Same sex relationships have become more recognised in society and along with this same sex families have developed. We live in a day and age where sociocultural standards are constantly evolving. The unfortunate truth is that the law has failed to keep up with these changes and current laws do not afford same sex couples the exact same rights as heterosexual couples.
In the 2011 census, it was found that 12% of same sex couples have children in their family. Family disputes in same sex families are complex and can become messy, as the law does not always allow for the functional parents of children to be considered the legal parents of children. The use of assisted reproductive technologies such as donor insemination or in vitro fertilisation have further complicated this issue as only one partner will be the biological parent of the child. Legislation has been passed so that in some cases, both partners in a same sex couple are recognised as the legal parents of a child.
The legal framework
The power to legislate in the area of family law is shared between the Commonwealth and the states. While the Commonwealth governs with whom a child should live, the states have the power to legislate in areas such as adoption, surrogacy and access to assisted reproductive technologies.
Can same sex couples be recognised as the legal parent of a child?
The fact that only one party in the same sex relationship is a biological parent of a child brings about the issue of who can be regarded as the legal parent of the child. In some cases, the law does allow for both parties to the relationship to be recognised as legal parents. The manner of conception of the child determines who will be recognised as legal parents. If the child is conceived through sexual intercourse, then the biological parents will be considered the legal parents. For example, even if a woman from a same sex couple has sexual intercourse with a friend who has agreed to father her child with the intention that the child will be the child of the same sex couple, he will still be considered the legal parent of the child. This means that he will acquire all the responsibilities attached to being a legal parent such as paying child support.
What happens if you are not recognised as the legal parent of a child
If you are not recognised as the legal parent of a child, the Family Court can still make a parenting order in your favour. This order is made if the applicant is considered to be a “person concerned with the care, welfare or development of the child.” A parenting order may deal with whom the child lives with, the time the child spends with a person, the allocation of parental responsibility for the child, the communication a child can have with other persons, maintenance of the child, any aspect of the care, welfare or development of the child and any other aspect of parental responsibility for the child. However, the major difference that remains between having a parenting order and being recognised as a legal parent of the child is that parenting orders expire when the child turns 18.
If your child is born through assisted conception technologies, will you be recognised as the legal parent?
The states regulate the use of procedures such as in vitro fertilisation and donor insemination in Australia. However, not all States have definitive laws in these areas. In NSW, the Assisted Reproductive Technology Act 2007 allows all women to access these procedures, regardless of whether they are married or not. However, in some states such as South Australia, women are only allowed to seek these kinds of procedures if they “appear to be infertile”. This excludes single women and a woman from a same-sex couple.
In recent years, all states and territories in Australia have introduced laws, which recognise non-birth mothers in lesbian relationships as legal parents of children conceived in the relationship. The relevant law in NSW is Status of Children Act 1996 (NSW) s 14(1A). Similar legislation exists in each state and territory. In these cases, the sperm donor does not have the status of a legal parent.
The Family Law Act 1975
The Family Law Act 1975, which is the Commonwealth legislation, was amended in 2008, to allow both mothers in a same sex relationship to be recognised as legal parents as a result of assisted reproductive technologies. However, both mothers need to have consented to the procedure.
There have been situations where a lesbian couple and a gay male couple have agreed that a child conceived will be parented by all four parents. The law does not permit a child to have more than 2 parents. Parenting orders can be made for the men in this situation, but the women will be considered the legal parents of the child.
Legislation relating to children born via surrogacy in Australia and overseas
All states and territories in Australia, with the exception of the Northern Territory have legislation permitting altruistic surrogacy arrangements. Altruistic arrangements refer to those where the surrogate is not paid. Commercial arrangements refer to those where the surrogate is paid. These legislations allow courts to make orders severing ties between the surrogate mother and the child. In 2012, the first application to have parentage transferred from a surrogate mother to a gay male couple in NSW was approved. The relevant legislation in NSW is the Parentage Act 2010 (NSW).
Commercial surrogacy is prohibited in Australia. In New South Wales, Queensland and Australian Capital Territory, entering into a commercial surrogacy agreement overseas is prohibited.
The Family Law Act 1975 provides for the transferring of parentage from the surrogate to the parents. However, these laws do not provide for the transfer of parentage in overseas surrogacy arrangements. If the overseas arrangements were altruistic, you may be able to apply for the transfer of parentage. If the Family Court does not recognize parentage, the applicants can still apply for parenting orders.
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