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 (irrespective of their sex or gender identity), 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 husband 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 and both must sign the birth registration statement. However, the Registrar 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.
If only one parent signs the birth registration statement, he or she 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.
See Births, Deaths and Marriages Registration Act 1996 (SA) s 15.
If a child is born through a recognised surrogacy agreement, either or both commissioning parents may make an application to the Youth Court to be recognised as parents [Family Relationships Act 1975 (SA) s 10HB(13)]. The Registrar of 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 10HD]. For more information about surrogacy, see Having a child, Surrogacy.
How is a birth registered?
A birth registration statement must be lodged with the Registrar of Births, Deaths and Marriages ('the Registrar') within 60 days of the child's birth. The maximum penalty for not doing so is $1 250.
See 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.
See Birth, Deaths and Marriages Registration Act 1996 s 16(2).
Information to be included in the birth registration statement
The following information must be provided in the birth registration statement [see Births, Deaths and Marriages Registration Regulations 2011 Reg 5]:
- the period of gestation of the child (in weeks) and whether the child was born alive;
- the date and place of birth;
- the child’s sex (if determined);
- the child’s weight at birth (in grams);
- the child’s name (this can be provided for a still-born child but it is not mandatory in such cases);
- if the child was the product of a multiple birth, the total number of children born and the place in the order of birth of the child;
- the name of the child’s mother and, if it is different to her current name, the mother’s name at birth (or on adoption);
- the date of birth, place of birth, occupation and residential address of the child’s mother;
- the name of the child’s father;
- the date of birth, place of birth, occupation and residential address of the child’s father;
- if the child’s parents are married or in a registered relationship – that fact and the relevant date and place;
- the name, sex and date of birth of each previous child of the child’s mother and father;
- the sex and date of birth of each previous child of the child's mother and a person other than the child's father;
- whether the child’s mother and father are of Aboriginal or Torres Strait Islander descent (or both);
- the name and business address of the doctor or midwife responsible for the professional care of the mother at the birth.
In the case of children conceived as a result of a fertilisation procedure:
- the name (if known) of the biological parent who donated the semen or ovum resulting in the child’s birth (the donor); and
- the sex (if known) of the donor; and
- the donor’s date of birth and place of birth (if known).
This information is also to be recorded in the Register [Births, Deaths and Marriages Registration Act 1996 (SA) section 14(2) and reg 6]. Once the Donor Conception Register is established under the Assisted Reproductive Treatment Act 1988 (SA), this information will no longer be required in the birth registration statement [s 14(5)].
Can details of parentage be altered after the birth has been registered?
There are provisions to allow alterations about a child's parentage under the following circumstances:
- where the father and mother of the child make a joint application for the addition of the information; or
- one parent of the child makes an application for the addition of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason; or
- if a court directs the inclusion or correction of information in the Register; or
- the Registrar is advised of a finding by a court that a particular person is a parent of the child.
See Births, Deaths and Marriages Registration Act 1996 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.
See 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 Magistrates Court for orders resolving the dispute. For more information, see Changing a child's name.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.