Presumptions as to parenthood

Determining the paternity of children is an important legal factor in matters relating to guardianship, custody and access disputes, financial support of children, and proprietary rights of inheritance. A child born to a woman during her marriage, or within 10 months after the marriage has been dissolved by death or otherwise, is presumed, in the absence of contrary evidence, to be the child of the mother and her husband, or former husband, as the case may be. The presumption is, however, rebuttable. The standard of proof required to rebut this presumption is the balance of probabilities.

These provisions are modified in the case of a child conceived as a result of medical procedures such as artificial insemination, donor ovum, donor embryo, donor semen, and intra-fallopian transfer.

Human assisted reproduction

The methods of human assisted reproduction recognised under the Status of Children Act 1969 include the following procedures (defined in the Act as "AHR procedures"):

  • artificial insemination;
  • donor semen implantation;
  • donor ovum or donor embryo implantation;
  • donor semen intra-fallopian transfer;
  • donor ovum intra-fallopian transfer;
  • donor embryo intra-fallopian transfer;
  • embryo (donor semen) intra-fallopian transfer; and
  • embryo (donor ovum) intra-fallopian transfer.

The Act provides that a woman who becomes pregnant as a result of an AHR procedure in which the ovum or embryo used was produced by, or derived from an ovum produced by, another woman, is, for all purposes, the mother of any child of the pregnancy. Further, if a partnered woman becomes pregnant as a result of an AHR procedure for which the semen (or part of the semen) used was produced by a man who is not the woman's partner and the woman has undergone the procedure with her partner's consent, the woman's partner is, for all purposes, a parent of any child of the pregnancy. A woman's consenting partner is also a parent of any child of the pregnancy if the woman becomes pregnant through an AHR procedure in which the ovum or embryo used was produced by, or derived from an ovum produced by, another woman who is not the woman's partner. In proceedings relating to these provisions, the consent of a partner (partner A) to the carrying out on his or her partner (partner B) of an AHR procedure that involves genetic material from a person who is not partner A, is, in the absence of evidence to the contrary, presumed.

The Act provides further that if a partnered woman (woman A) becomes pregnant as a result of an AHR procedure in which the ovum or embryo used was produced by, or derived from an ovum produced by, another woman (woman B), woman B is not, for any purpose, a parent of any child of the pregnancy unless woman B is, at the time of conception, woman A's partner. If a partnered woman becomes pregnant as a result of an AHR procedure in which the semen (or part of the semen) used was produced by a man who is not her partner, the man is not, for any purpose, a parent of any child of the pregnancy.

If a woman acting alone (woman A) becomes pregnant as a result of an AHR procedure in which the ovum or embryo used was produced by, or derived from an ovum produced by, another woman (woman B) who is not woman A's partner, woman B is not, for any purpose, a parent of any child of the pregnancy unless woman B becomes, after the time of conception, woman A's partner. Similarly, if a woman acting alone becomes pregnant as a result of an AHR procedure in which the semen used was produced by a man who is not her partner, the man is not, for any purpose, a parent of any child of the pregnancy unless he becomes, after the time of conception, the woman's partner. Further, only the first non-partner donor to later become the mother's partner is a parent of a child produced as a result of an AHR procedure involving more than one non-partner donor.

These provisions of the Status of Children Act 1969 apply in respect of a pregnancy to which they refer whether the pregnancy occurred before or after their commencement, and whether or not the pregnancy resulted from a procedure carried out in New Zealand. Further, the provisions apply in respect of a child born of such a pregnancy whether the child was born before or after the commencement of the provisions, and whether or not the child was born in New Zealand.

If you have any issues surrounding human assisted reproduction, talk to Rennie Cox about your position.