Australian Gay & Lesbian Law Blog – "QLD: Fatherhood Just Got More Interesting" by Stephen Page

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called “Australian Gay and Lesbian Law Blog“. [Ed – Rodney Cruise]


Back in May I posted about how Queensland Attorney Kerry Shine was seeking to amend the Status of Children Act so that the position of IVF dads becamse clear- if they were to donate sperm to single mums or a lesbian couple, then they would not be dads in law.

I had chased up Kerry Shine’s office- twice- as to whether the proposed changes would cover men offering sperm to their female friends, but my calls were not returned and I was none the wiser.

Last week a friend told me that he was considering donating sperm via a website: http://www.free-sperm-donations.com/ . He ultimately had second thoughts.

At the time that Kerry Shine made the announcement, he considered that part of the reason for making the changes was so that sperm donors to IVF women would not be fathers and therefore would not be required to pay child support. He proposed that the laws be retrospective to 1988- when the Status of Children Act was enacted!

Because of my friend’s situation, I looked over the weekend, and found that tucked in at the back of the Guardianship and Administration and Other Acts Amendment Bill were these proposed changes.

So what do they mean? If enacted, the Bill would make ensure that if a woman other than a married woman were to have a child by a sperm donor- if she were to go through IVF, then the donor will NOT be the father and will never have the rights of fatherhood unless and until he marries her. It doesn’t matter if the woman and the man agree that he is to have those rights- that agreement is irrelevant.

However, if the man donates sperm to the mother other than through IVF, then it is possible that he might be considered to be the father, in which case there would be certain rights under the Family Law Act, including the presumption of equal parental responsibility, and the obligation to pay child support.

Although there are two decisions of the Family Court which in part dealt with Victorian legislation which would suggest that the known sperm donor would not be a father or parent under the Family Law Act and under child support legislation, there is no guarantee that that court will follow the same approach with the Queensland legislation, especially when the Attorney expressly stated that part of the purpose of the legislation was so that donors would not have to pay child support. If the legislation that he is proposing does not include known donations other than via IVF, then this of itself raises the possibility that known donors other than through IVF might be treated as fathers and liable to pay child support (and seek to make decisions about the child and spend time with the child, maybe even equal time, relying on the Family Law Act).



[Link: Original Article]

MCV – "Rainbow Families Win" by Rachel Cook

The State Government introduced new laws on assisted reproductive treatment (ART) and surrogacy on Tuesday, which will bring Victoria into line with other states.

Deputy Premier and Attorney-General Rob Hulls said in a media statement that “the overarching objective of the reforms was to protect the best interests of children born using such treatment”.

“Families come in all shapes and sizes and always have. We want to ensure that regardless of family structure, a child born through a surrogacy arrangement, to a single mother or to a same-sex couple receives the same legal protections as others.

“These reforms provide a legal framework for what is already occurring in the community,” Hulls said.

The Victorian Law Reform Commission, which recommended the changes, found that parental capacity was based on good parenting skills rather than relationship status or sexual orientation.

The new laws will ensure Victoria’s laws are compatible with Federal discrimination laws by providing that women can gain access to assisted reproductive treatment regardless of their marital status or sexual orientation.

The laws will also ensure stronger legal protection for children by giving legal recognition to the commissioning parents in a surrogacy arrangement, or the female partner of a child’s mother.

The Rainbow Families Council, which represents the interests of same-sex parents and their children, has welcomed the new laws.

“This is a step towards law reform that recognises our children and families legally and socially,” said spokesperson Felicity Marlowe.

Although the legislation will be the subject of a conscience vote in the state parliament, Marlowe told MCV she is confident it will be passed.

“I think it will get through on the recommendations that this is in the best interest for children and families in Victoria,” she said.

