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Can a Court decide arrangements for an Unborn Child?

By 26 May 2015Family Law
Unborn Child

The question of whether the Family Court has the power to make Orders that bind a pregnant mother is a topic of great interest.

In circumstances of the parents being separated, if there is disagreement as to birthing arrangements, attendance at the birth, or arrangements for the child to see the parents after the birth, can a parent apply to the Court to decide before the birth?

The Family Law Act 1975 (Cth)  deals with the powers of the Court on children’s matters and it defines a child as follows: 

(a)….. includes an adopted child and a stillborn child; and

(b)….. means a person who is under 18 (including a person who is an adopted child)”

There is no mention of unborn child.

As the Family Law Act does not mention unborn children, you then have to look at previous cases.  There was the case of St George’s Healthcare NHS Trust v S [1998] All ER 673 UK, where a decision was made that a foetus is not a legal person, although it is considered to be both human and alive, and hence worthy of protection in both criminal and civil law.

In Australia there are two relevant cases the first of which is Re F (In Utero) [1988] Fam 122 (CA) where there was a mother with poor mental health and a nomadic lifestyle, and it was held that the Mother could not be prevented from indulging in a lifestyle harmful to the foetus.

In the Marriage of F (1989) 13 Fam LR 189 (Cth), there was a husband and wife who separated when the wife was 13 weeks pregnant.  The wife had indicated her intention to terminate the pregnancy and the husband sought to prevent the wife from terminating the pregnancy.  The Court held that the foetus had no right at common law which could be enforced on its behalf by the husband.  The Court also held that, on balance, the husband  seeking that his offspring be born was secondary to the wife in being free to decide to give birth or not, as it affected her far more than it did the husband.

Based on the above previous cases it appears the Family Court can not make Orders in relation to an unborn child.  However, the Court can make Orders for a mother to be financially supported during pregnancy.

Also there is provision under the Child Protection Act 1999 (Qld) for a Court to make a Child Protection Order for an unborn child.

If you have any queries in relation to Family Law matters, please do not hesitate to contact our Ipswich office on (07) 3812 2300 or Gina Duncan at our Gatton office on (07) 5462 1566