Victorian Consolidated Legislation

Status of Children Act 1974 - SECT 10D

Implantation procedures: presumption as to status of child where donor semen used

10D. Implantation procedures: presumption as to status of child where donor
semen used



(1) A reference in this section to a procedure is a reference to the procedure
of implanting in the womb of a woman, or otherwise transferring to the body of
a woman, an embryo derived from an ovum produced by her and fertilized outside
her body by semen produced by a man other than her husband.

(1A) A reference in this section to a procedure includes a reference to-

   (a)  the procedure of transferring to the body of a woman, otherwise than
        by artificial insemination-

   (i)  semen produced by a man other than her husband; or

   (ii) semen produced by a man other than her husband and an ovum produced by
        her; and

   (b)  the procedure of transferring to the body of a woman an ovum in the
        process of fertilisation, if the ovum was produced by her and the
        process of fertilisation commenced outside her body from semen
        produced by a man other than her husband.

(2) Where a married woman, in accordance with the consent of her husband, has
undergone a procedure as a result of which she has become pregnant-

   (a)  the husband shall be presumed, for all purposes, to have produced the
        semen used for the fertilization of the ovum used in the procedure and
        to be the father of any child born as a result of the pregnancy; and

   (b)  the man who produced the semen used for the fertilization of the ovum
        used in the procedure shall, for all purposes, be presumed not to have
        produced that semen and not to be the father of any child born as the
        result of the pregnancy; and

   (c)  the husband shall be presumed, for all purposes, to have produced the
        semen-

   (i)  used in the procedure; or

   (ii) used for the fertilisation of the ovum used in the procedure; or

   (iii) used for the fertilisation of the ovum from which the embryo used in
        the procedure was derived- and to be the father of any child born as a
        result of the pregnancy; and

   (d)  the man who produced the semen-

   (i)  used in the procedure; or

   (ii) used for the fertilisation of the ovum used in the procedure; or

   (iii) used for the fertilisation of the ovum from which the embryo used in
        the procedure was derived- shall, for all purposes, be presumed not to
        have produced that semen and not to be the father of any child born as
        the result of the pregnancy.

(3) A presumption of law that arises by virtue of subsection (2)-

   (a)  is irrebuttable; and

   (b)  prevails over any conflicting presumption that arises by virtue of
        section 8 or 10.

(4) In any proceedings in which the operation of subsection (2) is relevant, a
husband's consent to the carrying out of a procedure in respect of his wife
shall be presumed but that presumption is rebuttable.