[Link: Original Article]

Australian Gay & Lesbian Law Blog – "Children born after donor insemination should be told as soon as possible about their conception" by Stephen Page

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called “Australian Gay and Lesbian Law Blog“. [Ed – Rodney Cruise]

It is better for children conceived by donor insemination to be told of their origins at an early age, according to the first large-scale study of people who are aware of their donor conception. If the children are not told until they are 18 or older, they are more likely to have feelings of shock and anger, the 24th annual meeting of the European Society of Human Reproduction and Embryology in Barcelona heard.

The study is one of the first to compare the views of offspring of donor insemination told of their origins during childhood compared with those who only found out in adulthood. The researchers recruited a sample of 165 offspring conceived by sperm donation through the Donor Sibling Registry – a US-based, worldwide website that enables donor offspring to search for their donors and their donor siblings (other donor offspring who share the same donor). The participants answered an online questionnaire consisting of multiple-choice and open-ended questions. They were aged 13-61; 148 (89%) were living in the USA and four (2%) were living in the UK; the majority (approximately three-quarters) were female.

Dr Vasanti Jadva, a research associate at the Centre for Family Research, University of Cambridge (UK), found that children born into mother-only or same-sex parent families were much more likely to be told about their origins before the age of three than were children of heterosexual parents: 63%, 56% and 9% respectively. Indeed, 33% of children in heterosexual families were told about their conception after the age of 18, compared with none in the other two types of families. Two children from heterosexual parents only found out when told by people who were not their parents.

Dr Jadva said: “We asked the offspring how they felt at the time they found out about their conception, excluding those that found out before the age of three as they would have been too young to recall their feelings. For all offspring, the most common feeling was curiosity, irrespective of the age at which they found out. However, there were differences according to the age at which they had been told of their conception, with those told during adulthood more likely to report feeling confused, shocked, upset, relieved, numb and angry.”

For instance, 37% of those told when aged 4-11 reported feeling confused, compared to 52% told when aged 12-18, and 69% told when aged over 18. In the respective age groups, 27%, 58% and 75% respectively reported feeling shocked; 16%, 23% and 44% reported feeling upset; 6%, 26% and 38% reported feeling relieved; 6%, 26% and 38% reported feeling numb; and 12%, 13% and 38% reported feeling angry.

Examples of comments made by the participants included:

“I would have appreciated revelation of this information much earlier in my life. Learning of my biological identity at 17 years of age was a traumatic event.” A 30-year-old, found out at age 17.

“I am angry because I asked about being ‘adopted’ several times throughout my childhood and adolescence and told that I was being foolish. I knew.” Someone who found out at age 50

“Either tell your kid from the beginning or don’t tell them at all, it was one of the most shocking and upsetting moments of my life. I felt alone.” A 19-year-old, found out at age 12.

“I was so young I don’t remember feeling much more than interested and curious.” A 13-year-old who found out at age four.

Dr Jadva said: “With regards to how offspring felt towards their mother at the time of finding out, offspring told in adolescence or adulthood were more likely to report feeling angry about being lied to and betrayal. Those told as children were more likely to state that it made no difference to how they felt towards their mother compared to those told later in life.” According to whether they were told between 4-11, 12-18 or over 18, 12%, 29% and 47% respectively felt angry at being lied to, and 12%, 23% and 34% felt betrayal. There were no statistically significant differences in feelings of offspring towards their father at the time of disclosure.

When asked how they felt currently about their conception, the most common response was curiosity, reported by 69% of offspring. There were significant differences for those feeling angry, relieved and shocked, with those told after the age of 18 more likely to report these feelings. By contrast, a 15-year-old, told before the age of three, commented: “I’ve grown up knowing how I was conceived. I’ve always been accepting to it because I never knew any different. Now that I am a little older the only thing that’s changed is that I’m a bit more curious.”

Dr Jadva concluded: “This study shows that age of disclosure is important in determining donor offspring’s feeling about their conception. It appears it is better for children to be told about their donor conception at an early age. This finding is in line with research on adoption, which also shows that children benefit from early disclosure about the circumstances of their birth.

