BECOMING A PARENT

Many lesbians and gay men consider having children. Some options and their legal implications are discussed in this section. You should also consider getting your own legal advice.

Reproductive technologies

Victoria, South Australia and Western Australia have specific laws that regulate reproductive technology. The Infertility Treatment Act 1995 (Vic) excludes single women and same-sex couples from using reproductive technology in Victoria. This has not been changed by the law about domestic partners.

This means that to use reproductive services through a clinic, particularly donor insemination, you may have to go to another state or territory such as New South Wales, the ACT or Tasmania. Clinics in Albury, Sydney, Hobart and Canberra are used to assisting women from Victoria.

On 28 July 2000 the Federal Court ruled that the Infertility Treatment Act contravenes the federal Sex Discrimination Act, by not allowing some women to use reproductive technologies on the basis of their marital status. However the Victorian government has not amended the Infertility Treatment Act to allow access for single women and lesbians.

The Infertility Treatment Authority, which administers the Act, has said that reproductive technology services are open only to lesbians and single women who are medically infertile. Married or heterosexual de facto women can receive treatment even if they are not infertile. This means that a lesbian who is medically infertile is able to use IVF services in Victoria but donor insemination is generally not available.

Donor insemination is a possible treatment for some rare forms of medical infertility. If you have this kind of infertility you may be able to receive donor insemination under the Infertility Treatment Act in Victoria.

Contact the Infertility Treatment Authority on 8601 5250 for more information. The Fertility Access Rights (FAR) working group of the VGLRL is working to change the law to end discrimination. FAR believes that all women should have access to all forms of assisted reproductive technology regardless of their marital status or sexual orientation and that access to donor insemination should be provided on the basis of lack of access to fertile semen, rather than infertility of the woman. Go to www.ita.org.au

Possible law reform

In late 2002 the Attorney General asked the Victorian Law Reform Commission to look into the eligibility criteria for assisted reproduction and adoption. The commission published a consultation paper on 20 January 2004. During 2004 three further papers were published, exploring the rights of children born from assisted reproductive technology. During 2005 the commission released three position papers, seeking public comment on the areas of access, parentage and surrogacy. The final report to Parliament is expected to be released in 2006, which may lead to reform of Victorian legislation. You can go to the commission website for updates and copies of all papers: www.lawreform.vic.gov.au

Self-insemination

Under the Infertility Treatment Act, artificial insemination can only be done by an approved doctor or at a licensed hospital or infertility treatment clinic. The penalties for breaching the Act are a maximum $48,000 fine or up to four years' imprisonment or both. The terms of the Infertility Treatment Act can be read as saying that self-insemination using a known sperm donor is illegal. Many people are using this alternative, and because these arrangements are private, the law is extremely difficult to enforce. There have not been any prosecutions so far in Victoria.

Good news

The Infertility Treatment Authority has accepted legal advice that self-insemination by a woman at home is not illegal. That is, self-insemination does not breach the Infertility Treatment Act. However, some people have had questions asked by the Registrar of Births Deaths and Marriages when they attempt to register their child's birth, for example at which hospital was your child conceived? This can lead to difficulties and you should seek legal advice if this happens to you.

Health and safety in self-insemination

Using fresh sperm for self-insemination can create health risks for the woman and prospective baby if the sperm carries infection that can be transmitted to the woman. Such infections include chlamydia, gonorrhoea, Hepatitis B, syphilis, HIV and CMV (cytomegalovirus). There are now two options to improve the safety of self-insemination. One is to use fresh sperm, but only after the known donor has been tested for all infections and has remained risk free for at least three months before the test. He would then need to remain safe during the whole period of the inseminations. The second is to have him tested and his sperm stored (frozen) at a clinic sperm bank. The sperm is not released until six months have passed and the donor has been re-tested and is infection-free. The sperm is then released to the woman for home insemination each month. This service is available only through Melbourne IVF in Victoria and only to women with a known donor. If you hope to use this service, you and your donor need a referral to Melbourne IVF from a doctor.

