IVF Children and Family Provision Claims: How far does the umbilical cord stretch?

How does, and will the law around Testators’ Family Maintenance (TFM) treat children from donated embryos with respect to family provision claims? Do donors need to be cautious about potential future provision claims against their estate from biological children who are the result of a donated embryo?

Whilst these questions have not been judicially determined, the position in all states as the law currently stands appears to be that a child from a donated embryo cannot make a claim for family provision against the biological parents. However, with the developing science and emerging family provision claims, there appears to be scope for this to be revisited, and perhaps changed in the future. We consider this in turn below.

Introduction

Historically, in the 18th century, the principle of individualism led to the growth of the idea of testamentary freedom. A Will could only be invalidated by challenging the testator’s testamentary capacity, and this high standard resulted in ‘plainly unjust cases where widows and children were left in dire circumstances by testators irresponsibly or arbitrarily exercising their absolute testamentary freedom’.¹

Enter the 20th century — societal norms changed and the ideals of liberal individualism gave way to a more progressive society and with it, many countries, led by New Zealand, adopted a TFM regime to limit the extent of testamentary freedom of the years past.² The TFM policy grew out of the women’s rights movement, and sought to curtail testamentary freedom to address the vulnerability of women and children.³

Another century has passed, and now there are question marks over how our current TFM legislation will deal with new societal phenomena. In particular, there are questions surrounding how the law will apply to children born through IVF in circumstances where the embryo has been donated.

Since IVF led to the first birth in Australia in 1978, technology has improved exponentially — the availability of the procedure has scientifically and commercially improved and it has become more accessible to the general public. In 2019, there were 15,158 babies born through IVF in Australia, with the number of treatments in 2019 having increased by 6.2% from the previous year.⁴ As technology advances and societal norms progress, embryo donation will grow.

The law

To take Victoria as an example, a biological child is eligible to apply to seek (further) provision from their parent’s estate under the TFM legislation, subject to satisfying the Court that the deceased had a moral duty to provide for their ‘proper maintenance and support’.⁵

A ‘child’ is not defined in the legislation. However, Victorian Parliament has determined that the following irrebuttable presumptions ‘for all purposes’ apply to the parentage of children in the cases of donor sperm and/or ovum:

1. Where a married woman, with the consent of her husband, has undergone a procedure which has results in her becoming pregnant through artificial insemination (using donor sperm), the biological father is taken to not be the father;⁶
2. Where a married woman, with the consent of her husband, has undergone a procedure which implants a fertilised embryo (derived from her own ovum and donor sperm) which results in her becoming pregnant, the biological father is taken to not be the father;⁷
3. Where a married woman, with the consent of her husband, has undergone a procedure which implants a fertilised embryo (derived from a donor ovum and donor sperm) which results in her becoming pregnant, the biological parents are taken not to be the parents;⁸
4. Where a woman with a female partner, with the consent of that partner, has undergone a procedure (using donor sperm) which results in her becoming pregnant, the biological father is taken not to be the father;⁹
5. Where a woman with a female partner, with the consent of that partner, has undergone a procedure implants a fertilised embryo (derived from a donor ovum and donor sperm), the biological parents are taken not to be the parents;¹⁰
6. Where a single woman undergoes a procedure which results in her becoming pregnant using donor sperm, the biological father is taken not to be the father, whether or not the biological father is known to the mother;¹¹ and
7. Where a single woman undergoes a procedure which implants a fertilised embryo (derived from a donor ovum and donor sperm) which results in her becoming pregnant, the biological parents are taken to not be the parents.¹²

As these presumptions are ‘for all purposes’, they would be taken to apply to the definition of children for the purposes of the ‘eligible person’ requirement to make a TFM application. Therefore, biological children in donation circumstances would not be able to progress to the ‘moral duty’ test under the TFM legislation, simply because of their genetic link to the deceased donor. Accordingly, an IVF child seeking to make a claim under the TFM legislation would need to establish that they are eligible on another ground that is not based on the fact that they are a ‘child’ of the deceased donor.

What does the High Court say?

In Masson v Parsons¹³ the High Court considered a case where two females in a relationship had a child using donor sperm, where they knew the biological father and he remained involved in the child’s life.

The two female parents of the child wanted to relocate to New Zealand and the biological father, having had a close relationship with the child, opposed this. He applied for and was granted a parenting order under the Family Law Act 1975 (Cth) by the Family Court of Australia, and this was affirmed by the High Court on appeal.

The two female parents of the child sought to rely on the New South Wales equivalent legislation with the irrebuttable presumptions discussed above.¹⁴

The Court said that the presumptions in this form of legislation:

[a]re ‘irrebuttable’ rules determinative of a status to which rights and duties are attached. In particular, [the Act] operate as an irrebuttable rule of law that, in specified circumstances, the biological father of a child born as a result of a fertilisation procedure is not the father of the child. That is not a law relating to evidence or otherwise regulating the exercise of jurisdiction. It is a rule of law determinative of parental status …¹⁵

In deciding that the biological father was eligible and was entitled to be granted the parenting order, despite the fact that he otherwise was irrebuttably presumed not to be the father, the High Court considered constitutional principles with respect to the application of state law to federal Family Law legislation. The Court was not asked to determine whether there were exceptions to the ‘irrebuttable’ presumptions, or whether the state law was invalid.

Because the federal legislation was comprehensive, the state legislation could not usurp it nor determine federal family law matters, under which parenting orders fell. Therefore, interestingly for our present discussion:

1. on the one hand, the High Court determined that the biological (donor) father had rights over the child; yet
2. on the other hand, the child does not have rights to make a claim for provision under the state TFM legislation against their biological (donor) father’s estate.

Since the TFM legislation is state legislation, it is free to apply to family provision matters in the manner in which the state parliament decides, without any constitutional impediment.

Concluding remarks

The position seems to be currently that children born through IVF cannot bring a TFM claim against the estate of their biological ‘donor’ parent. That being said, it is open for parliament to redefine the limits of its TFM legislation, or to redraw the legal definition of a ‘child’.

A closed door at the moment, but time will tell if Masson v Parsons (and any other subsequent decision) might yet unlock it…

This article was written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Matthew Carlei, Law Graduate.

¹Sylvia Villios and Natalie Williams, ‘Family Provision Law, Adult Children and the Age of Entitlement’ (2018) 39(2) Adelaide Law Review 249, 250.
²Ibid 250–2.
³Tihana Mandic, ‘Family Provision Law in New South Wales: Celebrating its Centenary’ (2017) 91(9) Australian Law Journal 769, 769.
⁴Jade E Newman, Repon C Paul and Georgina M Chambers, Assisted Reproductive Technology in Australia and New Zealand 2019 (Report, September 2019) 4.
⁵Administration and Probate Act 1958 (Vic) s91(2)(b)–(c).
⁶Status of Children Act 1974 (Vic) s10C.
⁷Ibid s10D.
⁸Ibid s10E.
⁹Ibid s13.
¹⁰Ibid s14.
¹¹Ibid s15.
¹²Ibid s16.
¹³(2019) 266 CLR 554.
¹⁴Status of Children Act 1996 (NSW) ss14(2), (4).
¹⁵(2019) 266 CLR 554, 576–7 [34].