Which case won?

The case for the egg donor
  • We were still in a de facto relationship at the time of the IVF procedure.
  • I was still staying at the house several nights a week.
  • We continued to have a sexual relationship.
  • My understanding was that we had a future together centred on our joint care of the child; I even attended medical appointments with the birth mother.
  • The content of hundreds of text messages we exchanged before and after the IVF procedure supports what I’m saying.
The case for the birth mother
  • We were previously in a de facto relationship, but this ended on 21 March 2011 when she moved out.
  • I paid over $61,000 in total for IVF treatment over 2007-2011, without seeking or being offered a financial contribution by my ex.
  • We deliberately misrepresented our relationship on the donor declaration at the IVF clinic because we knew the procedure would not be available if we were not partners.
  • At the time of the embryo donation, my ex’s clear intention was for me to have a baby on my own.
  • If that had not been the clear agreement, I would not have gone ahead with the transfer of her embryo.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a71%
case b29%

Expert commentary on the court's decision

“The court took the view that the women were indeed in a de facto relationship at the time of the IVF procedure and therefore the egg donor was a parent of the child.”
Who is a “parent” under Australian law?

In the case Crisp & Clarence [2015] FamCA 964, the court had to consider section 60H of the Family Law Act 1975, which sets out the position of children born as a result of artificial conception procedures.

Under this legislation, the married or de facto partner of a woman who has a child as a result of an artificial conception procedure is defined to be “the other intended parent” of the child, as long as both the woman and the other intended parent consented to the procedure being carried out.

There was no dispute that both women had agreed to the IVF procedure. Therefore, whether the egg donor was to be considered a “parent” of the child depended on whether or not the women were in a de facto relationship at the time of the child’s conception.

What is a de facto relationship?

De facto relationships are defined under section 4AA of the Family Law Act.

Two people are in a de facto relationship if they are not legally married, not related by family and have “a relationship as a couple living together on a genuine domestic basis”.

Determining whether the last criterion is satisfied involves considering a number of factors:

  • the duration of the relationship
  • the nature and extent of their common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence and any arrangements for financial support between them
  • the ownership, use and acquisition of their property
  • the degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship
  • the care and support of children
  • the reputation and public aspects of the relationship

Importantly, no single factor on this list is decisive or mandatory in determining whether a de facto relationship exists. Instead, the court’s decision will depend on an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.

According to the legislation, a de facto relationship can be between two people of different sexes or the same sex. Further complexity is added by the fact that a de facto relationship can exist even if one of the people is married to someone else or in another de facto relationship.

Court finds that de facto relationship existed

After balancing the competing accounts of events, the court took the view that the women were indeed in a de facto relationship at the time of the IVF procedure and therefore the egg donor was a parent of the child.

The fact that she had moved out of the residence that the two women had shared was not sufficient to prove that the de facto relationship had ended.

In the words of the judge: “The notion of separation is clearly something more than a physical separation. It must be the irreconcilable breakdown of their personal and domestic relationship.”

The birth mother subsequently appealed the decision, in the case Clarence & Crisp [2016] FamCAFC 157.

She lost the appeal and was ordered to pay the other woman’s costs.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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