Schedule 2 Amendment of Status of Children Act 1996 No 76
(Section 4)
[1] Section 14 Presumptions of parentage arising out of use of fertilisation procedures
Insert after section 14 (1):(1A) When a woman who is in a de facto relationship with another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and(b) the woman who has become pregnant 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.
Insert “This subsection does not affect the presumption arising under subsection (1A) (a).” at the end of the subsection.
Insert after section 14 (5):(5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a fertilisation procedure that results in the pregnancy of her de facto partner is presumed.
Omit “living with a man as his wife on a bona fide domestic basis although not married to him”.Insert instead “in a de facto relationship with a man”.
Omit “living with another person of the opposite sex as his or her spouse on a bona fide domestic basis although not married to the other person”.Insert instead “in a de facto relationship with a person of the opposite sex”.
Insert after section 14 (6):(7) In this section:de facto partner, in relation to a person, means the other party to a de facto relationship with the person.
de facto relationship has the same meaning as in the Property (Relationships) Act 1984.
[7] Schedule 2 Savings and transitional provisions
Insert at the end of clause 1 (1):Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008, but only to the extent that it amends this Act
Insert after Part 2:Part 3 Provision consequent on enactment of Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008
7 Parentage presumption to apply in relation to fertilisation procedures occurring before commencement
(1) The presumptions arising under section 14 (1A) in relation to a child born as the result of a fertilisation procedure, as inserted by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008, extend to a procedure undertaken, and a consent given, before the commencement of that subsection. This subclause applies even though at the time the consent was given the presumptions did not apply.(2) However, those presumptions do not apply so as to affect:(a) the previous operation of this or any other Act or law, or(b) any will executed before the commencement of section 14 (1A), or(c) the vesting in possession or in interest of any property before the commencement of section 14 (1A).(3) In this clause:will includes a codicil and any other testamentary disposition.
Section 14 of the Status of Children Act 1996 (the Act) set out a number of irrebuttable presumptions as to the parentage of a child born as a result of a fertilisation procedure. One of those presumptions is that a man who consents to his wife or de facto partner undergoing a fertilisation procedure, even if the procedure involves the use of another man’s sperm, is presumed to be the father of any child born as a result of any pregnancy arising from the procedure (see section 14 (1) (a) and (6)). Another of the presumptions is that a woman who is married to, or in a de facto relationship with, a man and becomes pregnant as a result of the use of another woman’s ovum is presumed to be the mother of any child born as a result of the pregnancy (see section 14 (1) (b) and (6)).Item [1] of the proposed amendments to the Act provides for the extension of both of those irrebuttable presumptions to a child born in the context of a de facto relationship involving 2 women. Firstly, it provides that a woman who consents to her female de facto partner undergoing a fertilisation procedure is presumed to be a parent of any child born as a result of any pregnancy arising from the procedure. Secondly, it provides that a woman who is in a de facto relationship with a woman and becomes pregnant as a result of the use of an ovum other than her own is presumed to be the mother of any child born as a result of the pregnancy. Items [2] and [3] of the proposed amendments make consequential amendments.
Item [6] of the proposed amendments inserts definitions of de facto partner and de facto relationship for the purposes of section 14. The term de facto relationship is defined to have the same meaning as in the Property (Relationships) Act 1984. Items [4] and [5] of the proposed amendments make consequential amendments.
Item [7] of the proposed amendments enables savings and transitional regulations to be made as a consequence of the enactment of the proposed Act (but only to the extent that it amends the Status of Children Act 1996).
Item [8] of the proposed amendments provides for the proposed parentage presumptions set out in item [1] to extend to a fertilisation procedure undertaken, and a consent given, before the commencement of the proposed amendments, but not so as to affect:
(a) the previous operation of any Act or other law, or(b) any will executed before that commencement, or(c) the vesting in possession or in interest of any property before that commencement.