Queensland District Court Judge Leanne Clare, SC, has made world legal history by ruling in a world first that conception is the act of becoming pregnant, not the act of fertilisation.

For natural conception, there is no difference, but with IVF there can be a significant difference. An embryo can be created from egg and sperm and then be frozen, sometimes for years, before being implanted in the mother to be to enable her to become pregnant.

The significance in Queensland is that the Surrogacy Act requires a surrogacy arrangement to be signed "before the child was conceived". If a frozen embryo were used, and fertilisation were conception, then the surrogacy arrangement was almost certainly signed after the child was conceived, meaning that an order transferring parentage from the surrogate to the intended parents could not be made.

In the case, in which I acted for the surrogate, the embryo was created in 2008, the surrogacy arrangement was signed in April 2011, and implantation occurred in July 2011. If “conception” had occurred at fertilisation, then the intended parents could never have obtained an order transferring parentage to them.

Judge Clare stated:

The answer seems obvious…  The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body…The phrase “conceived a child” is in common usage.  It is commonly understood to refer to an actual pregnancy.

When people talk about IVF treatments they tend to reserve the term “conceive” for … where an embryo actually takes to the uterus and the woman succeeds in becoming pregnant as distinct from the procedure of implantation.  I am satisfied that in the ordinary everyday language of the community, the term “conceive a child” means more than what can be achieved in a test tube and refers to the commencement of a pregnancy in a woman’s body. 

Stephen Page is an accredited family law specialist, and has acted for surrogacy clients throughout Australia and internationally.