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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]

Categories: gay, IVF, Jenni Millbank, Lesbian

Relationship and Parent Rights Question & Answer – Jenni Millbank

April 22, 2008 Leave a comment


Jenni Millbank is a Barrister and Professor of Law at the University of Technology, Sydney. Jenni has an extensive background in family law and same-sex relationship recognition.

This is an extract of the advice provided on the GLRL website (www.glrl.org.au)

Please note that this column is information of a general nature only and does not constitute legal advice.
*NEW* Questions Answered this Month:

* Both I and my same-sex partner want to migrate from our home country to Australia. Can we do this together as a couple under the skilled migration program?
* The federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). What are some options available to get around this problem?
* Are fertility clinics in NSW and Qld prohibited from providing access to lesbians?
* Is it possible to become a parent through surrogacy in Australia? What is the law with regards to payment to the surrogate mother by the donors?
* What is the age of consent in NSW?

Previously Answered Questions:

Adoption, Surrogacy and Parenting

* Are agreements between donors and mothers binding?
* What is the legal position of known and anonymous donors?
* Is second parent adoption possible in Australia, ie can a lesbian co-mother adopt children born to her partner?
* Would marriage give the right to adopt? Or would civil unions or de facto status do so?
* What is the legal standing of surrogacy in Australia for gay men wanting to be fathers?

Civil Unions and Marriage

* What federal rights available to married and de facto couples are not available to couples under a state-based civil union?
* Do married couples have more rights than de facto couples at federal level?
* Some people are against marriage because historically marriage treated women as property. Are women disadvantaged in any way in modern day marriage?
* What is the difference between relationship registration and civil unions?
* If I register my relationship in Tasmania or have a civil union in the ACT, will that be recognised in federal law – eg for immigration purposes will I be treated as married rather than as interdependent?

De Facto Relationships

* What relationship rights do I have at the moment?
* How is de facto recognition different from marriage or civil unions?
* I read that the De Facto Relationships Act applies 11 tests to determine the legal validity of a de facto relationship, and that typically gay men can only satisfy 4 of these 11 criteria. Is this so?
* How do I prove I am in a de facto relationship?
* Would federal recognition of same-sex couples as de facto relationships take away any of our current rights at state level?
* Would de facto recognition at federal level allow a government that did not like same-sex relationships to ban same-sex relationship recognition, like the marriage ban?

Protecting your Relationship Rights

* What rights do straight couples have that I don’t have?
* What can I do to get legal rights and protection for my relationship now?
* What is a “domestic relationship agreement”?
* How can I enter into a domestic relationship agreement and how much will it cost?

Sex

* What is the age of consent in NSW?

Superannuation

* How do I prove my relationship for superannuation

To find out the answer to these questions and more, visit the GLRL website at http://www.glrl.org.au or click here.

SX – "One State, One Mother" by Jenni Millbank


There’s no reason for New South Wales to be dragging the chain in same-sex parenting rights, writes Jenni Millbank.family-250.jpg

The majority of same-sex families in Australia are formed by lesbian couples having children through assisted conception.

In some families this is with anonymous sperm, while in others it is with the help of a known donor or biological father who is often a gay man.

Men in these arrangements occupy a wide variety of roles, from a ‘donor’ with little or no contact with the child, to an on-going relationship that is friendly and may or may not involve him being called ‘Dad’.

Children in all of these families have two mothers but have the protection and security of a legal relationship with only one parent: the birth mother. These children may also be deprived of a legal relationship with their sister or brother. Even if they have the same biological father but are each born to a different mother in the couple, NSW will not record the children as siblings.

A very simple way to solve this situation is to open up the existing presumption of parental status for heterosexual couples and apply it to lesbian couples.

A man who consents to his female partner conceiving through donor insemination or IVF is the legal father of the child regardless of his lack of genetic connection to the child. This presumption, in existence for more than 30 years in Australian law, renders social fathers the legal fathers of children whom they intended to raise.