If you are considering either of these options you can also contact a support group.

Surrogacy

Surrogacy arrangements are illegal in Victoria under the Infertility Treatment Act.

Adoption

Adoption is governed by state law (Adoption Act 1984). To adopt a child in Victoria you usually need to have been married or in a heterosexual de facto relationship for at least two years. Adoption has not been changed by the new law relating to domestic partners. This remains an area of law which discriminates against same-sex couples. Single people can only adopt if there are special circumstances. Same-sex couples cannot adopt a child as a couple, although one of the couple may be able to do so as a single person.

Second-parent adoption

Under the Adoption Act a child legally becomes the child of the adoptive parent and the legal relationship with the birth parent is replaced. This means a non-biological parent cannot adopt their same-sex partner's child without at least one of the birth parents giving up their parental status, in other words a child cannot legally have more than two parents. It is possible, however, for the Family Court to make a parenting order under the Family Law Act which gives legal recognition to your shared parental responsibilities. This gives the non-biological parent the same responsibilities as the biological parent under the Family Law Act. All forms of adoption are being reviewed by the Victorian Law Reform Commission.

Fostering

Same-sex couples can become foster parents. Individual fostering agencies have their own policies and many are happy to support gay men and lesbians as foster parents. Check with the agency in your local area. For information about fostering, see the Foster Care Victoria website at www.fcav.org

LIVING WITH/PARENTING CHILDREN

Gay men and lesbians live with and parent children in many situations. Legal rights and responsibilities in relation to those children can be complex, particularly if they are conceived using reproductive technology or self-insemination.

This is a new area of law that is still developing and many of the issues have not been fully tested in court. Most of the law about parents and children is federal law and so is not affected by the Victorian law about domestic partners.

The information here is a guide and should not be relied on as legal advice.

Parental responsibility

The Family Law Act 1975 (Cth) says that both parents of a child have equal responsibility for their care, welfare and development - regardless of whether they are married, separated or have never lived together. The term ‘parents' means biological and adoptive parents. The Act stresses children's rights and best interests, NOT parents' rights. Unless it is contrary to their best interests, children have a right to know and be cared for by both their parents and a right to spend significant time with their parents and other ‘significant' people.

Who is considered a ‘parent'?

Biological and adoptive parents automatically have parental responsibility. A semen donor, however, is not considered to be a 'parent' under the Family Law Act or the Child Support Assessment Act.

PARENTING ORDERS

There are several issues to be addressed in parenting orders:

whether the legal presumption that both parents have parental responsibility for the child's long term care, welfare and development is to be challenged
who the child will live with and whether equal shared care between the parents is in the child's best interests
if equal shared care is not appropriate, what kind of time the child will spend with each parent and with other significant people in his/her life
any other aspect of day-to-day or long-term parental responsibility, e.g. religion, medical treatment, education, extra-curricular activities.
whether to make a maintenance order - not often used as all children born after 1 October 1989 are covered by the Child Support Scheme instead, but can be used for children over 18 who still need financial support.

Who can apply for a parenting order?

An application can be made by a parent, grandparent, the child or anyone who is ‘concerned with the care, welfare and development of the child'. This includes a non-biological parent and a known sperm donor.

How the court makes its decision

The court's decision is based on ‘the best interests of the child', which is the court's paramount consideration.

The primary factors a court must consider include:

the benefit to the child of having a meaningful relationship with both of the child's parents, and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional considerations include:

any views expressed by the child taking into account the child's age and level of maturity
the nature of the relationship of the child with each parent and any other person, including grandparents or other family members
the capacity of each parent and any other significant person in the child's life to provide for the financial, emotional and intellectual needs of the child

the willingness of each parent to promote the child's relationship with the other parent
the likely effect of any change in the child's circumstances including living arrangements
the maturity, sex, lifestyle and background of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
any family violence involving the child or a member of the child's family
any family violence order that applies to the child or a member of the child's family if that order was made at a contested hearing or is a final order
the attitude of each parent to the child and to the responsibilities of parenthood as demonstrated by each parent
whether the child is an Aboriginal or Torres Strait Islander child and that child's right to pursue and enjoy his or her culture
any other factor or circumstance the court thinks is relevant.

