It makes sense, right? The sperm donor is the genetic father of the baby, after all.
An example case in New South Wales where a gay couple entering an altruistic surrogacy arrangement, intend to be parents with a surrogate who is married. One of the gay couples is the sperm donor and the genetic father of the baby.
The question arose, who will be named on the child’s birth certificate?
The current presumption in Australian law is that the surrogate’s husband is the father at birth and will be named in the birth certificate.
In a scenario where he did not consent to the fertilisation procedure, and can demonstrate so, then he will not be held as the legal father.
The answer is contained in the Status of Children Act 1996 (NSW), section 14:
(1) When a married woman has undergone a fertilisation procedure as a result of which she
becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the
pregnancy even if he did not provide any or all of the sperm used in the procedure, but
only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the
pregnancy even if she did not provide the ovum used in the procedure.
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation
procedure using any sperm obtained from a man who is not her husband, that man is presumed
not to be the father of any child born as a result of the pregnancy.
(4) Any presumption arising under subsections (1)-(3) is irrebuttable.
The sperm donor is not the legal parent at birth – the surrogate’s husband is the father
In applying for a parentage order, s.38 of the Surrogacy Act 2010 necessitates that the child’s birth be registered in accordance with the Births, Deaths and Marriages Act 1995.
Parentage order
The purpose of a parentage order is to transfer the legal rights and responsibilities of parentage from the birth parents ie: the surrogate mother and her husband to the intended parents, the gay couple.
The offence
Due to the statutory presumption, the intended father should not be registered as the father on the birth certificate, and to do so is a criminal offence, under section 57 of the Births, Deaths and Marriages
Registration Act 1995 (NSW):
A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.
Maximum penalty: 100 penalty units or 2 years imprisonment, or both.
We are more than happy to provide you information regarding your enquiries for surrogacy agreements. For more information, please contact Jennifer Franco on 0420 411 881 or via our contact form.