“In light of the trend toward greater openness, it is important we recognise that telling offspring of their conception may evoke a sense of curiosity about their origins which could lead them to seek out their donor relations. In fact, we have found that offspring show high levels of interest in contacting not only their donor, but also their donor siblings. Offspring from this study have gone on to find an average of four donor siblings, with a maximum of 13.”

[Link: Original Article]

The Age – "Twins’ lesbian mums lose compo case against IVF doctor" by AAP

The lesbian mothers of IVF twin girls have lost a legal bid to sue their doctor for the cost of raising one of the toddlers.

The women, whose names have been suppressed, sued prominent Canberra obstetrician Sydney Robert Armellin for more than $400,000 for implanting two embryos instead of the requested one.

The ACT Supreme Court today ruled in favour of Dr Armellin, and ordered the couple pay his legal costs.

The IVF procedure, which used sperm from a Danish donor, resulted in the birth of twin girls, now aged four.

The couple, whose combined income is more than $100,000, sought $398,000 from Dr Armellin to cover the costs of raising one of the girls, including fees for a private Steiner school in Melbourne.

The court was told the twins’ birth mother had lost her capacity to love and the couple’s relationship suffered as they became mired in everyday tasks associated with raising two children.

But Dr Armellin’s lawyer said loss of freedom was experienced commonly by parents across Australia.

The couple said it was Dr Armellin’s responsibility to ensure his patient’s wishes were carried out during the operation at Canberra’s John James Memorial Hospital on November 12, 2003.

Dr Armellin countered by saying the birth mother only told him she wanted one embryo minutes before she was sedated, after previously signing a form consenting for up to two embryos to be implanted.

The case, before Justice Annabelle Bennett, sparked nationwide condemnation of the women in the media.

The mothers issued a statement during the civil proceedings arguing the case had nothing to do with their feelings towards their daughters, but with Dr Armellin’s failure to comply with their wishes.

“This has never been a case about whether our children are loved,” they said in a handwritten statement.

“They are cherished.”

The couple’s solicitor Thena Kyprianou said her clients, who live in Melbourne, were shocked by the decision.

“They’re disappointed,” Ms Kyprianou told reporters.

“They said they are shocked and that they will consider their options further once they have an opportunity to read the judgment.”

Ms Kyprianou said the publicity surrounding the case had destroyed her clients’ privacy.

Dr Armellin’s barrister Kim Burke said her client was relieved but mindful the women have 28 days to decide whether to lodge an appeal.

[Link: Original Article]

ABC Online – "NSW in rights push for lesbian mums" by Dean Lewins

The New South Wales Government wants a federal law amended so children of lesbian couples can seek child support if their parents separate.

State Attorney-General John Hatzistergos says co-mothers are not recognised in Family Court proceedings under the current laws.

Mr Hatzistergos says he will ask the Federal Government to change the Family Law Act to include lesbian parents at a meeting of attorneys-general this week.

“It’s important that the laws be amended to ensure that these children are treated in the same way that children of heterosexual relationships are, so that in the event that the parents split up, there is an entitlement for that child to be able to seek child support from co-mothers,” he said.

“It’s important to recognise that these relationships exist and these children exist, whatever one might think about them.

“And bearing in mind those facts, it’s logical to ensure that we have a civilised way of ensuring the economic security of these children.”

The State Government last month expanded the rights of NSW children with lesbian parents, clearing the way for children from lesbian couples to inherit money from and receive workers’ compensation on behalf of their non-birth parent.

The reforms allowed both mothers to appear on their child’s birth certificate.

[Link: Original Article]

Herald Sun – "MPs also choose on gays’ fertility rights" by John Ferguson

STATE Cabinet has backed a vote among Labor MPs on legislation covering fertility treatment access for gays and single women.

Premier John Brumby has told the MPs they will have a free vote on assisted reproductive technology (ART) and surrogacy.

The Government is drafting legislation to better enable gay couples and single women to have children and expects it to be tabled this year.

Last week’s decision to allow a conscience vote will appease concerns raised by Catholic MPs uncertain about the broadening of treatment, including IVF.