A sperm donor, whether known or anonymous is (like an egg donor) not a legal parent.

This rule recognises the importance of children having a legally protected relationship with both of the parents who actually live with and care for them, regardless of genetic connection.

Such parents can then make important medical decisions for their children, can travel with them overseas, and can pass on property to them in the absence of a will. Legal recognition also ensures that both parents are equally placed if they later separate and have a dispute.

The biological connection of one parent in these situations should not be used as a weapon to exclude the other.

Providing automatic recognition to the second female parent in lesbian families should not be seen as something that competes with, or detracts from, the rights of a known donor/biological father.

Firstly, known donors are not legal fathers in Australia, so they do not lose any rights by co-mothers gaining parental status.

Secondly, in the vast majority of families, children live with their mothers and some have a contact relationship with their biological father, which does not necessarily require full parental status.

Furthermore, if biological fathers have, or wish to have, relationships with children, the Family Court has attached great importance to both the social relationship and their biological connection with the child, regardless of the lack of legal parental status.

Legal recognition of lesbian co-mothers is not about devaluing the role of involved gay fathers; rather it is about providing a clear legal support for the primary caregiving unit.

In 2002 Western Australia was the first Australian state to extend a presumption of parentage to lesbian partners, followed by the Northern Territory in 2003 and the ACT in 2004. This parental status will be extended to both female parents in Victorian law later in 2008.

Equivalent reforms have also been in place in South Africa since 2003, New Zealand since 2004 and were introduced in most Canadian provinces from 2002-2006.

The Human Rights and Equal Opportunity Commission recommended similar provisions for all federal law in their report into same-sex families last year.

Yet last week the NSW Attorney-General John Hatzistergos announced that NSW will not follow the lead of WA, the ACT, NT and Victoria, and will instead continue to prevent children in lesbian families from having the protection and care of two legal parents.

This stubborn resistance to the tide of change is lamentable: NSW was the first to introduce same-sex couple rights in 1999, don’t let us be the last to pass parenting rights.

Jenni Millbank is a Professor of Law at the University of Technology, Sydney.

[Link: Original Article]

SX – "Same-sex families in NSW disadvantaged" by Reg Domingo

March 26, 2008 Leave a comment

Same-sex families in NSW are at a significant disadvantage compared to those in other states because without a parenting order, a co-parent has no legal rights.

Professor Jenni Millbank from the Faculty of Law at the University of Technology said that unlike Western Australia, the ACT and Northern Territory, donors and co-parents in NSW are not automatically granted co-parenting status.

The lack of such provisions means that same-sex families in NSW do not share the same legal protection as those in other states in areas such as health, finance and inheritance.

“It’s a whole range of laws both in NSW and federally,” Millbank told SX. “For example, if a co-mother died or was injured, then her children wouldn’t automatically receive inheritance from her. The child wouldn’t be entitled to work or accident compensation. Likewise if the mothers break up, the birth mother isn’t able to use the Child Support Act to seek financial support from the co-mother.”

Millbank said that, in the event of a break-up, while a co-parent could still gain rights by proving their involvement with the child, “it’s a very uneven playing field in the sense that the co-mother has a much higher threshold to meet in terms of proving that her relationship with the child is beneficial for them. Whereas for a legal parent, that would be the starting point, because of course it would be beneficial for them to spend time with her.”

Last week, the NSW Attorney-General John Hatzitergos announced that the Iemma Government will not update its legislation, despite signs that the Victorian government will seek reform. It’s a move Millbank described as “sheer gutlessness”.

“It’s an area where there’s a clear and pressing need for recognition where there’s no advantage in any respects to say that one group of children should only have one legal parent while another has two. It doesn’t do anyone any good,” Millbank said. “It’s not like we’re waiting for some results to come in. We have a clearly defined problem and a clear and obvious solution. It’s just sheer gutlessness.”

