The Family Law Act of Australia governs aspects of the rights and obligations of the parents of a child, including adoption and surrogacy.
It may be evident as to the definition of a parent to a child, however, in recent years, the definition of a “parent” may be disputed by one person whereby that one person disputes that that person is the biological parent of a child.
Under the Family Law Act, if a child is born to a woman while that woman is married, that child is presumed to be the child of that woman and her partner (husband). This presumption also applies in situations where the mother is not married, but in a de facto relationship, with the alleged father. In this case, the woman must cohabit with a man at any time during the period beginning not earlier than forty-four (44) weeks and ending not less than twenty (20) weeks before the birth.
It may also be relevant to consider the name of the parents who are named in the birth certificates as an indication of an acceptance that the child is theirs, especially where the birth certificate is signed by those parents.
In a dispute where the child, who is not adopted and is not born by artificial means, is in dispute as to paternity, the Court may order parentage testing of the parties in order to determine if the child is a child of the father. Such an order may be made by the Court, at its own initiative, if family law proceedings have been commenced, or by an application made by a party to the proceedings.
In practical terms, the Court may order a blood test or a DNA test in order to make that determination.
Importantly, the Court is less likely to order for a paternity test where no other family law proceedings have been commenced. The Court may order paternity tests only where other family law proceedings are in foot and in dispute. Parenting and parental child support proceedings are often associated with such testing.
Surrogacy and artificial insemination
“Artificial conception” is defined as a means by which a child may be conceived, other than through sexual intercourse.
A child, in this case, may be conceived by the semen of a male donor, or the egg from either the mother or another woman. Such a child may not necessarily be biologically related to such parents but they are deemed to be responsible for the child.
The question of who is the parent of a child born as a result of surrogacy and/or artificial insemination is often a question posed in Courts.
On the other hand, surrogacy is another form of assisted reproduction where a child is born by means other than through sexual intercourse.
The distinction in surrogacy in Australia is:
1) Altruistic surrogacy; and
2) Commercial surrogacy.
Altruistic surrogacy is where reasonable costs and expenses are paid to the person carrying the baby to term.
Commercial surrogacy involves payment beyond the reasonable costs and expenses. There are laws which permits altruistic surrogacy and outlaws commercial surrogacy.
In Australia, the process of adoption varies from state to state. There are two types of adoption.
1) Intercountry adoption – where a child is adopted from another country by an Australian citizen or a permanent resident.
2) Local adoptions – where the adoption of a child who is born or permanently residing in Australia, but who are generally had no previous contact or relationship with the adoptive parent. In NSW, local adoptions are conducted by making an application through the Supreme Court of New South Wales.