Opposition Leader Ted Baillieu is also set to allow his MPs a free vote, though this depends on the Bill’s detail.

Mr Brumby has previously supported a conscience vote on abortion reforms being backed by the Government, making the last half of the year a potentially divisive environment in the State Parliament.

The Premier told MPs the ART issue was complex and the sort of subject on which MPs could determine their position on the basis of their own conscience.

Attorney-General Rob Hulls announced plans to reform ART legislation just before Christmas.

Mr Hulls said that the changes would bring Victoria into line with other states and “better reflect the reality of modern families”.

“The reality is that many Victorian children are already born to same-sex couples and to single women and yet those children don’t enjoy the same legal protections as others,” Mr Hulls said in December.

The changes are set to be based on the recommendations of the Victorian Law Reform Commission.

Under those proposed changes:

GAYS would not be forced to travel interstate for treatment to become pregnant.

A PANEL would be set up to screen people seeking the treatment in a clinic if convicted of a sexual offence.

SURROGACY arrangements would be changed to make it easier for surrogate mothers to receive treatment.

THE ban on commercial surrogacy would continue.

THE mother’s female partner would be recognised as a parent of the child who was conceived using treatment.

[Link: Original Article]

Sydney Star Observer – "Parenting Laws Pass Despite Church Campaign" by Harley Dennett

Children born to lesbian couples through artificial insemination can now have both mothers on their birth certificates after the Iemma Government’s parenting reforms passed 64 votes to 11 last week.

Despite Anglican and fathers’ rights groups campaigning strongly against the changes, only a quarter of Coalition members voted against the bill in the lower house, with a further quarter failing to turn up.

The bill passed the upper house without individual votes being recorded.

Minister for Women Verity Firth acknowledged the reforms did not address all the parenting needs of same-sex couples, but were designed to address the most common circumstances.

“The Minister for Community Services [Kevin Greene] is considering adoption by all prospective partners in the context of a broader response to a review of the Adoption Act 2000,” she said.

“Currently, gays and lesbians, as individuals, can adopt children, subject to the same process of screening for suitability as heterosexual men and women.

“Surrogacy is a developing area of law … being considered as part of the development of a national surrogacy framework. At this stage it would be premature for any changes to be made in NSW.”

It is also now illegal to discriminate on the basis of domestic status, which had Christian Democrat leader Fred Nile claiming critical debate of same-sex relationships could result in a $40,000 fine.

“I have been before the Anti-Discrimination Board in relation to what I regard as trivial matters,” Nile told Parliament.

“Vexatious individuals could say, ‘I’ve got another weapon to use against the people I disagree with’. It costs the person who made the complaint nothing.”

Liberal MLC Charlie Lynn used the parliamentary privilege to attack previous equal age of consent reforms as “exposing vulnerable young boys to sexual predators” and accused the Government of not having a public mandate on these issues.

Nationals leader Andrew Stoner warned the Government was embarking on plans to undermine bans on same-sex marriage, adoption and IVF [sic], but voted for the bill anyway.

Sydney MP Clover Moore joined Greens Leader Lee Rhiannon in calling on the government to proceed with “urgent adoption reform”.

[Link: Original Article]

SX – "Getting with the program" by Jenni Millbank

Same-sex parenting reforms have finally been approved, marking the end of a very long road. But the journey is far from over, writes Jenni Millbank.

Last week saw a major victory for our families in NSW, with the passage of the underwhelming titled Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (law reform can be satisfying but I never said it was sexy).

These reforms ensure that same-sex couples are recognised as de facto relationships across all areas of NSW law (the ‘missing pieces’ left over from the 1999 reforms, with the continued and vexing exception of adoption) and strengthen anti-discrimination protection on the basis of same-sex relationship status.

Most importantly, it finally provides parenting recognition from birth to co-mothers of children conceived through donor insemination, making them legal parents in all areas of NSW law. Both mothers can be recorded as parents in the birth register, can have their children listed as siblings, and can both appear on their child’s birth certificate.

