A recent decision of the Federal Circuit and Family Court of Australia (Division 1) in Ophoven & Berzina [2025] FedCFamC1A 97 has provided important guidance on how Australian family law defines “parent” in cases involving children conceived through artificial reproductive procedures.
The case arose from a dispute between two former partners over the parental status of the respondent who was not biologically related to the child but was named on the birth certificate. The appellant challenged a declaration made under section 69VA of the Family Law Act that he was the child’s legal parent.
Key Facts
- The child was born to the appellant in New South Wales following an IVF procedure undertaken overseas but has no genetic connection to either party.
- The parties were not in a relationship at the time of conception but resumed a de facto relationship shortly after the birth.
- Both were listed as parents on the birth certificate.
- The child bore the respondent’s surname and referred to him as “daddy.”
- The respondent was actively involved in the child’s care and schooling after birth and post-separation.
What Does the Law Say About Parentage in IVF Cases?
Under the Family Law Act, the term “parent” is not comprehensively defined. Section 60H deals with parentage in artificial conception cases but applies only where the birth mother and the other parent were married or in a de facto relationship at the time of conception and had given consent. That was not the case here.
The central legal question became whether a person who is not biologically connected to a child can be declared a parent under s 69VA, which allows a court to make a conclusive declaration of parentage for all Commonwealth purposes.
The Court’s Reasoning
The appellate court examined the significance of biology in defining parenthood. Historically, courts had interpreted s 69VA as requiring a biological connection. However, the Full Court held that this interpretation is no longer sustainable in light of the High Court’s ruling in Masson v Parsons [2019] HCA 21, which broadened the understanding of who may be regarded as a parent.
In Masson, the High Court affirmed that the ordinary, contemporary Australian understanding of “parent” is a question of fact and degree, and that legal parentage is not necessarily tied to biology alone.
Following this reasoning, the Full Court in Ophoven & Berzina held:
- A biological connection is not essential for a declaration of parentage under s 69VA.
- The presumption of parentage arising from being named on the birth certificate (under s 69R) was not rebutted.
- The respondent had formed a clear intention to parent the child before birth and had in fact acted as a parent after birth.
- The child considered the respondent to be her father and had a meaningful and ongoing relationship with him.
Based on this, the Court upheld the declaration that the respondent was a legal parent of the child.
A Divided Bench
It is worth noting that the Court was not unanimous. While Justices Aldridge and Christie upheld the parentage declaration, Justice Gill dissented, expressing concern about expanding the definition of “parent” without clear legislative authority or biological connection. He would have refused the declaration on that basis.
Why This Decision Matters
This case reinforces the flexible, modern interpretation of parenthood in Australian family law, particularly in the context of IVF and non-traditional family structures. It affirms that legal parentage can be grounded in intention, social parenting roles, and the child’s lived experience, not just genetics.
For separating couples where one party lacks a biological connection to a child conceived through assisted reproduction, this decision highlights the legal significance of:
- Being named on the child’s birth certificate;
- Demonstrated intention to parent; and
- A sustained parenting relationship with the child.
Conclusion
Ophoven & Berzina confirms that Australian courts are increasingly recognising the reality of diverse family structures. Legal parenthood may arise from commitment and caregiving, not just DNA. This judgment is particularly significant for non-biological parents, same-sex couples, and families formed through donor conception or surrogacy.
If you’re navigating complex parenting or parentage issues following separation, especially involving assisted reproductive technologies, it’s crucial to seek legal advice. The definition of “parent” is evolving — and your legal rights may be broader than you think. Contact the family law team at Elit Lawyers by McGirr & Snell to find out how we can help you on (03) 9100 1850.
Aggie Vlahos | Partner | [email protected] | 0405 995 057
Shahn Beasley-Reickenvater | Associate Lawyer | [email protected] | 03 9100 1850