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The laws you need to know about

It’s very important that you understand all the relevant laws and how they might affect you, depending on the decisions you make about how to create your family.

The Victorian Assisted Reproductive Treatment (ART) Act 2008 (in effect since 1 January 2010) gave lesbians and single women equal access to fertility services without the need to prove ‘medical infertility’. In particular it opened up access to donor insemination using clinic-supplied donor sperm, or stored and screened sperm from your known donor or co-parent.

In addition, the ART Act recognised lesbian couples as equal legal parents of their child/ren, provided they were in a ‘domestic partnership’ (the Victorian legal equivalent to what federal law calls a ‘de facto’ relationship, although the criteria might differ slightly) and the non-birth mother consented to the ‘treatment’, including home insemination, that resulted in conception.

If you conceive with a donor (known or clinic-recruited), he is presumed not to be the child’s father, unless you conceived through sex with him. Victorian law also protects children’s right to information (stored by the Victorian Registry of Births, Deaths and Marriages) about their donor at age 18, or earlier with parental consent or once assessed as sufficiently mature by a counselor.

When considering your options for donor conception, it is important to know how family law works in Australia. You will be your child’s legal parents, but anyone with ‘an interest’ in a child’s welfare (such as a grandparent, step-parent or known donor) can apply for a court order creating contact or other arrangements with regard to the child. You can make your own written agreement with your donor about issues like how much time he spends with the family, and we recommend that you do. But these agreements are not legally binding, should there be a dispute. You cannot make a legally-enforceable contract or agreement (written or verbal) about a child.

A court will always act in what they consider a child’s best interests. They cannot change the legal parentage of a child (except in the case of surrogacy and adoption) but if they consider it in a child’s best interests, they could grant contact, and in some cases even some parenting responsibilities, to a donor.
The situation for women who choose to co-parent with a man (and his partner if he has one) is potentially even more complex – see Legal parentage and other roles.
NextConception with a clinic-recruited donor

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We are a volunteer community organisation based in Victoria, Australia. We support and promote equality for ‘rainbow’ families (parents and prospective parents who identify as lesbian, gay, bi, transgender or intersex, and their children).