It was reported that in 2018, there were 14,355 babies born through IVF in Australia. That is almost one in 20 babies.[1]

So, what is IVF?  IVF Australia provides the following definition: “IVF (In Vitro Fertilisation) is a procedure, used to overcome a range of fertility issues, by which an egg and sperm are joined together outside the body, in a specialised laboratory. The fertilised egg (embryo) is allowed to grow in a protected environment for some days before being transferred into the woman’s uterus increasing the chance that pregnancy will occur.”

When a child is conceived through IVF, you may be wondering what your parental rights are.

Section 60H of the Family Law Act 1975 provides clarity on the parents of a child conceived by ‘artificial conception procedure’. Put simply: –

  • if a child is born to a woman as a result of an artificial conception procedure and the woman is partnered (married or de facto); and
  • the woman’s partner consents to the procedure; and
  • the provider of the genetic material consents to the use of their genetic material

then the child who is born is the child of the woman and her partner.

This approach is also taken when determining if a party is eligible to pay or receive child support. The Child Support (Assessment) Act 1989 provides that an eligible person is a parent. A parent is described as “means: …

  1. When used in relation to a child born because of the carrying out of an artificial conception procedure – means a person who is a parent of the child under section 60H of the Family Law Act 1975…”

Below, we have created some scenarios to determine if a person will be the presumed parent of a child conceived through IVF: –

  • Emma and Jarrod have been married for five years and have been unable to conceive a child. Emma and Jarrod have both decided to ask their long-time friend, Liam, to provide sperm for Emma to conceive a child. Liam has known Emma and Jarrod’s struggles to conceive and agrees. Emma gives birth to Mia from this process. Emma and Jarrod are parents of Mia.
  • Noelle and Sally have decided to use a sperm donor to conceive a child. Noelle falls pregnant with their son Simon. Noelle and Sally are the parents of Simon.
  • Lorna and Xavier have been married for nine years. Lorna wants to start a family, but Xavier does not want children due to his work commitments. Lorna, without Xavier’s consent, uses a sperm donor to conceive a child, Vanessa. It is presumed that Xavier is the parent of Vanessa unless it is proven, on the balance of probabilities, that Xavier did to consent to the procedure.

If you require any advice about separation and parenting if there is a child conceived through IVF, please contact our office today to speak with one of our solicitors.

[1] “Assisted Reproductive Technology in Australia and New Zealand 2018” Report – National Perinatal Epidemiology and Statistics Unit, UNSW.