Anna Whitelaw looks at the issue of parental rights for lesbian couples.
Last year, the State Government agreed to throw out its outdated laws governing assisted reproductive technology and surrogacy. Simultaneously, it moved to rectify the uncertain legal position of lesbian parents: specifically, the status of the non-birth mother.
The decision has brought peace of mind to lesbian couples like Jeanine, 38, a marketing executive, and her partner of ten years, Lisa, 39, who works in the police force.
Lisa and Jeanine have two children, boisterous four-year-old son Liam and five-month-old daughter Meg, both conceived by IVF. Under existing Victorian law, Lisa is not legally recognised as the parent of either of the children, because she is not their biological mother. Her name does not appear anywhere on her children’s birth certificates, and she has no legal authority to give consent to emergency medical procedures, or to enrol her son into childcare or school. If she were to die suddenly, her children would not necessarily be entitled to inherit her superannuation, her estate, or compensation payments.
If Jeanine and Lisa were to separate, she could lose custody of the children; or alternatively, avoid paying child support. By contrast, if she were a man, she would be automatically treated as the father of the two children.
“You start to think more about your own mortality once you have children,” says Jeanine. “After I had Liam, I began to think, ‘If something happened to me, if I was in a car accident, and in a coma, or dead what would happen to him?’ Lisa would have to face all these questions about who she was.”
“Not to mention [that] having to explain yourself everywhere you go gets a little tedious,” Lisa adds, as when she started picking up Liam from childcare while Jeanine was at work. “I had to sign something, and I was asked, ‘Are you the nanny?’”
If a lesbian couple use the sperm of a known donor, such as a male friend, the donor is legally considered to be the father. In at least once instance in Australia, Family Courts have been willing to grant the sperm donor the custody rights. Jeanine and Lisa purposefully used an anonymous donor because they were afraid of the consequences.
“We both have brothers, so we didn’t feel we needed an additional male influence in our kids’ lives,” explains Jeanine. “We didn’t want to complicate the situation, and the legal uncertainty made us nervous.”
To date, the only protection offered to non-biological mothers is a parenting order issued by the Family Court granting limited parental rights. But parenting orders are not automatic, so a couple must petition the Court, and pay hefty legal costs; an addition financial burden for same-sex couples. In the case of Jeanine and Lisa, parenting orders for Liam cost $4000, and they’re in the process of getting parenting orders for Meg, which will cost another $2500.
Moreover, parenting orders are not the same as being a legal parent, as they only apply in limited circumstances, they can be contested, and they expire when the child turns 18.
“There are many legal boundaries to the non-biological parent in rainbow families being recognized as a legal parent, so children living in rainbow families aren’t given the same protection as heterosexually-parented children,” explains Rainbow Families Council spokesperson Felicity Marlowe.
Under Victoria’s proposed law reforms, lesbian couples will be given the same parental rights as heterosexual couples, recognizing both women as parents from the moment of conception, irrespective of who gives birth to the child. It will also clarify that sperm and egg donors are not parents.
For Jeanine, Lisa and their children, it’s recognition which is long overdue.
“It is a concern for Lisa,” Jeanine says, “It irks her that she isn’t on the birth certificate, and there’s a big gaping hole where the father’s name should be. This will give us formal recognition that [Lisa] is part of the family.”
A spokesperson for the Attorney General’s office, Meaghan Shaw, confirmed that the proposed law reforms are currently being drafted, and are expected to be introduced to state Parliament in the middle of the year.
While the legislation is expected to pass both Houses with the backing of the Greens, the Victorian Gay and Lesbian Rights Lobby’s Demetra Giannakopoulos warns that the reforms will face opposition from the conservative Christian right.
“The whole gay and lesbian community needs to get behind these reforms, because that opposition is only going to get louder,” Giannakopoulos told MCV.
While the reforms are clearly important for lesbian couples who have or who are planning to have children, the social changes such law reforms represent have ramifications for us all, Giannakopoulos believes. As she sees it: “Every time a wall of discrimination comes down, it brings us closer to full equality.”
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