Relevance of parent's sexual orientation

A parent's sexual orientation is not relevant unless the court believes in the particular case that it will affect the best interests of the child. The court is more concerned about who the primary carer has been and what the child's relationship with each parent and other people has been and is likely to be in future. However, judges vary and sometimes the sexual orientation of a parent becomes a factor. The Family Court has dealt with a large number of applications for a parenting order by non-biological mothers. The majority have been granted without dispute.

Non-biological parents in same-sex relationships are not legally considered ‘parents' under family law. Neither are sperm donors, even though there is a biological relationship with the child. But there are practical steps that non-biological parents and known sperm donors can take to clarify their roles and strengthen their legal position. These issues are discussed below under ‘What to do'.

An exception

Under changes made to the Children and Young Persons Act 1989 (Vic) in 2001, the live-in domestic partner of child's biological parent is also considered a parent of the child. This is only relevant to some state law issues (see below for more detail). It does not affect the definition of parent under family law.

SEPARATION AND DISPUTES

Disputes about children under the age of 18 are covered by the Family Law Act, which is a federal Act. Property disputes between same-sex couples are NOT covered by the Family Law Act. See ‘Property' for a discussion of this. Try to reach agreement first.

Under the Family Law Act people are encouraged to reach agreement about what happens to children if the relationship breaks down. This is particularly important for gay men and lesbians because of the uncertainty about the legal status of our relationships under federal law. If you cannot come to an agreement by yourselves, you might consider attending a mediation centre which specialises in family dispute resolution. An agreement can be made informally, with no court involvement. If you want your agreement to be legally binding, you can ask a family law court to make a consent parenting order. Whatever you do, it's a good idea to get legal advice before signing any agreement. (see ‘Taking action').

If you can't agree - residence and contact disputes

You can apply to the Family Court or the Federal Magistrates Court for parenting orders, but you will need to attend some kind of family dispute resolution before a court will make those orders.

If you can't agree - child support disputes

If the dispute is about financial support for children, it is dealt with by the Child Support Agency. However, only ‘parents' of the children can be ordered to pay child support under this scheme. A sperm donor is not recognised as a parent for the purpose of child support.

ANONYMOUS SPERM DONOR

A sperm donor who donates sperm anonymously through a fertility treatment clinic is not recognised legally as the father of the child. This means he does not have any right to see the child, nor does he have to provide financial support.

In Victoria once a child turns 18, they can find out who the sperm donor is through the donor register. This is not the case in all other states and territories. It is now a condition of donating sperm that donors must agree to the child being able to find out their identity when the child turns 18. If the child (or their parents, if the child is under 18) consents donors can also find out information about the child.

KNOWN SPERM DONOR

A known sperm donor is also not currently recognised legally as a parent of the child. However, he can apply for a parenting order.

Before you start trying to conceive, it is important for everyone involved to think through issues such as:

whether the donor is to have an ongoing relationship with the child, and if so, on what terms
financial arrangements
decision-making about the child's upbringing, naming the child and so on.

It is strongly advised that you sign a written agreement between the people involved. It is not legally enforceable, but it is important evidence of your intentions.

This will be useful to refer back to if there are problems later on. The agreement should be reviewed as the child grows up.

Responsibility for child support

Two court cases (NSW Supreme Court in 1995 and Family Court in 1996) decided that if a man isn't the married or de facto husband of the biological mother of a child conceived by artificial insemination, then he is not the child's ‘parent' under the Child Support (Assessment) Act 1989 (Cth) - even if he is named on the birth certificate. Therefore he can't be ordered to pay child support by the Child Support Agency. This was confirmed by the Family Court in a 2002 case.

