Who is presumed to be a parent upon the birth of a child?

A child born to a woman during her marriage or marriage-like relationship with a domestic partner, or within 10 months of the marriage or relationship ending, is generally presumed (in the absence of proof to the contrary) to be the child of its mother and the spouse or domestic partner [see Family Relationships Act 1975 (SA) s 8]. Domestic partner is defined in s 11A to include those in a registered relationship, as well as those who have been living together in a close personal relationship (as a couple on a genuine domestic basis) for 3 years or who have had a child together.

Different presumptions apply where the child is conceived following fertilisation procedures [s 10C]. These serve to recognise the intended parents, rather than the biological parents. See also Reproductive technologies.

Who is responsible for registering a birth?

Both parents are jointly responsible for registering the birth of their child with Births, Deaths and Marriages, and both must sign the birth registration statement.

The Registrar of Births, Deaths and Marriages may accept a statement signed by only one parent if satisfied it is impossible, impracticable or inappropriate for the other parent to sign whether because of death, disappearance, ill health, unavailability or the need to avoid unwarranted distress [Births, Deaths and Marriages Registration Act 1996 (SA) s 15]. This might include circumstances involving family violence.

If only one parent signs the birth registration statement, they must attach an explanation of why the other parent has not signed. The Registrar has the authority to make further enquiries if not satisfied with the explanation given.

Births, Deaths and Marriages have prepared a useful fact sheet for circumstances in which one parent is registering the birth of their child, accessible via the sa.gov.au website.

If a child is born through a lawful surrogacy agreement, an intending parent/s may make an application to the Youth Court to be recognised as a parent/s [Surrogacy Act 2019 (SA) s 18(1)]. Section 8 of the Surrogacy Act 2019 (SA) states that parenting presumptions under the Family Relationships Act 1975 (SA) continue to apply to a child born as a result of a surrogacy agreement, until a court orders otherwise as to parentage. The Registrar of the Youth Court must then provide the Registrar of Births, Deaths and Marriages with written notice of the order and other details required for the purposes of birth registration [s 21]. For more information about surrogacy, see Surrogacy.

How is a birth registered?

A birth registration statement must be lodged with the Registrar of Births, Deaths and Marriages within 60 days of the child's birth. The maximum penalty for not doing so is $1,250 [Births, Deaths and Marriages Registration Act 1996 (SA) s 16(1)].

What if a birth is registered late?

A birth can still be registered outside the 60 day period and the Registrar must accept a birth registration statement even if lodged outside of this period [Birth, Deaths and Marriages Registration Act 1996 (SA) s 16(2)].

Information to be included in the birth registration statement

The birth registration statement must include at least the following information [see Births, Deaths and Marriages Registration Regulations 2011 reg 5]:

Children conceived as a result of a fertilisation procedure

The Minister may keep a register of donors of human reproductive material used in, or in relation to, assisted reproductive treatment provided in accordance with the Act and resulting in the birth of a child. (Assisted Reproductive Treatment Act 1988 (SA) s 15(1)].

The register contains:

A certificate stating that a donor was, or was not, registered on the donor conception register in relation to the birth of a specified child, and purporting to be signed by the Minister will, in the absence of proof to the contrary, be accepted in legal proceedings as proof of the registration, or of the fact that the person was not so registered [s 15(5)].

Can details of parentage be altered after the birth has been registered?

The Registrar may alter the details of parentage after a birth has been registered if [Births, Deaths and Marriages Registration Act 1996 (SA) s 18]:

A parent or child or somebody whose rights are affected by the relationship may apply to the Magistrates Court for a declaration of parentage [Family Relationships Act 1975 (SA) s 9].

Must the birth registration include the name of the child?

Yes, the birth registration statement must include the name of the child. Although the name is a matter of choice for the parents lodging the statement, the Registrar can assign a name to a child if the name stated in the birth registration statement is a prohibited name or the birth registration is lodged by both parents and they satisfy the Registrar that they are unable to agree on the child's name [Births, Deaths and Marriages Registration Act 1996 (SA) s 21].

What happens if there is a dispute about the child's name?

In the event of a dispute between parents as to the child's name, either parent may apply to the South Australian Civil and Administrative Tribunal SACAT for orders resolving the dispute. For more information, see Changing a child's name.