There are important factors that same sex couples with children, or who are planning to have children, need to consider.
The fact that a gay male couple whose child was conceived via an artificial insemination procedure are not recognised under law as "parents" - unless they legally adopt the child or obtain a parenting order that formally recognises their rights - can have huge implications for a family. For example, it can impact on their right to make decisions about emergency medical treatment in the absence (or death) of the biological parent.
Gay male and lesbian couples who are thinking of starting a family should consider signing a donor agreement and obtaining parenting orders when their child is born to legally formalise their shared parental responsibility for their child.
GLBTI: Gays, Lesbians, Bisexual, Transgender, Intersex
Are you in a same sex relationship and thinking of starting a family? For couples in this position, there are legal issues surrounding parental rights that should be considered before starting a family. This article will explore the rights of both biological and non-biological parents who are in gay male and lesbian relationships.
The information in this article applies to couples who reside in Victoria. For information pertaining to other Australian states and territories, please speak with one of our senior Family & Relationship Law team members.
What the Family Law Act means by “parent”
Under the Family Law Act (the Act) both parents of a child are responsible for the care, welfare and development of their child – regardless of whether they are married, separated or have never lived together.
Historically, a parent was defined as a biological and/or adoptive parent and, therefore, non-biological parents were not considered “parents” unless they had either:
- legally adopted the child; or#
- obtained a parenting order formalising their rights and responsibilities in respect of the child.
By law, lesbian couples have the same parental rights as heterosexual couples. These amendments do not, however, apply to gay male couples who must still either adopt or obtain parenting orders to legally formalise their parental rights.
Gay male partnerships
It is important for gay male couples to be aware that a sperm donor is not legally deemed to be a parent of any child conceived through an artificial insemination procedure.
This means that a male couple who conceive a child with a woman via artificial insemination are not legally deemed to be the parents of that child, even though the partner who donated sperm is biologically the child's father. Rather, the biological mother and her partner (if she has one) will be deemed to be the child's parents. This applies regardless of the intention of the parties and whether the biological mother's partner is male or female.
In this situation, the only way for a gay male couple to formalise their parental rights is by adopting the child - which can be a long and expensive process - or by obtaining parenting orders from the Family Court.
A lesbian couple who conceive a child through artificial insemination are, subject to certain conditions, legally considered to be the parents of that child. This is provided that the couple has been living together in a de facto relationship at the time the child was conceived, and that both parties have consented to the procedure being undertaken. If these conditions are not met, then the non-biological mother is not legally considered to be the other parent of the child.
If a child is conceived through a donor who is known to the parents, It would be prudent for all parties involved to obtain independent legal advice and create a donor agreement. A donor agreement is not legally binding, however it demonstrates the intention of all parties when the child was conceived and will avoid any doubt as to the donor's role in the child's life.
A donor agreement will, to a certain extent, protect both the donor's rights and protect the rights and role of the non-biological parent. It will not prevent a donor from being able to bring an application in the Family Court seeking contact with the child, however the agreement can be used as evidence of the parties' intention at the time the child was conceived.
Traditionally, Parenting Orders have been used to formalise child care and living arrangements following the breakdown of a marriage or de facto relationship. They are now also increasingly used by gay male and lesbian couples who wish to formalise their parental rights in respect of their child (or children).
Although the rights of lesbian parents are now protected by law, it is still prudent for couples to apply for Parenting Orders to protect the non-biological parent's role within the child's life. This ensures that the non-biological parent has the same rights under law as the biological parent, such as the legal right to make decisions in relation to schooling, medical care, religion etc.
Gay male couples will need to either obtain Parenting Orders or adopt in order to legally be deemed the parents of their child. Gay male couples who do not formalise their parental rights in this way will not have the legal right to make decisions in relation to their child (ie decisions in relation to schooling, medical care, religion etc).
Equal parenting rights when a relationship breaks down
The Family Law Act requires that the parties involved try to reach agreement about what happens to their child in the event that their relationship breaks down.
Where there is agreement as to the amount of time each party spends with the child, this can be drawn up as a Parenting Order and lodged with the Family Court. This formalises the non-biological parent’s legal rights and responsibilities for the child.
However, if a shared parenting arrangement cannot be reached and the parties dispute either:
- the amount of time each party should have with the child; or
- whether a party should be able to share equal parental responsibility for the child,
then either party can apply to the Court for a parenting order.
In a gay male relationship where there has been no formal adoption or there are no orders specifying parental responsibility for the child, a party may apply to the Family Court as a “person concerned with the care, welfare and development of the child”.
In this instance, the Family Court will usually order the parties to attend a conference with a family consultant. Family consultants are qualified social workers or psychologists, with expertise in working with children and families, and are appointed by the Court.
The family consultant will present a report to the Court containing their recommendations for what arrangements will best meet the future care, welfare, and developmental needs of the child. This will include recommendations as to who the child should live with and what time they should spend with each party.
What the Family Court will take into account
It is important to remember that the Court will always make the child’s best interests its primary consideration when making a decision. This will include taking into account:
- the nature of the child’s relationship with each party;
- the capacity of each of the parties to provide for the needs of the child, including emotional and intellectual needs;
- the likely effect on the child of changes in his or her circumstances;
- the need to protect the child from physical or psychological harm;
- any family violence involving the child or a member of the child’s family; and
- the child’s maturity, sex and background, including any need to maintain a connection with a lifestyle or culture.
If the child is old enough, their wishes may be taken into account.