Contact between donor and child

A known sperm donor can apply for parenting orders under the Family Law Act as a ‘person concerned with the care, welfare and development of the child'. (See ‘Parenting orders'.) This might happen because:

the lesbian parents want him to have decision-making responsibility, for example with medical decisions, or
he is in dispute with the lesbian parents about his involvement and contact with the child.

In a Family Court case in 2002 the court recognised the right of a known sperm donor to have regular contact with the child. If a lesbian couple is not prepared to allow the possibility of the donor having contact with the child, they should use an anonymous donor through a fertility clinic.

Should the donor be named on the birth certificate?

This depends on how the child is conceived and the wishes of everyone involved.

Anonymous donor - if you conceived through a donor program at a recognised clinic, get a letter from the clinic stating the donor was anonymous. This means the space for 'father' on the birth certificate is blank.

Known donor - if you know the name of the donor he must sign the birth registration form. He will be listed as father on the birth certificate unless you both write to the Registrar of Births, Deaths and Marriages stating he is the donor and asking that he not be listed. The donor has to provide personal and contact details. This means the space for 'father' on the birth certificate is blank but the donor's details are kept on a register at Births, Deaths and Marriages. There is no option to list a donor as 'donor' on the form. If you do not know the donor's name you must give the Registrar a statutory declaration stating why he is unknown.

Note: While self-insemination is probably not illegal, insemination by a partner probably is illegal. Get legal advice. It is an offence to make a false or misleading statement in a birth registration form. The Registrar may refuse to issue a birth certificate if you say you used a known donor but won't give his name.

Good news

A non-biological parent can be listed on the birth certificate as an 'informant', whether or not a donor is listed as father. The biological parent must write to the Registrar to ask for this. If there is a known donor, he has to agree to it. Contact Births, Deaths and Marriages, 9613 5837 for more information.

Consequences of naming known donor on birth certificate

Naming a donor on the birth certificate does not make him legally a ‘parent' under family law. However, it does have other consequences.

Paternity for inheritance purposes

Naming a known donor on the birth certificate establishes kinship. This gives the child inheritance rights if the donor dies. See ‘Death and inheritance'. (The same outcome can be achieved if the donor names the child as beneficiary in his Will.)

Social security

Centrelink policy is that the biological mother is not eligible for social security unless she first tries to get child support from the father named on the birth certificate, even though the law is clear that a donor is not liable for child support. If Centrelink insist on this, even after you tell them it was self-insemination, you can appeal to an authorised review officer and then the Social Security Appeals Tribunal. Contact the Welfare Rights Unit for more information on 9416 1111.

It is an offence under the Social Security Act to make a false or misleading statement.

Passport

A father registered on the birth certificate must give his consent (by signing the application) before the child can get a passport.

NON-BIOLOGICAL PARENT

Because a non-biological parent may not be considered legally to be a parent, they may have limited rights in relation to the child's schooling and medical treatment unless they are named as having parental responsibility in family law parenting orders. This would probably only arise if the school or hospital challenged their authority to make decisions. If so, a family law court order giving them parental responsibility would clarify this issue immediately.

New parental rights

Changes to the Children and Young Persons Act 1989 (Vic) give parental status to a domestic partner who is living with the father or mother of a child. They give a domestic partner these rights of a parent:

to be present at any police interview of the child under 17
to participate fully in and be informed of any criminal proceedings against the child

in the Children's Court

to be told if the child is in need of protection and taken into safe custody
to apply for an interim (temporary) accommodation order for the child
not to have the child removed from their care unless the court is satisfied that

reasonable steps have already been taken to keep the child at home.

This relates to the Children's Court and not to parenting rights under the Family Law Act.

What to do

In Victoria, the non-biological parent cannot legally adopt their same-sex partner's child. However, there are steps you and your partner can take to clarify and strengthen the legal position of the non-biological parent:

1. Parenting agreement

You can make an agreement that sets out such things as:

your intention to share parenting
how you will care for the child financially
what the child's living arrangements will be
the role of the sperm donor.

This agreement is not legally binding, but it is important evidence of intention, which you might need if there are disputes later about what was agreed to. If you are self-inseminating using a known sperm donor, this is particularly important. Get legal advice to help you draw up this agreement. The agreement should be signed by all people involved and reviewed as the child grows up.

