A & B v C

In this matter, the Court was presented with an application for orders under the Status of Children Act 1978 that a person, referred to as “B” is a legal parent of two children born to the biological mother, “A”, using sperm from a known donor.  B and A were in a same sex relationship.  Further orders were sought that the Register of Births be corrected to show B and A as the parents of the two children.  The application followed certain legislative changes in 2010 to recognise retrospectively that the two women, and the children which they had planned, have the same rights as if they had been born to a heterosexual couple using donated gametes.  It was not in dispute that C was the donor of the sperm and the biological father of each child.  Unrepresented, C appeared at the hearing of the application and indicated that he would abide the order of the Court, but he did not consent to the orders. He had not been in any relationship with the biological mother nor with B.  He had been contacted through a “gay community website” in A and B’s local area.  At the time of the birth of the first child, same sex de facto relationships were not recognised by State or Commonwealth law.  Consequently, there was no method by which B could have been recorded as a parent on the certificate.  A claimed that she named C as the father on the child’s birth certificate because her failure to do so would have adversely affected her social security benefits.

Ann Lyons J was required to apply the provisions of the Surrogacy Act which commenced on 1 June 2010 and which had made significant changes to the Status of Children Act and the Births, Deaths and Marriages Registration Act 2003.  The Surrogacy Act provides that persons in the position of the applicants were capable of being registered as “mother” and “parent” of the child and that the donor male was to have no rights or liabilities with respect to the child.  It would appear that an irrebuttable presumption is imposed by s 19C of that Act to the effect that the de facto couple are the parents of the child.  By reason of the Status of Children Act the provisions of the Surrogacy Act applied to de facto couples.  Under the Births, Deaths and Marriages Registration Act a rebuttable presumption arose to the effect that the persons named on the birth certificate were the parents of the child.  By an unusual provision in s 30 of the Status of Children Act it was provided that where two conflicting presumptions arise, it is for the Court to determine which presumption is “most likely to be correct”. 

It was held that the presumption that the de facto same sex couple were the parents of the children was more likely to be the correct presumption.  Given the above, and holding that the Register of Births, Deaths and Marriages should be “complete and accurate” it was ordered that the children’s birth certificates should show the de facto same sex couple as the parents of the children and that there should be no reference to C who was the biological father.  It was recognised that the Register under the Act was not a register of genetic material.