Clarifying legal tests: Who a parent is and how to warn of unknown risks

Excerpt

We live in an increasingly complex world: family relationships are changing, technology is making inroads into medical treatment, and what was once seemingly impossible is, at times, now possible. The law often struggles to keep up with medical advances and shifting boundaries of relationships as they give rise to legal questions of increasing complexity, but in the absence of specific regulatory frameworks, courts are called upon to apply well-established principles to new issues as they come before them. This is not a problem unique to our era; imagine the days when cars first took to the roads, planes to the sky, sounds were transmitted through radio, or handheld recording devices were introduced. Humanity and technology are constantly evolving, and systems of regulation must also adapt and evolve. The two decisions considered here provide practical examples of how well-established legal tests can be applied to new challenges and fill apparent regulatory gaps so that clarity can be found. Whilst the law is often “in the rear and limping a little” (Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383), it can provide answers to new problems, such as: Is a sperm donor a father and how can a doctor provide information about the unknown (and unknowable) risks of innovative medical treatment? …