This article is based on Victorian Legislation.
In a controversial and much-discussed ‘Monash IVF’ incident, it appears that an embryo from another couple was accidentally implanted into the woman who gave birth.
This hot news story about the mix-up of embryos is one that has raised many questions. Who are the parents? The biological parents or the parents who carried the child? How does the law handle parentage in assisted reproduction?
In Victoria, there is a very powerful piece of legislation called the Status of Childrens Act 1974 (Vic) which sets out various presumptions around parentage in circumstances involving:
1. embryos/ovum used irrespective of source; and
2. sperm used irrespective of source;
The presumptions vary based on the nature of the relationship between parent(s). The Act provides that all children, including children created by presumptions under the Act, are treated as if they are children unless a contrary intention appears.
For succession law purposes, this means a child as a result of the presumptions under the Status of Childrens Act is considered a child for estate purposes, such as in the estate of a person who dies intestate, or for making claims for further provision under Part IV of the Administration and Probate Act 1958.
Medical Procedures – Women with a Male Partner
Section 10E of the Status of Childrens Act 1974 applies to cases involving the implantation of an embryo derived from an ovum produced by another woman. It includes cases where the ovum is fertilised with sperm, produced by the male partner or another man.
Where the woman has undergone the procedure with the consent of her male partner, then the law creates a presumption that the woman is the mother of any child born as a result of the pregnancy and that the male partner is the father of the child. Conversely, the women who produced the ovum and male who produced the sperm are both presumed not to be the parents of any child born as a result of the pregnancy.
The presumptions are important, because they are irrebuttable presumptions, which prevail over conflicting evidence of parentage or orders
Evidentially, the male partners consent to the procedure is presumed at law but can be rebutted with sufficient evidence. This means there would need to be cogent evidence that the male partner did not consent to the procedure to be presumed the husband.
Section 10D of the Status of Childrens Act 1974 applies to cases involving the implantation of embryos fertilised with donor sperm, which again cause the male partner to be presumed as the father.
Section 10C of the Status of Childrens Act 1974, if a woman undergoes artificial insemination with the consent of her male partner, that partner is presumed, for all purposes, to be the father of any resulting child.
Sections 10C – 10E also include the counter-presumption, that being, the person who donated the ovum or sperm are presumed to not be parents for the purposes of the legislation.
Despite the error allegedly caused by Monash IVF, the legal parentage presumptions under the Act may still apply, as long as the woman and her partner consented to the procedure in line with the statutory requirements – notwithstanding that it was the ovum or embryo of another person - they will be presumed as the parents.
Medical Procedures – Women with a Female Partner or No Partner
Similar presumptions arise in same sex relationships (Section 13 of the Status of Childrens Act 1974) involving women with female partners in that:
1. The women to be a mother of any child born as a pregnancy and the women’s female partner is presumed to be a legal parent of any child born as a result of the pregnancy if the female partner consented to the procedure; and
2. The man whose semen is used in the procedure is presumed not to be the father as a result of the pregnancy.
The presumption that arises at law is irrebuttable.
Where a woman does not have a partner, the presumptions are that:
1. If a woman becomes pregnant as a result of a procedure (whether or not using a donor ovum), she is presumed to be the mother of any child born as a result of the pregnancy;
2. the man who produced the semen is presumed not to be the father of any child born as a result of the pregnancy, and
3. if a donor ovum was used, the donor is not the mother of any child born as a result of the pregnancy.
The presumption that arises at law is irrebuttable.
The legal presumptions following IVF or similar procedures are confusing. If you need advice about complex family dynamics, our lawyers are experts in complex estate planning and can advise on all matters related to estate planning or estate litigation involving children.
