World Historic Legal Decision About Conception

Leanne Clare surrogacy conception

Queensland District Court Judge Leanne Clare, SC. made legal history in a world first regarding conception. 

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. This can be implanted in the mother 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 is used, fertilisation is the conception, then the surrogacy arrangement is almost certainly signed after the child is conceived.

This means that an order transferring parentage from the surrogate to the intended parents can’t 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 Leanne Clare SC 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.

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


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Stephen Page

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