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Tuesday, 10 September 1985
Page: 404

(Question No. 45)


Senator Puplick asked the Minister representing the Attorney-General, upon notice, on 28 February 1985:

(1) What is the legal status of children born in the Australian Capital Territory by:

(a) artificial insemination donor procedures;

(b) in vitro fertilization (IVF) procedures using sperm donated by a person other than the husband of the woman concerned; and

(c) IVF procedures using an ovum produced by another woman and fertilized by sperm produced by the husband of the woman who gives birth to the child.

(2) In what way, if any, does the status in law of such children in the ACT differ from their status in either New South Wales or Victoria.


Senator Gareth Evans —The Attorney- General has provided the following answer to the honourable senator's question:

(1) There are no statutory provisions regulating these matters in the Australian Capital Territory. The House of Assembly currently has before it a draft Ordinance prepared in my Department which deals with the status of children born as a result of AID or IVF procedures. In the absence of statute, the basic position at common law is that a child born of a married woman is presumed to be a legitimate child of the marriage, but that presumption may be rebutted by evidence to the contrary. Pending the making of the Ordinance the position in the Australian Capital Territory is as follows:

(a) and (b) Child born to a married woman as a result of AID procedures: Child born to a married woman as a result of IVF with donated sperm:

Although there is no express authority on the point, it is considered that the child would be presumed to be the child of the husband and legitimate unless the presumption is rebutted by evidence sufficient to displace the presumption.

(c) Child born to a married woman as a result of IVF with her husband's sperm and donor ovum: Whether the child would be regarded as the legitimate child of the marriage would seem to depend on whether the courts would treat the child as the child of the ``genetic'' mother or the ``gestational'' mother. There is no authority on this point in Australian or English law. In the absence of proof that the child was born as a result of the use of IVF procedures involving donor ovum, it would seem that the child would be presumed to be the legitimate child of the marriage.

(2)-(a) and (b) Child born as a result of AID or IVF with donated sperm: In New South Wales, in the case of a child of a married woman, the status of the child is regulated by the Artificial Conception Act 1984 which provides, among other things, that if the husband consents to the procedure he is irrebuttably presumed to be the father. In that case, the child is legitimate. The position in Victoria is similar, under the Status of Children Act 1974 as amended by the Status of Children (Amendment) Act 1984.

(c) Child born to a married woman as a result of IVF with her husband's sperm and donor ovum: The New South Wales Artificial Conception Act 1984 does not deal with this situation. The position is presumably the same as in the Australian Capital Territory. In Victoria, the Status of Children Act 1974 as amended by the Status of Children (Amendment) Act 1984 provides that the married woman is irrebuttably presumed to be the mother of the child and the husband is irrebuttably presumed to be the father of the child, provided that the husband has consented to the procedure. The child is legitimate.