The purpose of this paper is to examine legislation and case law insofar as it relates to parental responsibility in same sex parenting cases. In doing so, it is intended to identify some legal issues and difficulties that will arise in various cases, and hopefully offer some practical suggestions to deal with those issues.
The fact situations this paper will examine will be the less common dealt with by most family lawyers – that is, where there is no dispute between the parties and there has been no breakdown of a relationship. Who has parental responsibility in a family comprising a same sex couple that has a child? Who is a parent for the purposes of the Family Law Act ?
Issues of residence and contact disputes, usually arising at the end of relationships, will not be examined. Similarly, this paper will not examine in any great detail parental responsibility for children conceived as a result of sexual intercourse between opposite sex parties.
In the absence of conception via opposite sex intercourse, conception will of necessity involve an artificial conception procedure. It should be noted that in this paper, the expression “artificial conception procedure” (As used in S.60H of the Family Law Act ) will be used to cover commonly used expressions such as IVF, infertility treatment and artificial insemination. Different legislation in various States and Territories use different expressions to describe a procedure where conception occurs with artificial assistance, ie without sexual intercourse. The State and Territory legislation dealing with artificial conception procedures will be referred to generally as reproductive technology legislation, and clinics where artificial conception procedures are performed will be referred to as reproductive technology units.
Where same sex parties are concerned, the conception of a child will occur in four general fact situations, as follows: -
1. A lesbian couple where one party conceives via an artificial conception procedure with an anonymous sperm donor;
2. A lesbian couple where one party conceives via an artificial conception procedure with a known sperm donor;
3. A gay male couple entering into a surrogacy arrangement, where one or both donate sperm; and
4. A gay male couple entering into a surrogacy agreement, where the sperm is from an anonymous donor.
The general fact situations referred to are not as uncommon as people might think. In October 2002, the Gay and Lesbian Rights Lobby Inc (NSW) (“GLRL”) released a discussion paper in relation to legal and other issues of concern to gay and lesbian parents. The contents of the discussion paper is drawn from research on same sex couple family forms from Australia, the United Kingdom and the United States.
Following on from that discussion paper, the GLRL held community consultations in New South Wales between December 2002 and February 2003, and this culminated in a report . The findings of the report, following on from the community consultations and research, included: -
* Up to 10% of gay men and 20% of lesbians are parents;
* Up to half of these parents had children from a previous opposite sex relationship;
* Most lesbian parents are now conceiving through artificial conception procedures;
* About 85% of lesbian parents are having children in a same sex relationship;
* Between 50%-70% of lesbian parents using an artificial conception procedure use a known sperm donor, and most are gay men;
* Between half and two thirds of gay sperm donors had some contact with the child;
* The family form, and sharing of parental responsibility, was not confined to a “model” of two same sex parties and in some cases extended to other persons including the sperm donor and his partner.
“Family” is not a concept which is defined in the Family Law Act . Despite some conservative views, it takes different forms in different social, ethnic and religious backgrounds. In the case of families lead by same sex parents, its form has been recognised by the Family Court of Australia in various cases, and it is worth noting the comments of Nicholson CJ who said:
"One of the fundamental misconceptions which plagues me is the failure to understand that heterosexual family life in no way gains stature, security and respect by the denigration or refusal to acknowledge same-sex families. The sum social good is in fact reduced, because when a community refuses to recognise and protect genuine commitment made by its members, the state acts against everybody’s interests."
Although the Family Law Act contains some provisions dealing with artificial conception procedures, the laws regulating reproductive technology and surrogacy are dealt with by the States and Territories and vary.
In the case of a lesbian couple having a child conceived via an artificial conception procedure, with a known or unknown sperm donor, a presumption of parentage will only apply to the birth mother under S.60H(2) if there is a relevant prescribed State or Territory law, as identified by Fogarty J in B v J (1996) FLC 92-716. It would otherwise be expected that the child’s birth certificate would note the birth mother as such, and a presumption of parentage would arise from that under S.69R of the Family Law Act. In addition, as it was found in Re Mark:an Application relating to parental responsibilities [2003] FamCA 822 that S.60H does not provide an exhaustive definition of “parent”, other matters could be applied in concluding a birth mother having a child as a result of an artificial conception procedure is a parent, such as the application of the natural meaning of “parent” as in Tobin v Tobin (1999) FLC 92-848.
As for her partner/the co-mother, a presumption of parentage may apply, depending on where they are from. If they live in Western Australia, she could be noted as a parent on the birth certificate and a presumption of parentage would then apply to her, in addition to expressly applying at a state level where she gave her consent to the artificial conception procedure. However, as none of Western Australia’s laws are prescribed for the purposes of S.60H of the Family Law Act , and this section does not make provision for persons in the position of the co-mother, the presumption of parentage to the co-mother at state level will not result in a presumption of parentage under s.60H of the Family Law Act . If they are from the Northern Territory, there is a specific presumption of parentage in her favour arising out of conception via an artificial conception procedure at a territory level. However, the section of the relevant Northern Territory Act is not a prescribed law for the purposes of S.60H of the Family Law Act, and again that section makes no provision for persons in the position of the co-mother.
