Artificial Conception Act 1985

The Act rests on a small number of statutory concepts and presumptions that determine legal parentage in the specific context of artificial fertilisation. These main concepts are:

• Artificial fertilisation procedure: The Act does not define the term itself; instead it imports the meaning given in the Human Reproductive Technology Act 1991 (s 3(3)). The scope of the Act therefore depends on that external statutory definition. The Act treats any procedure that falls within that definition as within its operation (s 4(1)(a)).

• Maternity as a function of gestation: If a woman becomes pregnant following an artificial fertilisation procedure and the ovum used was taken from another woman, the pregnant woman is declared to be the mother for State law purposes (s 5(1)). The statutory language locates maternity on the gestational mother rather than the genetic contributor.

• Paternity presumption for husband (or treated spouse): Where a married woman undergoes an artificial fertilisation procedure with the consent of her husband, the husband is conclusively presumed both to have caused the pregnancy and to be the father (s 6(1)(a)-(b)). The Act recognises a separate rebuttable presumption that the husband consented to the procedure (s 6(2)).

• Parentage in same-sex female de facto relationships: Section 6A mirrors the husband-wife presumption in the context of a woman in a de facto relationship with another woman. If the pregnant woman underwent the procedure with the consent of her de facto partner, the de facto partner is conclusively presumed to be a parent of the unborn child and is a parent of any resultant child (s 6A(1)(a)-(b)). The consent presumption is rebuttable (s 6A(2)). Section 3(1) and (2) also affect how references to married persons and husband/wife are to be read, by treating certain de facto relationships as if married for the Act’s purposes.

• Donor non-parentage: The Act makes two distinct non-parentage rules. An ovum donor is not the mother of any child resulting from a procedure using that ovum (s 7(1)). A man who provided sperm but is not the woman’s husband is conclusively presumed not to have caused the pregnancy and to be not the father (s 7(2)(c)-(d)). This creates an irrebuttable statutory non-parentage in the case of non-husband sperm donors.

• Extraterritorial reach and temporal application: The Act applies to procedures and births regardless of whether they took place before or after commencement and regardless of whether they took place within or outside Western Australia (s 4(1)(a)-(b)). This is a legal claim to apply State parentage rules to cross-border reproductive arrangements.

• Evidential character of presumptions: The Act differentiates between conclusively presumed facts and rebuttable presumptions. For example, s 6(1) and s 6A(1) create conclusive presumptions of parentage, whereas s 6(2) and s 6A(2) make the presumption that the partner consented rebuttable. Section 7(2)(c) uses "conclusively presumed not to have caused the pregnancy" to make non-husband sperm donors non-parents irrebuttably under this Act.

These concepts interlock: who is treated as mother or father depends on genetic origin, gestation, marital or de facto status, and consent by the partner, as those terms are applied by the Act and as "married" and "husband/wife" are to be read under the interpretation provisions (s 3).

The Act alters legal status and presumptions that affect identifiable groups and institutions. The primary affected parties are:

• Pregnant women who become pregnant by an artificial fertilisation procedure. Section 5 directly assigns maternity to a pregnant woman where a donor ovum was used. Section 6 and 6A operate where the pregnant woman undergoes the procedure with the consent of a husband or de facto partner. Section 7 affects pregnant women in relation to the legal status of genetic donors.

• Husbands and opposite-sex de facto partners. Where a "married woman" (a term that the Act treats as including some de facto partners (s 3(1))) undergoes the procedure with her husband’s consent, the husband is conclusively presumed to have caused the pregnancy and to be the father (s 6(1)). Section 3(2) modifies how reference to husband or wife is to be read in de facto opposite-sex relationships, and thus can alter who is treated as the relevant consenting partner.

• Female de facto partners in same-sex relationships. Section 6A expressly addresses parentage where a woman in a de facto relationship with another woman undergoes an artificial fertilisation procedure with her de facto partner’s consent. The de facto partner is conclusively presumed to be a parent of the unborn child and a parent of any child born as a result (s 6A(1)(a)-(b)).

