Category: Same Sex and Family Law

Rainbow Families: Part II

Posted onAuthorAnya Aidman

The Road Less Travelled

By Anya Aidmananya bw 2 cropped

As discussed in ‘Rainbow Families Part I’, access to Assisted Reproductive Technologies (ART) has made a world of difference to rainbow families, or LGBTI persons planning parenthood.

To be frank, however, this ART paradise is not ‘open access’ for everyone…yet. Ultimately, accessing ART requires at least: a womb, eggs or ova, and sperm. Now, thankfully these days there are relatively easy ways for participants to acquire the latter two if they’re lacking (be it from altruistic donors in Australia, or commercially purchased overseas). The former, however, is a tough one and requires more than the one off procurement of genetic material.

Commercial surrogacy is illegal in Australia. This does mean that would-be gay dads, partnered or single, are left facing a mighty challenge if they wish to start a family. Now, some go overseas, but this has its own legal and practical risks you should be aware of. You can read our other articles on surrogacy here and here.

For gay couples lucky enough to find an altruistic surrogate willing to work with them, more questions are raised: would the child be genetically related to its surrogate? would there be instead a donated egg or ova? which father would be biologically related to the child?

Some important questions that often get swept by the wayside are: what is your relationship with the surrogate? what do you want the relationship of your child to be to the surrogate, if any?

Even more important questions are: what is the legal status of your surrogate? What is your legal status in relation to the child? How can you give legal effect to your family’s wishes?

As discussed in our article “Surrogacy in the ACT“, it is mandatory in the ACT for intended parents and their surrogate to undergo counseling and obtain independent legal advice.

We would encourage you to get proper advice about your position, and what processes are available to you to ensure that your family is protected.

You can contact Anya Aidman to discuss your questions and concerns further. Anya has experience navigating this complex landscape for her clients, as well as in her own rainbow family.

e: aaidman@elringtons.com.au | p: 02 6206 1300

Rainbow families: Part I

Posted onAuthorAnya Aidman

By Anya Aidmananya bw 2 cropped

These days families come in all shapes and sizes.

LGBT or ‘rainbow’ families are increasingly accessing Assisted Reproductive Technologies (ART) to help bring children into their lives.

Unhindered access to ART in recent years has provided an enormous boost to loving families who have previously found it difficult to navigate the medico-legal restrictions on their decisions to expand their family. However, the journey towards, and through, rainbow parenting is not without its obstacles.

In the ACT and NSW, same-sex couples can now access ART through the same referral process (via your GP and then specialist) as opposite sex couples.

In the ACT, a non-birth mother of a child will be reconised by law with equal status as a parent. The Parentage Act 2004 contains a presumption of parentage which provides that a person in a domestic relationship (whether same-sex or opposite sex) with the birth mother at the time of the birth of the child is presumed to also be a parent of the child born.

Practically speaking, aside from the presumption, same-sex couples will have the opportunity to include both parents on the child’s birth certificate with the Office of Regulatory Services form enabling a person to be registered as a ‘mother,’ ‘father’ or ‘parent.’

In NSW the landscape has not always been as straightforward, however, following amendments in 2008, a women in a same-sex relationship with a birth mother of a child can be recognised on its birth certificate – with specific provisions enabling this registration. Unlike the ACT, NSW law does not contain a presumption of parentage in relation to a same-sex domestic partner of a birth mother. This is contrasted with the other presumptions contained in the Status of Children Act 1996, such as the presumption that a man cohabiting with a woman at the time of birth of a child is the child’s father.

At a Federal level, the Family Law Act 1975 was amended in 2008 to include new presumptions of parentage in the context of ART. Much like the ACT provisions, the Act defines a de facto partner (of either gender) of a birth mother as a parent of a child that is the product of an ART provision.

The situation becomes more complex for same-sex partners who were not in a domestic relationship with a birth mother at the time the child is born. Adoption, Court orders and/or the amendment of a child’s birth certificate may provide recourse. For example, the NSW registration scheme enables amendment to a child’s birth certificate to include a parent.

In some cases, you might want to discuss what you are planning as a rainbow family, to make sure that you provide your family with security and certainty.

In other cases, you might be considering separation, and need to understand your position better.

If either of these applies to you, you can contact Anya Aidman to discuss your questions and concerns further. Anya has experience navigating this complex landscape for her clients, as well as in her own rainbow family.

e: aaidman@elringtons.com.au | p: 02 6206 1300