Who is a parent?
Sometimes there is disagreement or uncertainty about who is legally considered the parent of a child.
This page contains information about what the law says about who is considered the parent of a child.
Why is parentage important?
Parentage is important because only parents pay child support. Parentage may also be an issue in Family Court matters when there is a dispute about who a child lives or spends time with.
How can a disagreement about parentage be settled?
- Relying on a presumption of paternity.
- DNA testing.
- A court making an order saying that the parties are the parents of the child.
When is a person said to be the parent of a child? (presumption of paternity)
There are some cases where the court and other agencies, such as Child Support- Services Australia and the Registry of Births, Deaths and Marriages, will accept that a person is the parent of a child without any other evidence. This includes:
- When a man was married to the mother and the child was born:
- during their marriage
- within 44 weeks of the marriage ending by death or annulment.
- When a man lived with the mother (but they were not married) at any time from 44 to 20 weeks before the child was born.
- When a man is on the birth certificate as the father or has signed something (such as a statutory declaration) saying he is the father.
- When a court has made a statement in the past that the man is the father.
For more information about parentage as it relates to child support see Proving parentage | Legal Aid WA.
Artificial conception
If a woman gives birth to a child after artificial conception (including IVF) she is considered to be the parent even if the child is not biologically hers. The de facto partner or spouse of the woman is also considered to be the parent if the de facto partner or spouse agreed to the artificial conception.
Surrogacy
Surrogacy is when a woman agrees to carry and give birth to a baby for another person or couple (the arranged parents). When the baby is born the baby is raised by the arranged parents.
Surrogacy can be either traditional surrogacy (where the surrogate’s own egg is used, so she is the biological mother) or gestational surrogacy (where an embryo created using the arranged parents’ sperm and egg is placed into the surrogate).
Non-commercial surrogacy arrangements are permitted in WA; however commercial surrogacy is illegal. Non-commercial surrogacy means the surrogate cannot be paid for carrying the baby, although they can be paid for all reasonable expenses associated with carrying and giving birth to the baby such as medical costs, time off work etc.
The woman who gives birth to the child is deemed the mother of any child born of a surrogacy arrangement. If the birth mother was married or in a de facto relationship, her spouse or de facto partner is deemed the other parent of the child. The provider of any genetic material, whether male or female, is not a parent of the child. However, this can be altered by way of a Family Court of WA order.
The Family Court of WA has jurisdiction under the Surrogacy Act 2008 (“the Act”), and can make parentage orders. A parentage order will transfer the parentage of a child from his or her surrogate birth parent/s to the child’s arranged parents. The arranged parents then become the child’s legal parents.
Before the birth mother becomes pregnant a written surrogacy arrangement must be approved by the Western Australian Reproductive Technology Council.
Before applying to the Family Court of WA for a parentage order the following criteria must be established:
- The applicant/s is/are the arranged parent or parents in a written surrogacy arrangement which has been approved, in writing, by the Western Australian Reproductive Technology Council.
- Both arranged parents must be residents of Western Australia.
- At least one of the arranged parents is over the age of 25.
- The arranged parents must be an eligible couple or at least one of them must be an eligible person.
The court will consider the following factors when deciding whether to grant a parentage order:
- The arranged parent/s satisfy the criteria outlined in the last section.
- The arranged parent/s and the birth parent/s have undergone counselling about the consequences of the proposed order.
- The arranged parents and the birth parent/s have all received independent legal advice about the legal implications of the proposed order.
- The birth parent/s consent to the order being made.
- The child is in the day-to-day care of the arranged parents.
- The parties have agreed on an ‘approved plan’.
- It is in the best interests of the child for the parentage order to be made.
Eligible person
The court cannot make a parentage order unless it is satisfied that the arranged parents are an eligible couple, or one of the applicants is an eligible person.
The Act defines an eligible couple as two people of the opposite sex who are married to, or in a de facto relationship with, each other and:
- are unable to conceive a child due to medical reasons, (other than age); or
- although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease.
An eligible person is a woman who:
- is unable to conceive a child due to medical reasons (other than age); or
- although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or
- although able to conceive a child, is unable for medical reasons to give birth to that child.
You will need to attach evidence to your affidavit which supports your statement.
Approved plan
An approved plan is a document, signed by the arranged parents and the birth parent/s, and approved by the court, which sets out details of:
- any time the child is to spend, or communication that the child is to have, with the child’s birth parent/s or any other person (e.g., birth grandparents);
- any information that any of the parties is to provide to the other or any other person. This could include things like photos, school reports etc.
New assisted reproductive technology and surrogacy legislation
The Assisted Reproductive Technology and Surrogacy Bill 2025 passed the Western Australian Parliament on 3 December 2025 and received Royal Assent on 18 December 2025. The Assisted Reproductive Technology and Surrogacy Act 2025 is expected to commence in mid-2027.
The new law expands access to fertility treatment regardless of sex, relationship status, gender identity, sex characteristics or orientation. Information can be found at New assisted reproductive technology and surrogacy Act for Western Australia from mid-2027.
Adoption
Adoption is a legal process where a child who is unable to live with their birth parents becomes part of another family.
The Family Court of WA makes orders in relation to adoptions.
Adoption is a permanent, legal arrangement and the person who adopts the child takes on full parental rights and responsibilities for that child.
The arrangement cuts all legal ties between the child and their birth parents, and the birth parents no longer have legal rights over the child.
The child usually takes on the family name of the adoptive family and is given the same rights and privileges as if he or she was actually born into that family; for example, rights of inheritance.
To be eligible to adopt a child in Western Australia you must meet certain criteria including age and residency requirements.
For more information about the eligibility criteria go to Thinking about adoption (www.wa.gov.au).
Legal Aid WA
Western Australian Reproductive Technology Council
Family Court of WA
Department of Communities
Reviewed: 7 May 2026