• Genetic donors: Ovum donors are excluded from motherhood for State law purposes if their ovum is used in an artificial fertilisation procedure (s 7(1)). Men who supply sperm but are not the woman’s husband are conclusively presumed not to have caused the pregnancy and are not the father (s 7(2)(c)-(d)). These provisions affect sperm banks, donor registries, donors, and any agreements entered into around donation.

• Children conceived by artificial fertilisation procedures, wherever the procedure took place or the child was born. The Act applies to such children whether conception/birth occurred before or after commencement and whether within or outside WA (s 4(1)(a)-(b)). The Act therefore directly affects the assigned legal parentage of those children.

• Courts, registrars and State agencies that determine parentage and apply State law categories. The Act declares "for the purposes of the law of the State" who is a mother, father or parent in these situations (s 5(1), s 6(1)(b), s 6A(1)(b), s 7(1), s 7(2)(d)). Those bodies will apply the Act’s presumptions when resolving disputes or administering services.

• Medical practitioners and assisted reproductive service providers, insofar as their practices generate the factual basis for the statutory presumptions. The Act links legal outcomes to the occurrence of the artificial fertilisation procedure and to consent by partners (s 6, s 6A) which makes documentation and consent processes practically significant.

Secondary impacts fall on persons and institutions whose rights depend on parentage status under State law: potential claimants or defendants in intestacy or succession matters, guardianship and custody disputes, child support proceedings, and record-keeping bodies. The Act itself does not list those downstream consequences; it provides the statutory allocations that will feed into those other State law regimes by operation of the phrase "for the purposes of the law of the State".

The Act does not impose positive regulatory duties such as licensing, reporting or criminal offences. Instead it creates statutory rights and statuses, and places evidential or conclusive burdens in specified directions. Key legal effects that operate as duties or rights are:

• Right/status of gestational mother: When an ovum from another woman is used but a woman becomes pregnant as a result, the pregnant woman is declared the mother for State law purposes (s 5(1)). That status will be treated as a legal right to parental status under State law regimes that rely on parentage.

• Husband’s conclusive presumption of paternity: Where a married woman undergoes an artificial fertilisation procedure with her husband’s consent, the husband has a statutory right to be treated as the father; the Act makes that paternity conclusive for State law purposes (s 6(1)(a)-(b)). The conclusive character means the Act does not provide an internal mechanism to rebut the factual presumption that the husband "caused the pregnancy".

• Rebuttable presumption of consent: The Act presumes, in any case where it is necessary to determine whether a husband consented, that he did consent, but states this presumption is rebuttable (s 6(2)). The same evidential mechanism applies for de facto partners under s 6A(2). The practical effect is that partner consent will be treated as present unless evidence to the contrary is adduced.

• Parentage in same-sex female de facto relationships: Section 6A gives the de facto partner of a pregnant woman in a same-sex de facto relationship a conclusive statutory right to be treated as parent when she consented to the procedure (s 6A(1)(a)-(b)). Consent is presumed but rebuttable (s 6A(2)). The rights created are equivalent to those conferred on husbands in opposite-sex relationships for the Act’s purposes.

• Exclusion of genetic donors from parentage: An ovum donor is not the mother of a child born following a procedure using that ovum (s 7(1)). A man who provided sperm and is not the woman’s husband is conclusively presumed not to have caused the pregnancy and is not the father (s 7(2)(c)-(d)). These are statutory non-parentage rules that remove ordinary parental claims by donors under State law.

• Extraterritorial and temporal reach: The Act’s application to procedures and children regardless of location or timing (s 4(1)(a)-(b)) means the rights and statuses it creates will apply in WA even where the procedure occurred elsewhere or before the Act commenced, subject to the saving of prior property vesting (s 4(2)).

