Parenthood where egg, sperm or embryo used is not intended to be used
9.—(1) This section shall apply where—
- (a) by reason of any mistake, negligence, recklessness or fraud, any egg, sperm or embryo used in a fertilisation procedure undergone by a gestational mother was not the egg, sperm or embryo intended to be used by the gestational mother or, where applicable, her husband or her de facto partner, as the case may be; and
- (b) the use of the egg, sperm or embryo in the fertilisation procedure resulted in the gestational mother carrying a child.
(2) Subject to subsection (3), the parenthood of the child born as a result of a fertilisation procedure referred to in subsection (1) shall be determined in accordance with section 6 or 7, as the case may be, as if—
- (a) the mistake, negligence, recklessness or fraud had not occurred; and
- (b) the child was brought about with the egg, sperm or embryo intended to be used by the gestational mother or, where applicable, her husband or her de facto partner, as the case may be, and not the egg, sperm or embryo actually used.
(3) Subject to subsection (4), the court may, in its discretion and upon an application made under section 10 by a person other than the person to be treated as the parent of a child under subsection (2), declare that that person shall be the parent of the child.
(4) The court shall not declare that a person is to be treated as the parent of a child pursuant to subsection (3) unless an application has been made under section 10 within 2 years after the date on which the applicant discovered that the child was bom as a result of a fertilisation procedure referred to in subsection (1).
Application to determine parenthood
10.—(1) This section shall apply to all applications to determine the parenthood of a child under this Act.
