Advances in assisted reproduction technology have meant that the law has had to reconsider definitions and presumptions about who a child’s parents are for legal purposes. The rights of lesbian parents are protected by law, however, it is very important that gay male couples or other couples whose child was born via surrogate take steps to legally formalise their parental rights.
For heterosexual married or de facto couples where the wife or female partner gives birth, the husband or male partner is legally presumed to be the father. If a male is registered as the father on a child’s birth certificate, he is presumed to be a parent of that child.
Artificial insemination – heterosexual and lesbian couples
For married or de facto couples (heterosexual and lesbian) where the wife or female partner gives birth to a child as a result of an artificial conception procedure, the couple are legally considered to be the child’s parents. This is, of course, provided that the other partner consented to the procedure.
It does not matter whether both partners are female or whether either one of the couple is actually the child’s biological parent.
Sperm donors and surrogates
In an effort to protect sperm donors from financial and other responsibilities, the law does not recognise donors as fathers. This applies despite any intentions to the contrary by the parties involved.
The fact that a sperm donor is not considered to be the father of a child conceived through an artificial insemination procedure has particular implications for gay males and other couples who have a child via surrogate. It means, for example, that a gay 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.
Formalising your parental rights
Where a sperm donor has been used, there are only two ways that the intended parents can legally formalise their parental rights. These are by:
- adopting the child - which can be a long and expensive process; or
- obtaining parenting orders from the Family Court, which can make orders that a particular person is legally the parent of a child and therefore has parental responsibility for that child.
It is very important that gay male couples (or other couples whose child was born via surrogate) legally formalise their parental rights in one of these two ways.
Although the rights of lesbian parents are now protected by law, it is also prudent for lesbian couples to obtain parenting orders to protect both partners’ roles as parents – particularly the partner who is not the child’s biological mother. This ensures (largely for the benefit of third parties) that both parents are legally recognised as having the right to make important decisions about their children, such as schooling, health, religion, as well as other decisions like overseas travel.
The law is still evolving
The law in this area is still very much evolving and does not always provide certain outcomes. For example, in one reported decision, a lesbian couple had been living together in a de facto relationship and conceived a child via artificial insemination. Once the child was born, both cared for the child.
The couple later separated and the child’s biological mother argued that the non-biological mother was not actually the child’s parent and should therefore no longer be part of the child’s life.
The case went before the Full Court of the Family Court which, among other things, had to consider whether non-biological parents are able to have parenting orders granted in their favour. In this case, the Court ruled that the non-biological mother should be granted parenting orders and continue to play a role in the child’s life.
However, the Court also noted that, although under the Family Law Act there is now a greater emphasis on the role of both the biological and non-biological parent, every case would still always be determined in relation to that particular child’s best interests.
What happens if you are a carer who is not the child's parent?
In certain situations, people who are not a child’s parents may be granted parenting orders by the Family Court. In this instance, the Court must be convinced that the person is someone who is “concerned with the care, welfare and development” of the child, such as a grandparent or other interested person. This is a complex area of law and we recommend you seek legal advice if this applies to you.