• Interpretation of marital references: Section 3 redefines how "married woman" and references to husband or wife are to be read. A reference to a married woman includes a reference to a woman living with a man as his de facto partner (s 3(1)). A reference to husband or wife, where the person is in a de facto relationship with a person of the opposite sex, is a reference to the de facto partner and does not include reference to the spouse to whom the person is actually married (s 3(2)(a)-(b)). That interpretive scheme affects who has rights under s 6.

The Act does not itself specify how a party is to establish or rebut consent in evidentiary terms, nor does it set out processes for the registration of parentage or for recording the legal status created. The Act supplies rights and presumptions; implementation in administrative or adjudicative contexts will depend on other State law mechanisms and procedures that apply "for the purposes of the law of the State" (see s 5(1), s 6(1)(b), s 6A(1)(b), s 7).

The Act contains no criminal offences, monetary penalties, or explicit administrative enforcement powers. The statute’s operative mechanism is statutory attribution of parentage and non-parentage, not enforcement by fines or sanctions.

• No penal provisions within the text: Nowhere in the Act’s sections (ss 1-7) does the legislation create an offence, prescribe a penalty, or confer power to impose administrative fines or other sanctions. The compilation notes and omitted provisions table do not insert penal measures into the Act as presented.

• Enforcement is procedural and civil: The Act’s operation is to instruct how parentage is to be treated "for the purposes of the law of the State" (s 5(1), s 6(1)(b), s 6A(1)(b), s 7(1), s 7(2)(d)). That means enforcement of the Act’s allocations will occur through ordinary civil processes: judicial determination of status, administrative decision-making (for example, by registrars) and downstream civil or family law proceedings that rely on parentage. The Act itself does not provide the procedures by which courts or registrars must accept or apply the presumptions; it supplies the substantive rule to be applied by those bodies.

• Character of presumptions affects litigation posture: Some presumptions are conclusive (for example, s 6(1) and s 6A(1) as to parentage; s 7(2)(c) as to non-paternity), making them under the Act immune from rebuttal. Other presumptions are rebuttable (s 6(2), s 6A(2)), creating evidential openings in disputes. The Act thus changes litigation burdens: a party seeking to rebut a presumption must provide evidence in support of that rebuttal where the presumption is rebuttable; where it is conclusive, the Act leaves no statutory route to displacement.

• Interaction with other State processes not specified: The Act does not specify how administrative bodies should update records or how corollary statutory schemes (for example, birth registration, child support or family law administrative processes) should proceed. Those details are to be determined by the other relevant statutes and administrative rules that operate "for the purposes of the law of the State", informed by the parentage allocations the Act provides.

In short, enforcement of the Act is civil and status-determining rather than penal. The practical consequence is that the Act changes the legal starting point for disputes over parentage and non-parentage; adjudication and administrative recognition follow established civil and family procedures rather than a bespoke enforcement apparatus inside this Act.

The Act is constructed to operate within the broader body of Western Australian law and expressly imports and preserves relationships with other statutes. The interaction points present in the text are:

• Dependence on the Human Reproductive Technology Act 1991 for definition: Section 3(3) gives the meaning of "artificial fertilisation procedure" by reference to the Human Reproductive Technology Act 1991. The scope of the 1985 Act therefore depends on the definition in that later Act, and any amendment to that definition will alter what procedures fall within the 1985 Act’s scope.

• Applicability "for the purposes of the law of the State": The Act’s declarations of mother, father, parent and non-parent are expressly cast as operative for the purposes of State law (s 5(1), s 6(1)(b), s 6A(1)(b), s 7(1), s 7(2)(d)). That means the allocations feed into all State regimes that rely on legal parentage. Which specific State statutes or administrative practices are affected is not enumerated in the Act; the phrase signals wide applicability across State legal contexts.

• Preservation of prior property vesting: Section 4(2) provides a saving: nothing in the Act affects the vesting of property in possession or in interest before the Act commenced. That limits retroactive effect in property interests vested prior to commencement, but does not otherwise limit the Act’s temporal reach for parentage questions.

