South Australian Numbered Acts South Australian Numbered ActsSchedule 1—Related amendments and transitional provisions
Part
1—Related amendments to Family Relationships Act 1975
1—Amendment of heading to Part 2A
Heading to Part 2A—delete "medical" and substitute:
fertilisation
2—Amendment of section 10A—Interpretation
Section 10A(1), definition of fertilisation procedure —delete the
definition and substitute:
fertilisation procedure means—
(a)
assisted insemination (within the meaning of the Assisted Reproductive
Treatment Act 1988 ); or
(b)
assisted reproductive treatment (within the meaning of the Assisted
Reproductive Treatment Act 1988 ).
3—Amendment of section 10B—Application of Part
Section 10B(1)—delete subsection (1) and substitute:
(1) Subject to this
section, this Part applies—
(a) in
respect of a fertilisation procedure carried out before or after the
commencement of the Reproductive Technology (Clinical Practices)
(Miscellaneous) Amendment Act 2009 either within or outside the State; and
(b) in
respect of a child born before or after commencement of the Reproductive
Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 either
within or outside the State.
4—Amendment of section 10D—Rule relating to paternity
Section 10D—after subsection (2) insert:
(3) Subject to this
Act, if a woman undergoes, in accordance with this or any other Act, a
fertilisation procedure in consequence of which she becomes pregnant using the
semen of a man—
(a) who
has died; and
(b) who,
immediately before his death, was living with the woman on a genuine domestic
basis as her husband; and
(c) who
had consented to the use of the semen for the purposes of the fertilisation
procedure,
the man—
(d) will
be conclusively presumed to have caused the pregnancy; and
(e) will
be taken to be the father of any child born as a result of the pregnancy.
After section 10E insert:
10EA—Court order relating to paternity
(1) This section
applies to a child if—
(a) the
child is domiciled in this State; and
(b) the
child was conceived as a result of a fertilisation procedure carried out in
this State; and
(c) 1 or
more of the following applies:
(i)
the paternity of the child is not able to be determined
by the operation of section 10D;
(ii)
the operation of section 10E(2) does not reflect the
wishes of both the provider of the sperm used for the purposes of the
fertility procedure (the sperm provider ) and the mother of the child;
(iii)
the fertility procedure was carried out in any other
circumstances brought within the ambit of this paragraph by the regulations.
(2) The Court may, in
relation to a child to which this section applies and on the application of
the sperm provider in respect of the child, make an order under this section.
(3) However, the Court
must not make an order under this section unless satisfied that both the
mother and the sperm provider freely, and with a full understanding of what is
involved, agree to the making of the order.
(4) The Court must, in
deciding whether to make an order under this section, regard the welfare of
the child as the paramount consideration.
(5) In deciding
whether to make an order under this section, the Court may take into account
anything it considers relevant.
(6) If the Court makes
an order under this section, the effect of the order will be as follows:
(a) for
the purposes of the law of the State—
(i)
will be conclusively presumed to have caused the
pregnancy; and
(ii)
will be taken to be the father of any child born as a
result of the pregnancy;
(b) the
relationships of all other persons to the child will be determined according
to the operation and effect of paragraph (a).
(7) If the Court makes
an order under this section, the Court may make any other ancillary order the
Court thinks fit.
(8) In this
section—
Court means the Youth Court of South Australia constituted of a Judge.
Part 2—Transitional provisions
(1) A person who,
immediately before the commencement of this clause, held a licence under
Part 3 of the Reproductive Technology (Clinical Practices) Act 1988
(as in force immediately before the commencement of this clause) will be taken
to be registered under Part 2 of that Act (as enacted by this Act).
(2) Any licence
condition to which the licence was subject under section 13(3)(a) and (e)
of the Reproductive Technology (Clinical Practices) Act 1988 (as in force
immediately before the commencement of this clause) will be taken to continue
to apply as a condition of registration under Part 2 of that Act (as
enacted by this Act).
A person who held a licence under Part 3 of the Reproductive Technology
(Clinical Practices) Act 1988 (as in force immediately before the
commencement of this clause) must keep any record required to have been made
or kept as a condition to which the licence was subject under
section 13(3)(d) of that Act (as in force immediately before the
commencement of this clause) as if the record were a record required to be
made or kept under that Act after the commencement of Part 2 of this Act.