Where an anomaly arises due to relevant State or Territory laws not being prescribed for the purposes of S.60H, the Court can take into consideration other matters to conclude a person is the parent of a child. It is submitted that presumptions of parentage created by state/territory law, as in Western Australia and the Northern Territory in favour of the co-mother of a lesbian couple, could be one such consideration. This is all very well from a legal perspective, but on a day to day basis how would a co-mother of a lesbian couple from the Northern Territory establish her parentage to various authorities? Production of a birth certificate is the most common method of verifying parentage, but in the absence of birth registration being available for the co-mother other methods of verification of parentage would need to be sought.
A presumption of parentage can arise by operation of S.69S by way of a finding by the Court that a person is the parent of a child. This, of necessity, would require an application for parenting orders by way of a Form 3, and findings by the Court at a hearing, although presumably not defended. This would seem a difficult route to take for a same sex couple, to achieve parental responsibility for both.
In places where no presumption of parentage exists in favour of the co-mother, the solution involves seeking parenting orders under the Family Law Act where both parties have responsibility for the long term care welfare and development of the child. It is suggested this be done by way of a Form 11 Application for Consent Orders, filed together with the proposed orders and a short Affidavit explaining the role of the parties, how the child was conceived and details about the sperm donor if known. If the sperm donor is known, he may also be a party to the orders, depending upon whether all parties agree he is to have a role in the child’s life and have parenting orders in his favour. If the sperm donor is not known, then this should be set out in the Affidavit.
When filing the material, it is recommended it be accompanied by a letter to the Duty Registrar explaining the Application. Although consent orders where a birth mother confers parental responsibility upon a co-mother does not invoke the requirements of S.65G, it may be helpful to point this out in the letter accompanying the Application for Consent Orders, as anecdotally it is understood in some of these cases a S.65G report has been ordered unnecessarily. It may be worthwhile asking to speak to a friendly Deputy Registrar, if available, to explain the matter and what your client(s) wish to achieve.
It is understood that the Family Court is working on a standard procedure to deal with cases where same sex couples seek parenting orders in relation to children conceived through an artificial conception procedure. A draft practice direction the Family Court was previously working on encompasses the procedure suggested above, except the part about asking to speak to a friendly Deputy Registrar. Realistically, the previous draft practice direction, and presumably any future standard procedure, will only really apply to lesbian couples as the converse case with a gay male couple involved in a surrogacy arrangement would no doubt attract a S.65G report, and other complex issues exist, as was the case in Re: Mark (supra). At this stage it is not known whether a standard procedure has been resolved, or how far it has advanced.
At present, whether the sperm donor is known or not, there will be no presumption of parentage in his favour and he will therefore have no parental responsibility. However, this will not of itself preclude a sperm donor from seeking parenting orders in relation to a child, as was the case in Re Patrick: (An Application Concerning Contact) [2002] FamCA 193. It will then be a matter for the Court on the individual facts of the case to determine whether the sperm donor is a person concerned with the care welfare and development of the child, and whether it is in the child’s best interests to make any parenting orders sought.
Otherwise, in some fact situations such as in Re: Mark , it may very well be the case that the Court can make a finding a sperm donor is a parent for the purposes of the Family Law Act , despite the provisions of S.60H. That is for another case, and it is suspected the Court may endeavour to avoid this outcome given the potential ramifications.
Surrogacy arrangements for gay male couples will be rare, given the illegality of commercial arrangements in most States and Territories, and the unenforceability of altruistic arrangements. In places in Australia where it is not illegal, neither party of a gay male couple entering into a surrogacy arrangement will have a presumption of parentage in his favour, although if one donated sperm for an artificial conception procedure it is yet to be decided whether he is a parent for the purposes of the Family Law Act . In surrogacy situations where no legal impediment exists, as was the case in Re: Mark , the parties would need to apply for parenting orders conferring on them both responsibility for long term care welfare and development of the child. This is not a matter that would be dealt with by a Deputy Registrar in chambers, and by necessity would involve a Form 1 Application for Final Orders to be determined presumably by a judge. It should be noted, however, that this process could be done through the Federal Magistrates Service.
Parenting Plans under Part VII, Division 4 of the Family Law Act will generally not be an option for same sex parents. S.63C provides a parenting plan is an agreement “…made between the parents of a child”. Given the problems with the existence of a presumption of parentage under the provisions of the Family Law Act or state/territory law in most cases of same sex parents, they will generally be outside the requirements before they can enter into a parenting plan. However, Western Australian lesbian couples may have this option available to them if both are registered on a child’s birth certificate as parents, and filing the birth certificate with the parenting plan would be sufficient to satisfy a Deputy Registrar of the Family Court of parentage. For lesbian couples in the Northern Territory, the birth certificate will not have provision for the co-mother being noted as a parent, and it is suggested that a brief affidavit be filed along with the parenting plan to explain the facts of how conception occurred (without going into intrusive detail) giving rise to a presumption of parentage to the co-mother.
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