• Reprints and omitted sections: The compilation shows that s 8 and Schedule 1 are omitted under the Reprints Act 1984 (Notes). The presence of omitted provisions indicates that the operative text has been adjusted in reprints; practitioners should consult the current reprint for consolidated text.

• Amendment history and later legislative developments: The Act was amended by the Statutes (Repeals and Minor Amendments) Act 1994 and the Acts Amendment (Lesbian and Gay Law Reform) Act 2002, which inserted s 6A and made other changes (Notes: compilation table and marginal notes to sections). The compilation’s uncommenced provisions table also lists an Assisted Reproductive Technology and Surrogacy Act 2025 provision that is unproclaimed (uncommenced provisions table). That signals that future State legislative change may interact with or supersede aspects of this Act.

• No express interaction with Commonwealth or interstate laws: The Act’s text does not expressly address Commonwealth law or how State parentage determinations interact with federal schemes such as child support administered by Commonwealth bodies, or with interstate recognition mechanisms. The Act’s extraterritorial application to procedures undertaken outside WA (s 4(1)(a)-(b)) creates potential overlap where other jurisdictions have their own parentage rules; the Act does not resolve conflicts of law.

Practically, the Act modifies the factual starting point for legal questions in a wide range of State contexts by allocating parentage and non-parentage. For a complete picture of how those allocations play out in particular administrative or judicial processes, the Act must be read alongside the relevant State statutes and procedural rules that implement family law, birth registration, succession, guardianship and similar regimes.

The compilation table and marginal notes in the Act record the following enactments and changes affecting the Artificial Conception Act 1985.

• Original enactment: Artificial Conception Act 1985, No. 14 of 1985, assented 12 April 1985, commenced by proclamation 1 July 1985 (s 2 and Gazette 28 Jun 1985 p. 2291) (Compilation table).

• 1994 amendment: Statutes (Repeals and Minor Amendments) Act 1994, No. 73 of 1994, included s 4 amending the Artificial Conception Act; assented 9 December 1994, commenced 9 December 1994 (Compilation table; note to s 7 indicates amendment by No. 73 of 1994 s 4).

• 2002 amendment: Acts Amendment (Lesbian and Gay Law Reform) Act 2002, No. 3 of 2002, Part 4, introduced multiple amendments and insertions; assented 17 April 2002, commenced 21 September 2002 (Compilation table; marginal notes to ss 3, 4, 5, 6, 6A and 7 indicate amendments by No. 3 of 2002 and specific section citations: s 3 amended by No. 3 of 2002 s 24; s 4 amended No. 3 of 2002 s 28; s 5 amended No. 3 of 2002 s 25 and s 28; s 6 amended No. 3 of 2002 s 28; s 6A inserted No. 3 of 2002 s 26; s 7 amended No. 3 of 2002 s 27 and s 28).

• Reprints and omissions: The Act’s reprint (Reprint 1 as at 6 Jun 2003) incorporates amendments listed. Sections and schedules omitted under the Reprints Act 1984 s 7(4)(e) are noted: section 8 and Schedule 1 are omitted (marginal notes).

• Uncommenced provisions from later legislation: The uncommenced provisions table shows that the Assisted Reproductive Technology and Surrogacy Act 2025, s 279(1)(a), No. 19 of 2025, assented 18 Dec 2025, is to be proclaimed (uncommenced), indicating a later Act that may interact with this statute once proclaimed.

Key textual changes recorded by the marginal notes include insertion of s 6A in 2002 to address parentage in same-sex de facto relationships, amendments affecting interpretation rules to treat certain de facto partners as if married for the Act’s purposes, and prior omissions under reprints. The notes to sections indicate the specific amending instruments and the particular sections of those instruments that effected the changes.

This compilation is the authoritative legislative history included in the provided text. The Act as presented is the consolidated product of the 1985 original and the 1994 and 2002 amendments reflected in the reprint and compilation notes.

The Act as provided contains no reported judicial decisions, case citations or litigation annotations. The text and the compilation notes do not list any cases that have interpreted or applied its provisions. The Act itself does not include an annex of authorities or references to judicial construction.