These changes will apply to children who have already been born as well as those born after the passage of the law. There is a simple process for mothers to apply to the Births, Deaths and Marriages Registry to add the second mother to the birth certificate.

This is a huge achievement for community activism and grass roots law reform because we devised our own solutions and then slogged away until the government realised they were the right ones. These reforms reflected the proposals devised by the NSW Gay and Lesbian Rights Lobby in And then the Brides Changed Nappies in 2002 and 2003. I am so proud of the Lobby’s commitment and professionalism over the years; this simply would not have happened without them.

These changes bring NSW into line with similar laws now in place in Western Australia, the Northern Territory and the ACT (with Victoria set to follow later this year), and will help to bring pressure to achieve the same kind of recognition in federal law in the near future.

This system is far more accessible, equitable and broad-reaching than second-parent adoption, in place in many US states, because it does not require a court process. Rather, recognition applies automatically from birth and simply requires that the co-parent consented to assisted conception, regardless of whether conception took place through a clinic or informally at home.

Some press reports have misrepresented the changes as removing rights from fathers, including gay fathers. Nothing could be further from the truth. These changes add a mother to lesbian-led families that previously only had one legal parent.

Sperm and egg donors are not legal parents under current law anywhere in Australia, even if they have a relationship with the child and even if they have been listed on the birth certificate. If mothers have listed a donor as the father in the past this did NOT make him a legal father, but it should be noted that he will only be removed from the birth certificate with his permission or following a court hearing.

Of course there is still more to be done. We need to work together to make adoption open to all and to ensure that parental rights are also included in the new federal reforms. If genuine multiple-parent caregiving is happening in lesbian and gay families we should pursue modes of recognition that can accommodate the needs of such families.

In my view it is also time to create a careful and transparent scheme for the transfer of parental status to commissioning parents in surrogacy arrangements, including gay fathers who have children through this process. But these goals shouldn’t detract from celebrating the magnitude of what we achieved last week.

Jenni Millbank is a Professor of Law at the University of Technology, Sydney. She is the lead author of And then the Brides Changed Nappies report, published in 2002.

[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]

The Daily Telegraph – "Same-sex Family Discussions" by Bruce McDougall

IT’S hard to disagree with any government’s decision to provide greater protections to children – whether they have heterosexual or same-sex parents.

As Attorney-General John Hatzistergos said yesterday when announcing parenting rights would be extended to lesbians, the protection of children is one of the cornerstones of our society.

A new law will give equal rights to children who live in families where mothers are in same-sex de facto relationships – covering areas such as workers’ compensation, inheritance and school.

The legislation won’t cover same-sex adoption or surrogacy, but the Government is sending a clear message to the community.

After the battles on racist behaviour and the Aboriginal sorry campaign, gay rights is emerging as the next big front for the social engineers.

For some time an almost subterranean push by the gay and lesbian lobby – assisted by government quietly in the background – has been aimed at promoting the rights of same-sex couples.

But the powers have been coy about bringing this campaign into the open, ventilating the issues to the wider public and exposing the arguments to scrutiny.

Last week Education Director-General Michael Coutts-Trotter and Parents and Citizens Federation president Di Giblin were high-profile speakers at a Government-backed conference on sexual diversity, That’s So Gay.

Yet few people outside the event, which was organised by the AIDS Council of NSW, knew it was on and the agenda was not promoted to mainstream media outlets.

Mr Coutts-Trotter, who opened the conference and spoke passionately about the need to combat homophobia in schools, later downplayed his role to The Daily Telegraph. Yet the department already has a plethora of programs imbedded in the curriculum from Year 7 onwards all aimed at stamping out homophobic behaviour.

It was strongly suggested at the homophobia conference that children with two mothers face a tough time from bullying and harassment in the playground.

If this is correct then surely it is in the public interest that the wider community is properly and fully informed so that measures to stop this behaviour can be embraced.

[Link: Original Article]