2. Parenting order

You can formalise your agreement and give the non-biological parent ‘parental responsibilities' through a parenting order made by a family law court (see ‘Parenting orders'). This allows a non-biological parent to have legally recognised decision-making rights in relation to the child until the child is 18. This is not as secure as adoption, which is lifelong and allows for inheritance rights. However, it is currently the best option to provide legal rights and responsibilities to non-biological parents. Family law court orders can be changed if circumstances change. You must serve a copy of the application on the sperm donor (if known). It may help your case if you include an affidavit from him saying that he supports the application. The court will consider whether you are in a stable and committed relationship and whether it is in the child's ‘best interests' (see ‘Parenting orders') - the court may ask a counsellor to prepare a family report to help them make a decision. Getting a parenting order may be expensive as you have to pay court filing fees and you need a lawyer's help to prepare the documentation properly. . However, if the matter is simple - that is, all parties agree that the biological and non-biological parents and not the other biological parent are to have parental responsibility for the child, you can apply for consent orders, which does not involve any filing fees or court appearances. You will still need a lawyer to assist you with this process.

3. Make a Will

If the non-biological parent wants their child to inherit their property after they die, they must make a Will naming the child as a beneficiary (see ‘Death and inheritance'). This is because the law doesn't consider a non-biological parent to have a kinship relationship with the child.

4. Testamentary guardianship

The biological parent can name the other parent as guardian of the child in their Will. This means that if the biological parent dies, there are clear instructions about who should have responsibility for the child. Although this is important, it isn't legally binding. If there is a dispute with other concerned people, family law courts can be asked to make a parenting order. The court would consider the child's best interests and look at:

the previous relationships between the child and the relevant adults, including what kind of role they've had in the child's life
what the child wants, if they are old enough to say.

Dispute with the biological parent

If a couple separates, a non-biological parent can apply to the Family Court for a parenting order as a ‘person concerned with the care, welfare and development of the child' (see p.31). There have been very few of these cases, so it is hard to predict the outcome.

Child support

A non-biological parent who lives with the child after separation can apply for child support payments from the biological parent through the Child Support Agency. But if the child lives with the biological parent, the non-biological parent can't be ordered to pay child support by the Agency because they aren't considered to be a ‘parent' legally (nor are they liable for child maintenance under the Family Law Act). However, a non-biological parent can be responsible for child support under common law equitable principles. The biological parent can take legal action in the Supreme Court of Victoria (an expensive option). In a 1995 case the NSW Supreme Court said that because the non-biological mother was involved in the act of conception and was a parent to the children, she must continue to support them even though the mothers had split up. In this case it was significant that the non-biological mother had the financial capacity to do so.

Where to get help

Victoria Legal Aid

Family Law Service and Child Support Legal Service

Tel 9269 0234 or 1800 677 402 (country callers)

Child Support Agency

13 12 72

Centrelink Family Assistance Office

13 61 50

Family Court/Federal Magistrates Court

1300 352 000

Talking Turkey: A Legal Guide to Self-Insemination

www.glrl.org.au (follow links to Publications/Major Reports)

Prospective Lesbian Parents Support Group

http://home.vicnet.au/~plpvic/

Maybe Baby Melbourne

www.maybebaby.org.au

maybebabymelbourne@yahoo.com.au or leave message on (03) 9513 9061

The Australian Sperm Donor Registry

www.australianspermdonorregistry.com

enquiries@australianspermdonorregistry.com

Rainbow Families Council Inc.

www.rainbowfamilies.org.au

BECOMING A PARENT

LIVING WITH/PARENTING CHILDREN

PARENTING ORDERS

SEPARATION AND DISPUTES

ANONYMOUS SPERM DONOR

KNOWN SPERM DONOR

NON-BIOLOGICAL PARENT

News & Resources

Make a Donation

Relationship Register becomes law

Special General Meeting - 15 May 2008