This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Birth registration and same-sex couples

Information about parentage issues for same-sex couples, including registering a birth.

The Assisted Reproductive Treatment Act 2008 that commenced on 1 January 2010 removed discrimination against gay and lesbian couples and single women by allowing access to fertility treatments. It also provided a way for non-birth mothers to be legally recognised and listed on the child's birth certificate. Also, altruistic surrogacy is now recognised, which gives gay men an option to become legal parents.

The VARTA and Rainbow Families Council has produced a kit for same-sex couples in Victoria, with tips and suggestions for parenting, see VARTA—Resource kit for rainbow families(opens in a new window)

Amending a birth certificate

Couples with children born before 1 January 2010 can apply to the Births, Deaths and Marriages registry to add the name of the non-birth mother to a child's birth certificate.

See Amending a birth certificate.

What is fertility treatment?

Fertility treatment is a procedure that is carried out in a clinic or at home through self insemination to conceive a child. The donor may or may not be known to the couple. Couples may not be legally protected if the child is conceived through sexual intercourse with a donor. There may be problems later if the donor wants to make a claim about parentage.

Access to fertility treatment after separation

From 24 September 2019, a woman who has separated from her partner will be able to access fertility treatment using donor sperm without first getting consent from their ex-partner. This change is effected by amending the definition of 'partner' to exclude a separated partner.

See s. 3—Assisted Reproductive Treatment Act 2008 (Vic)(opens in a new window).

According to the Status of Children Act 1974 the birth mother and the non-birth mother will be recognised as parents if they were in an existing relationship at the time that the child was conceived and the non-birth mother consented to the fertility treatment.

Registry of donors

Donor information is managed by the Births Deaths and Marriages registry. Details of donors will be sent to the registry if children are conceived with assistance from a Victorian fertility service. This information will be provided by the doctor or clinic. If the conception happens at home, the parents will need to provide donor details to the Registry themselves. This information will be listed in the records, but not on the birth certificate.

See the 'Information for donors' page on the Victorian Assisted Reproductive Treatment Authority(opens in a new window) website.

A child's right to know

Children who have been conceived through donation have the right to know about their biological origins when they are 18 years old. Children who are younger than this may get information if their parents agree.

However the available information will depend on when they were conceived. A voluntary register was established in Victoria in 1988. Before this time many donors remained anonymous. Children born before this date may seek information from this voluntary registry, but there is no guarantee that it will be available. Information could not be released without the donor's consent.

This voluntary register could include information about half biological siblings. Donors are still able to provide this information to the registry, even where donations were made before 1988.

From 2002 donors were required to make their details available if they donated eggs or sperm through fertility clinics.

See the 'Information for donors' page on the Victorian Assisted Reproductive Treatment Authority(opens in a new window) website.

Note: The law changed on 1 March 2017 to make it easier for people conceived through a donation before 1988 to find out information about their donors.

See Locating donors, birth parents or adopted child.

Donor has been found to be a parent

A High Court case in June 2019 has held that a man who had donated semen for the artificial conception of a child by a friend who was:

  • named on the birth certificate
  • had provided financial support for the child
  • actively involved with the child

was a 'parent' of the child even though he fell outside of the terms of section 60H of the Family Law Act (that deals with children born as a result of artificial conception).

In this case the child was raised in a same sex family who had planned to move overseas. The donor instituted proceedings under the Family Law Act 1975 seeking to have shared parental responsibility conferred on him and to stop the couple and their child from moving overseas.

See Masson v Parsons [2019] HCA 21 (19 June 2019)(opens in a new window).

More information

Legislation

Assisted Reproductive Treatment Act 2008 (Vic)

  • s. 3—defines 'assisted reproductive treatment', 'embryo', 'partner' and 'gamete' (ovum or sperm)
  • Part 2 Division 3—sets out the requirements for donors
  • s. 19—requirements for giving information
  • s. 18—a person must have counselling before they give consent to be a donor
  • s. 51—information that must be given to the Registrar (of births, deaths and marriages) by fertility clinics
  • s. 52—information that doctors must provide to Registrar
  • s. 53—registrar to keep central register
  • s. 55—information that must be given to donors by assisted reproduction (ART) clinics

See Assisted Reproductive Treatment Act 2008 (Vic)(opens in a new window).

Assisted Reproductive Treatment regulations 2019 (Vic)

  • Schedules—consents to treatment and donation of embryos and gametes and information that must be recorded

See Assisted Reproductive Treatment Regulations 2019 (vic)(opens in a new window).

Status of Children Act 1974 (Vic)

  • part lll—status of children—medical procedures for women with a female partner or without a partner
  • part lV—status of children in surrogacy arrangements.
  • 45—transitional—application of part lll

See Status of Children Act 1974 (Vic)(opens in a new window).

Family Law Act 1975 (Cth)

  • s. 60H—children born as a result of artificial conception

See Family Law Act 1975 (Cth)(opens in a new window)

Case law

The High Court held that a man who had donated semen for artificial conception of a child by a friend, who had been named on the birth certificate, provided financial support for the child, and had been actively involved with the child was a 'parent' of the child, even though he fell outside the terms of s. 60H of the Family Law Act 1975 (Cth).

See Masson v Parsons [2019] HCA 21 (19 June 2019)(opens in a new window).

Reference

Victorian Assisted Reproductive Treatment Authority

This statutory authority provides independent information and support for individuals, couples and health professionals on fertility issues related to assisted reproductive treatment. They have fact sheets and information about fertility, donor conception, assisted reproductive treatment and surrogacy.

See Victorian Assisted Reproductive Treatment Authority(opens in a new window)

Births, Deaths and Marriages Victoria

See Births Deaths Marriages Victoria—Correct a birth certificate(opens in a new window).

Updated