Consequently, from the material supplied here:

• There are no cases named in the Act or its notes to indicate how courts have applied the Act’s presumptions, whether the conclusive presumptions have been litigated, or how rebuttable consent presumptions have been treated in evidentiary practice.

• There is no recorded administrative practice or registrar decisions annotated in the compilation table or marginal notes.

• The Act provides the substantive statutory rules. How courts, registrars and administrative agencies have applied those rules in concrete disputes is not contained within this text.

Practitioners should therefore treat the Act as supplying statutory starting points for parentage and non-parentage (ss 5, 6, 6A, 7) but must consult case law databases, tribunal decisions and agency practice statements outside this Act to understand contemporary judicial and administrative interpretation. The compilation provided here does not supply that litigation history.

Practical traps and features likely to generate dispute or require attention, grounded in the Act’s text, include the following.

• Conclusive versus rebuttable presumptions: The Act differentiates entre irrebuttable and rebuttable presumptions. Sections 6(1) and 6A(1) create conclusive presumptions of parentage, while sections 6(2) and 6A(2) make the presumption that the partner consented rebuttable. Section 7(2)(c) makes a non-husband sperm donor conclusively presumed not to have caused the pregnancy. The difference is legally significant: a conclusive presumption cannot be displaced under the Act; a rebuttable presumption admits evidentiary challenge. Practitioners must identify which presumption applies in the factual matrix (ss 6(1) vs 6(2), s 6A(1) vs s 6A(2), s 7(2)(c)).

• Interpretation of "married woman" includes some de facto situations: Section 3(1) states that reference to a married woman includes a woman living with a man as his de facto partner. That means s 6’s husband-wife paternity scheme may apply to certain de facto couples of opposite sex. Section 3(2) further provides that a husband or wife reference, in a case where a person is in a de facto opposite-sex relationship, refers to the de facto partner and does not include the spouse to whom the person is actually married. This can produce non-intuitive outcomes where a person remains legally married to someone else but is treated for the Act’s purposes as having a de facto partner who is the relevant spouse-equivalent for s 6.

• Extraterritorial application: Section 4(1)(a)-(b) applies the Act to procedures and births whether carried out within or outside Western Australia, and whether before or after commencement. Cross-border fertility arrangements or births overseas will still be subject to WA parentage allocations for WA legal purposes. That creates potential conflict-of-law issues that the Act does not resolve within its text.

• Donor non-parentage is categorical in text but depends on defined procedure: Section 7 excludes ovum donors from motherhood and non-husband sperm donors from fatherhood in conclusive terms. However, the Act applies only to "artificial fertilisation procedures" as defined by the Human Reproductive Technology Act 1991 (s 3(3)). Whether a particular method or arrangement qualifies therefore depends on the imported definition, and practitioners must check that definition to confirm the application of s 7.

• Lack of procedural mechanism for proving or rebutting consent: The Act presumes consent in s 6(2) and s 6A(2) but provides no statutory procedure, form, or evidential standard for how consent should be recorded, proven or rebutted. That omission leaves to evidence law and other administrative procedures the form and reliability of proof.

• No express instructions on record-keeping or registrars: The Act declares parentage "for the purposes of the law of the State" but does not direct how birth registrations or other official records are to be completed. Practitioners cannot rely on the Act for administrative pathways; they must check related State processes for birth certification and identity documents.

• Temporal saving for property vesting only: Section 4(2) protects property vested before commencement, but does not otherwise limit the retroactive effect of parentage allocations to affect rights arising under other civil regimes. Users should note that the only explicit saving relates to vested property; other legal consequences are not saved by the text.

• Potential future legislative change: The compilation’s uncommenced provisions table references the Assisted Reproductive Technology and Surrogacy Act 2025 s 279(1)(a) as unproclaimed. Once proclaimed, that Act may change the legal landscape for assisted reproduction and parentage. The presence of an uncommenced later Act in the compilation table is a signal to check for subsequent proclamations and amendments.

