Rainbow families: Part I

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 one of our experienced family lawyers to discuss your questions and concerns further.

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