[Link: Original Article]

Brisbane Times – "NSW slow to adopt parent provision"

March 22, 2008 Leave a comment

NSW is lagging behind other states because, without a parenting order, a donor or co-parent has no legal rights, a same-sex parenting expert says. Professor Jenni Millbank, from the Faculty of Law at the University of Technology, says there is a growing awareness in the community that “not everybody raising a child is their biological parent”.

But unlike in Western Australia, the ACT and Northern Territory, where the partner of the biological parent is automatically awarded co-parent status, much like the male partner of a woman who conceives through IVF, there is no such provision in NSW.

Professor Millbank says while proof of ongoing involvement in the life of the child can be used in court in the event of a dispute, “there is no excuse for NSW to be so slow at recognising parenting rights for same-sex couples”.

A spokesman for Attorney-General John Hatzistergos says his Victorian counterpart, Rob Hulls, has indicated his intention to raise the issue of same-sex parental rights at this week’s Standing Committee of Attorneys-General meeting. But he says the Iemma Government has no plans to update NSW legislation.

Research conducted in Australia and the US shows up to 10percent of gay men and 20percent of lesbians are parents. Up to half of these parents had children in a previous heterosexual relationship, but this proportion appears to be declining.

The 2006 Private Lives report which surveyed 5476 lesbian, gay, bisexual, transgender and intersex people across Australia found 25.6percent had children while a 2005 Victorian Gay and Lesbian Rights Lobby report indicated that 18.6percent had children.

[Link: Original Article]

Australian Family Lawyer – "Parental status for lesbian mothers having children through assisted conception" by Jenni Millbank

What are the available options for legal recognition of co mothers – the partners of lesbian birth mothers – in Australia? This article discusses: the availability of consent orders from the Family Court; adoption by the co parent in Western Australia, the Australian Capital Territory and Tasmania; status of children presumptions in WA, the Northern Territory and the ACT; and birth certificates and portability in state and federal law.

[Source: Australian Family Lawyer v.19 no.1 Winter 2006: 6-11]

Categories: Jenni Millbank, Lesbian

Watts McCray – "Is surrogacy an option for gay men wanting to be fathers in Australia?" by Jenni Millbank

February 22, 2006 Leave a comment

A couple of years ago there was a documentary on SBS about two gay men from Melbourne who had a baby through a surrogacy arrangement in the US. It caused a big splash, but there hasn’t been that much information on surrogacy within Australia since then, even though the ACT has recently changed its laws to make surrogacy simpler (and specifically identified gay couples as eligible) and Victoria is currently considering surrogacy reforms. This article outlines some of the general issues for gay men considering parenthood through surrogacy, but anyone considering a surrogacy arrangement should get detailed legal advice on their plans before they begin.

The first thing to note is that surrogacy arrangements are just that -arrangements, not contracts. It is not possible to enter into a binding surrogacy agreement anywhere in Australia, or to enforce an agreement that has broken down. Any dispute about the child will be determined by the child’s best interests, not by the terms of an agreement.

Most Australian states prohibit payment for surrogacy (“commercial” surrogacy), advertising for a surrogate or facilitating a surrogacy agreement (eg through an agency). Even the ACT, which allows non-commercial surrogacy and has groundbreaking new laws allowing for parental status to be transferred from the birth mother to the commissioning parents, bans any form of advertising for a surrogacy arrangement. So in most of Australia, surrogacy arrangements have to be privately arranged and involve no fee or payment (although in some places the cost of medical expenses is allowed).

NSW is unusual because it does not currently have legislation on surrogacy. At the moment it is not illegal to advertise for or enter into either a commercial or non-commercial surrogacy agreement that takes place in NSW- but note that advertising in other states, or conceiving elsewhere, or even having an agreement with a surrogate who usually lives in another state, may still be an offence in those places.