These are practical points that arise from the statute’s wording. The Act supplies substantive rules but leaves certain procedural and cross-jurisdictional questions to other instruments and general legal practice.

Compliance in this context is about structuring actions, agreements and records so that the statutory presumptions and allocations operate as intended, and so that parties reduce the risk of unwanted disputes. The Act itself does not prescribe administrative forms or regulatory compliance regimes; it sets out status rules that practitioners and participants should accommodate. Recommended steps grounded in the Act’s provisions are:

• Obtain and document partner consent where parentage consequences are intended: Sections 6 and 6A make partner consent a central fact that triggers conclusive parentage presumptions. Although the Act presumes consent (s 6(2), s 6A(2)), the presumption is rebuttable. For clarity and to reduce litigated disputes, record a partner’s express consent in writing and retain that record. The Act does not specify the evidential form of consent; therefore contemporaneous written consent will strengthen the factual record should rebuttal be attempted.

• For opposite-sex de facto relationships, confirm how "married" and "husband/wife" are to be read: Section 3(1) and (2) broaden how marital references operate. Parties in de facto relationships with an opposite-sex partner should treat the partner as the relevant spouse-equivalent under s 6 unless their facts fall outside the interpretive reach. Legal advice can clarify whether a given relationship structure falls within s 3’s definitions.

• For female same-sex de facto couples, ensure consent processes are clear: Section 6A operates only where the de facto partner consented. Because s 6A(2) allows the consent presumption to be rebutted, partners should document consent clearly in advance so that the de facto partner’s parentage under s 6A(1) is less likely to be challenged.

• If using donor gametes, obtain and retain donor agreements and check whether the procedure qualifies as an "artificial fertilisation procedure": Section 7 excludes genetic donors from parentage when the procedure is within the Act’s scope. Because the Act imports the definition from the Human Reproductive Technology Act 1991 (s 3(3)), parties must check that definition to confirm the Act’s operation. For ovum donors, s 5(1) and s 7(1) make the gestational mother the mother and the ovum donor not the mother; document the donor’s consent and the arrangement to reduce commercial and reputational risk even though s 7(1) makes non-mother status clear under State law.

• Recognise that non-husband sperm donors are conclusively non-parents under State law: Section 7(2)(c)-(d) makes a man who provided sperm and is not the woman’s husband conclusively presumed not to have caused the pregnancy and not to be the father. If parties intend a different legal arrangement, e.g. to establish parentage for a donor, the Act’s terms will generally preclude that outcome under State law where s 7 applies. Legal advice is required if different legal arrangements are sought.

• Account for extraterritorial operations: Section 4(1)(a)-(b) brings procedures done outside WA and children born outside WA within the Act’s ambit. Parties undertaking cross-border fertility arrangements should consider WA legal consequences if they or their child will have a WA legal connection. If an intended parentage outcome differs in another jurisdiction, obtain legal advice on potential conflicts and on how WA law will treat the status.

• Retain contemporaneous medical and procedural records: Because the Act’s questions often hinge on whether a named procedure occurred and on consent, detailed clinical and administrative records are critical evidence. The Act does not specify evidentiary standards, so quality records will assist parties and tribunals when presumptions are rebutted or applied.

• Monitor legislative developments: The compilation notes an Assisted Reproductive Technology and Surrogacy Act 2025 provision listed as uncommenced. Practitioners should monitor proclamations and amendments that may modify the legal landscape and consider transitional effects.

• Seek specific legal advice for registration and downstream legal processes: The Act assigns parentage "for the purposes of the law of the State" but does not specify how to register births or update administrative records. Parties should consult birth registration and other administrative procedures to ensure official documents reflect the statutory status the parties intend or that the Act prescribes.

These steps are drawn from the Act’s substantive provisions (ss 3-7 and s 4’s temporal and territorial application). They reflect practical measures to align behaviour and documents with the statutory presumptions the Act creates.