The initial presumption under the Family Law Act 1975 (Cth) (‘The Act’) is that a child’s two legal parents are the woman who bears the child (the birth mother), and the male partner of the birth mother (the birth father) if there is one. These are generally the people who are recorded on the child’s birth certificate. If a child is adopted, then the child’s legal parents will include the adoptive parents as they can also be added to a birth certificate.
The above framework obviously raises issues for people in same sex relationships. The law has ever been reactionary, and family law and same sex relationships are no different. The law has been slow to catch up with medical advances such as Assisted Reproductive Technology (ART), which can allow same sex partners to have children, and has also failed to keep pace with social mores regarding same sex relationships generally.
The below examples are illustrative and discuss potential real world scenarios;
A child born to a lesbian couple
A lesbian couple are able to conceive of and give birth to a child through ART using donated sperm. The woman bearing the child will be the birth mother, and for ease of reference, her partner will be referred to as the co-mother.
Currently, federal law does not recognise a lesbian co-mother as a legal parent of an ART-born child. This can be compared to an ART-born child to opposite-sex couples, where both the woman bearing the child, and the man consenting to the ART process are presumed to be the child’s legal parents. WA, ACT, and NT law does, however, recognise a lesbian co-mother as a legal parent of an ART child. The effect of a WA, ACT or NT birth certificate on federal law is unclear.
A child born to a gay couple
A child born to a gay couple will obviously always have a birth mother. The birth mother will be the legal mother under all federal and state laws, unless she allows the couple to adopt the child.
If the mother, and either partner in a gay relationship, engage in ART using their denoted sperm, the presumption will be that the mother is sole legal parent. This is because under the ART presumptions, the male donor to the ART process will only be a legal parent if he is in a genuine relationship with the mother. Neither of the gay fathers will therefore be the legal parent, unless the mother allows adoption to occur.
If a couple attempt to use surrogacy to have a child, once again, unless the mother allows the couple to adopt the child, she will still be legal parent.
Step parenting arrangements
Opposite-sex couples are able to use step-parenting arrangements to become entitled to the same financial and work-related benefits available to the legal birth parent. Under the Act, however, a step-parent scenario is only possible if the step parent marries the legal parent. Same sex marriage is still unlawful in Australia, so this is not an option for same sex couples.
Despite the above, if a same sex couple manages to have a family relationship with a child through any method, it is likely that parenting orders can be used to set out and clarify the person’s responsibility for the child. Parenting orders can be applied for by a person with an interest in the ‘care, welfare and development of a child’ and the Federal Circuit Court can make the orders for any person it considers is proper; irrelevant of gender, biological, or legal relationships.
Parenting orders are made with the interests of the child as the primary consideration. The focus is necessarily on the context of the child’s relationship with the adults in its life, and not on their gender. Parenting orders are a flexible and useful method of partially bypassing the restrictive and archaic legislative framework in this area. A parenting order can, for example, allow a same sex couple to prove their right to exercise parental authority and consent with regards to schooling or medical treatment.
If you are in a same sex relationship and require legal assistance, plesase do not hesitate to contact to discuss your rights.