Since 2003 the NSW government has had a law in draft form (the Assisted Reproductive Technology Bill 2003) but it is not clear if it will be introduced. Even if this Bill did become law,it would only prohibit commercial surrogacy and advertising for commercial surrogacy in NSW.Non-commercial agreements would remain legal in NSW, as would advertising for them. This means that NSW is the most permissive of all Australian jurisdictions, and is likely to remain so even if the law changes.

Surrogacy may take place with the birth mother’s own egg (sometimes called “partial surrogacy”) or with a donor egg so that the birth mother is not the genetic mother (“full surrogacy”). Either way, the birth mother is still a legal mother.

If the conception is going to take place with a donor egg, then IVF is needed.This means two hurdles: finding an accessible fertility service, and a woman who will donate an egg in addition to finding a woman who will be a surrogate.

It is prohibited in all Australian states to pay an egg donor, although it is acceptable to cover medical expenses. It is legal to advertise for an egg donor in NSW (although note again it is an offence is some other states).

In most states, it is not possible to use fertility services to undertake a surrogacy arrangement, either because surrogacy is banned or because of laws limiting access to fertility services on the basis of clinical infertility (meaning the birth mother would need to have a fertility problem, defeating the purpose). The exceptions once again are the ACT and NSW, where it may be possible to access privately run fertility services even if not clinically infertile. But if classified as fertile, the parties would be ineligible for Medicare benefits – meaning that the cost per IVF cycle would be around $10,000. (If the birth mother were to be the genetic mother and a fertility service was only used for donor insemination rather than IVF the cost would be around $1800 per cycle.)

All states still require a sperm donor to sign a “lifestyle declaration”. Declaring that you have had male-male sex in the past 5 years may mean that the service refuses to use your sperm, or that they require additional storage time and repeat testing. This is up to the clinical judgement of each service, so is unpredictable.

Once a child is born, there is the further issue of parental status. Legally, the parents of any child born through assisted conception, whether surrogacy or otherwise, are the birth mother and her partner (in the ACT this includes a female partner). A commissioning parent, even if a biological father, is not a legal parent.

In the ACT the new surrogacy provisions allow for birth parent and commissioning parents to apply to the ACTSupreme Court for a change of parental status from the birth parents to the commissioning parents. These can be used by gay men, but only if: the commissioning parents live in the ACT, the child was conceived through IVF carried out in the ACT, the birth mother is not the genetic mother (ie full surrogacy and not partial surrogacy), at least one of the commissioning parents is a genetic parent, the birth mother and her partner both consent, and the baby is between 6 weeks and 6 months at the time of the application. So far the ACT is the only jurisdiction in Australia to introduce such provisions, but Victoria is considering something similar.

It is not possible to use adoption orders in NSW to gain parental status, because privately arranged adoptions are not permitted, and in any case same-sex couples are not eligible to jointly adopt.

But a lack of automatic parental status does not mean that commissioning parents have no rights or no way of gaining parental rights. Any person concerned with the care, welfare and development of a child can apply to the Family Court for orders; they do not need to be a legal or biological parent. It is possible for commissioning parents to apply to the Family Court for parental responsibility orders (these grant the right to make major decisions about the child, such as medical care, applying for a passport and so on) and for residence or contact orders. It is not exactly the same as parental status, for example it doesn’t flow through to areas such as inheritance, but it does say who is the person or people responsible for the care of the child and in charge of what happens to them until they turn 18. Such orders can also remove parental responsibility from the birth mother and her partner. Such orders can be applied for with the consent of all parties in a relatively simple process. The Family Court has made these orders in favour of gay men in recent years, including men who had a child from surrogacy arrangements made overseas. Importantly, these orders granted equal rights to the biological and non-biological father in a gay couple.

The upshot: surrogacy in Australia is very difficult and widely prohibited. The ACT and NSW are the most conducive to surrogacy arrangements, but prospective commissioning parents need considerable resources, would need to be very careful not to break the laws of their own and other states, and should consider obtaining parenting orders shortly after birth to formalise their legal status.

[Link: Original Article]

Categories: gay, Jenni Millbank, surrogacy