View more from News & Articles or Primerus Weekly

By: HHG Legal Group
West Perth, Australia

In Western Australia, section 53I of the Human Reproductive Technology Act 1991 (WA) prohibits the use of DNA of more than two people to create an embryo.  Other Australian states and territories have equivalent provisions. The Australian Government may reconsider this ban, following the recent UK House of Commons vote in favour of relaxing artificial reproductive technology laws to allow research into the creation of embryos using DNA from three people.  The impetus behind this change is to allow the development of and research into techniques that utilise DNA from three people with a view to preventing children inheriting a mitochondrial disease.

Mitochondrial disease is the name given to a group of genetic disorders passed from mothers to children.  Symptoms are variable, but include difficulties in mobility, multi-organ failure and heart, liver and muscle conditions.  The condition has no single treatment and no cure – hence treatment is focussed on prevention strategies, which include manipulation of DNA to prevent transmission.

The procedure in question involves removing the small amount of defective genetic material from the affected mother’s DNA and replacing that material with healthy DNA from a female donor.  That donor contributes approximately 0.2% of the total DNA to the embryo.  The child will effectively therefore have the genetic material of two mothers and one father.  The now healthy DNA will be passed on to the child and the risk of mitochondrial disease hopefully removed for that child and all subsequent generations.

The obvious question this raises for family law in Australia is “can a child have three parents”?

Definition of a Parent

The issue of determining who is a parent to a child arises because some of the provisions of the Family Law Act 1975 (“the Act”) apply to parents only – despite the fact that the Act does not actually define “parent”.  In particular the concept of a “parent” is critical to section 61C of the Act, which relates to parental responsibility and to section 61DA which sets out the presumption of equal shared parental responsibility.

Presumptions of Parentage

The Act contains a number of presumptions of parentage – this means that in certain situations it is presumed that a person is a parent of a child in without any other evidence.  Those situations are as follows:

1) where a man was married to the mother and the child was born:

  1. during their marriage
  2. within 44 weeks of the marriage ending by death or annulment
  3. if the couple separated but then lived together again for less than three months and the child was born within 44 weeks

2) where a man cohabited with the mother (but they were not married) at any time from 44 to 20 weeks before the child was born.

3) where a man is on the Birth Certificate as the father or has signed a legal document (such as a statutory declaration) swearing that he is the father.

4) where a Court has made a statement in the past that the man is the father.

These parentage presumptions are rebuttable.  This means that a person can provide evidence to disprove a presumption of parentage.

Assisted Reproductive Technology

We as a society have now moved beyond a situation where children are born to one woman and one man in the context of a marriage.  There is now a diversity of family structures and situations.  They include:

  1. Two biological parents
  2. One biological parent
  3. A biological parent and a nonbiological parent of the opposite sex
  4. A biological parent and a nonbiological parent of the same sex
  5. Two lesbian parents each of whom has had a biological child within their relationship
  6. More than two parents (a lesbian couple and the biological father or a gay male couple and a surrogate mother who maintains a relationship with the child).[1]

The Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 introduced amendments to Section 60H of the Act in an attempt to address parentage in situations where children are born as a result of assisted reproductive technologies.  Specifically Section 60H deals with who is actually a parent in such situations, as follows:

1)    If the woman was either married or living with a partner on a genuine domestic basis (section 60H(4)) at the time the artificial conception occurred, then, if the procedure was carried out either with the consent of the woman and her partner the child is presumed to be the child of both the woman and her partner, regardless of the fact that the child is not biologically the child of the woman and her partner (section 60H(1)).

2)    If a man and woman are living together on a genuine domestic basis, or are married, the consent element is presumed unless and until the contrary is proved (section 60H(5)). See Re Michael:  Surrogacy Arrangements [2009] FamCA 691.

3)    If the donor of DNA material for a child born as a result of an artificial conception is not in a marriage or de facto relationship with the birth mother, then the child is not a child of the donor.

Section 60H presumes that a child that is born as a result of assisted or artificial conception will have DNA material from two people rather than three.  If a child is born as a result of assisted conception involving three parents, as is contemplated by the mitochondrial disease research that has been approved in the UK, there may well be a need to amend the Act further to cover such a scenario.  Watch this space!

For more information about HHG Legal Group, please visit the International Society of Primerus Law Firms.


[1] Lane, B (September 2010) Who is a parent?  Australian Family Lawyer Vol 21 No 2 page 3