation to same sex couples and conception, can be tricky. If you, a partner or a friend are thinking about or beginning the process of conceiving through alternative means, whether due to being in a same sex relationship or other needs for IVF or personal implantation, contact our office first to discuss your rights and responsibilities.

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