Australian Gay & Lesbian Law Blog – "NSW: Bill passes Upper House" by Stephen Page

(Stephen Page) previously reported that New South Wales Attorney-General John Hatzistergos had introduced a Bill to Parliament to amend 55 pieces of legislation, including now providing a presumption that where a woman gives birth and is in a lesbian relationship and going through IVF, then her partner will also be deemed to be a parent.

This Bill, with amendments, has now passed the Upper House and is on its way to the Lower House.

Fred Nile’s most significant amendment was to allow fathers to be shown on the birth certificate for children of lesbian couples, if the fathers wanted to. Here is what he (and Hatzistergos) said:

[Fred Nile]Insert after clause 5 (2):

(3) If the particulars supplied to the Registrar under section 14 of the Act specify that:

(a) a parent who is the father of the child wishes to be identified in the Register as the father, or

(b) a parent who is the birth mother of the child wishes to be identified in the Register as the mother,

or both, the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.

The amendment seeks to address the criticism that the bill’s wording seems to devalue the role of the father in that it gives the appearance that the father would not be shown on the birth certificate in this circumstance. What appeared to be an omission and a downgrading of the role of the father has caused a deal of concern about the legislation as a whole; indeed, most of the criticism has focused on that aspect. I have been endeavouring, as have other members, to find a way of resolving that situation. The Attorney General has indicated that it was never the Government’s intention to make any statement in the legislation about the role of the father or the importance of fatherhood. If that is the case—and I believe it to be the case—I seek the Government’s support for the amendment and the support of Opposition members by way of a conscience vote.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [11.22 p.m.]: The Government will support the amendment. As I clearly indicated in my second reading speech, it is not the Government’s intention to modify the way birth certificates are issued in the sense of removing the names of mothers and fathers. Indeed, the current practice in relation to the naming of mothers and fathers has been an administrative practice that is not regulated by specific provisions. However, in order to allay any concerns we are happy to support the amendment.

Click here for Hansard of the debate.

[Link: Original Article]

ABC Online – "Rights Win for Lesbian Families"

The rights of New South Wales children with lesbian parents have been expanded under legislation passed by the State Government.

The law clears the way for children from lesbian couples to inherit money from their non-birth parent and receive workers’ compensation on behalf of their non-birth parent.

It also allows both mothers to appear on their child’s birth certificate.

NSW Attorney-General John Hatzistergos says the Bill is a big step.

“It means that the non-birth parent will have obligations to that child in the same way that every other parent has,” he said.

“It also means that child will have the same relationship with the non-birth parent as they do with their birth parent.”

Mr Hatzistergos says shadow attorney-general Greg Smith defied his own party in voting against the Bill.

“The Opposition is hopelessly divided on this issue but it’s important to recognise that the vote was carried 64 to 11,” he said.

“With Mr Smith being one of the few leading spokespersons within the Opposition voting against the legislation, he not only defied his leader but also the leader of the National party.”

Emily Gray, from the Gay and Lesbian Rights Lobby, says many Liberal MPs, who voted against the reforms, were confused about the meaning of reforms.

“A lot of that was stemming from the fact that they believed that fathers would be removed from birth certificates following these reforms and that’s just simply not true at all,” she said.

Ms Gray says the changes have been long-awaited.

“With 71 per cent of the Australian population now supporting equal rights for same-sex couples, it’s about time that this equality came through,” she said. “We’re really happy that it has.”

[Link: Original Article]

The Age – "UK vote marks parenthood victory for gays" by Paola Totaro

BRITAIN has forged landmark new rights for homosexual partners seeking legal recognition as parents.

The House of Commons unexpectedly threw out proposals that would have required fertility clinics to consider a child’s “need for a father” before providing treatment, enabling two-mother families.

The father’s role will now be substituted to require the “need for supportive parenting”. Both partners will be recognised as parents on birth certificates when lesbian couples conceive with donated sperm or gay men use surrogacy to have a child.

At present, as occurs in Australia, only the natural mother or father is automatically considered to be a parent when homosexual couples have fertility treatment.

The changes will be made to the controversial Human Fertilisation and Embryology Bill, which governs stem cell research as well as fertility treatments and abortion in Britain.

Proposed “pro-family” amendments, including a Conservative bid to lower the abortion limit from 24 weeks to 22 weeks, were defeated by a large margin, surprising the Labour Government, which had been prepared, publicly and privately, for a major defeat.

The attempt to ensure the legal need for a father in fertility treatment was rejected by 292 votes to 217, a majority of 75.

The conscience vote on homosexual partners has been hailed as the most important widening of homosexual rights to family since gays were allowed to adopt children.

Fertility clinics will now be banned from refusing lesbian or single women treatment if they cannot provide a male paternal model. This reason has often been used by clinics who refuse treatment to lesbian or single women.

Cardinal Cormac Murphy O’Connor, the leader of the Catholic Church in England and Wales, said it was “wrong to pass a law” where biological parenthood was not recognised, “because clearly there must be a father for a child”.

Former Tory leader Iain Duncan Smith, who led opposition to the plans, told MPs: “On the whole, the absence of fathers generally has a detrimental effect on the child.”

Supporters of the new law argued that existing laws discriminated against gay couples.

Health Minister Dawn Primarolo described the changes as fair and said they were drafted to recognise the complexities of modern British life. “What counts is the quality of parenting,” she said.

The vote is a further fillip for Labour, which had a major win on stem cell research on Monday when Britain became the first Western nation to allow the mixing of human and animal cells in stem cell research as well as the creation of so-called “saviour siblings” who can be screened for life-saving tissue donations for sick family members.

The Victorian Government announced in December last year that a similar law to the latest British changes was part of a reform to in vitro fertilisation and surrogacy. The new law will recognise the female partner of a mother who conceives a child using IVF, as a legal parent of that child. Legislation is being drafted and due to be ready in a few months.

With TELEGRAPH, NICK MILLER

[Link: Original Article]

Sydney Morning Herald – "Father to go from birth certificates" by Heath Gilmore

A CONTROVERSIAL new bill that will remove the word “father” from birth certificates to recognise lesbian couples who have children through IVF will be put before NSW Parliament.

Fifty laws across NSW covering the Local Government Act, Industrial Relations Act and the constitution will be amended to include new parental presumption protection for female same-sex couples.

The bill equates the position of a lesbian partner of a woman who has a child after becoming pregnant by a fertilisation procedure, other than sexual intercourse, with the position of a married woman’s husband. Lesbian parents will see expressions such as “birth mother” replace “mother” and “both parents” to replace “the father and the mother” on birth certificates.

Lesbian parents will also be given protection for their children under workers’ compensation, inheritance law and parent-teacher nights at school. Schools will also be forced to recognise both partners in a lesbian couple as “parents”.

However, a number of NSW Coalition MPs have deep moral concerns about the bill. On Tuesday the Coalition voted to give members a conscience vote on the issue. Shadow Attorney-General Greg Smith said some MPs were concerned that the role of fatherhood was undermined by the bill, which is expected to be debated this parliamentary session. It is understood Mr Smith proposed the conscience vote.

Minister for Women Verity Firth said the Opposition’s decision to hold a conscience vote on laws to give equal rights to the children of same-sex couples was evidence of the Opposition’s lack of leadership.

The conservative Australian Family Association is campaigning against the change.

Gay & Lesbian Rights Lobby spokeswoman Emily Gray said the changes would give children added emotional and financial stability.

[Link: Original Article]

Dimocks Family Lawyers – "Same Sex Parenting" by Paul Boers

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.

[Link: Original Article]