A proposal that seeks to align state and federal surrogacy laws has been released for public consultation and submissions.
The paper titled, A Proposal for a National Model to harmonise regulation of Surrogacy was released by the National Standing Committee of Attorney Generals (SCAG) and the ministerial councils for Community Services and Health. GLBT activists have welcomed the move.
Corey Irlam, spokesperson for the Australian Coalition for Equality told MCV:
“We are cautiously optimistic that this provides an opportunity for the states to become equal and to update their laws to access surrogacy.
“Surrogacy is a state-based issue and the federal government has said they will acknowledge any state based surrogacy laws,” Irlam said.
The paper makes several recommendations that would benefit same-sex and heterosexual couples.
If the recommendations were successful, both partners in a gay male couple would be recognised as parents of the child.
Currently in Victoria, the non-biological partner in a gay couple is not seen as a legal parent.
“Without the ability for the non-biological parent to adopt as a second parent, gay men who are entering into a surrogacy arrangement will be unable to both be seen as the legal parents of the child,” Irlam said.
“The Victorian Law Reform Commission recommended that adoption would be addressed and the government have not acted upon this.”
Currently, the non-biological parent in a gay male couple has to apply for a parenting order from the Family Court to have any legal parenting rights.
Co-moderator of Gay Dads Australia Rodney Cruise told MCV parenting orders give non-biological fathers most of the rights as a parent.
“He can apply for a passport for the child, enrol the child in school and make medical decisions. It’s still not a full parent situation, but it’s the closest thing we have in Victoria.”
Cruise said lesbian couples have long been accessing parenting orders and gay men are following in their footsteps.
“Gay dads are exercising the same process and have had success, there has been no problems getting them.”
However, Cruise warned that obtaining a parenting order is an expensive course of action.
“It involves lawyers and that can be a costly process, whereas the Holy Grail for gay dads is what’s called second parent adoption, which would allow the non-biological father to adopt their partner’s biological child and become a full parent.
“With second parent adoption you are a parent for life, unlike a parenting order which only lasts till the child is 18. So this impacts on inheritance and other issues too.”
In December 2008 the Assisted Reproductive Treatment (ART) Bill narrowly passed. Part of the legislative reform will secure the non-biological parent in a lesbian couple to now be recognised as a legal parent.
“There was a recognition that we had to get lesbian families over the line first,” Cruise said.
“Without that parliament would not have considered two men as parents.
“The next logical step is for the community and government to get their head around gay males.”
Federal Attorney-General Robert McClellend said the laws should make it easier for surrogacy couples.
“The differing laws on this complex and sensitive issue often force prospective parents to enter another Australian state or territory to have surrogate children.” McClellend said.
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