In this Alert, Partner Alison Ross and Associate Kathleen Coggins discuss the recent Queensland case where a sperm donor was removed from the birth certificate in favour of both parents’ names of a same sex couple.

Key points:

  • In Queensland, same sex parents may both be recorded on a child’s birth certificate as a parent to a child born as a result of artificial insemination, even if the child’s birth certificate initially recorded either only their mother, or their mother and the sperm donor, on the birth certificate. 
  • Regardless of who is recorded as a “parent” on a child’s birth certificate, it is open to a Court exercising jurisdiction under the Family Law Act 1975 (Cth) to make an order for a child to spend time with any person who is concerned with the care, welfare and development of the particular child, including a sperm donor who is not otherwise a legal “parent” of the child. 

A & B v C [2014] QSC 111

In a recent Queensland case, both members of a same sex couple have been recorded on their two children’s birth certificates as parents of the children while the name of the children’s biological father, a known sperm donor, was removed from the children’s birth certificates.

In this particular case, the two children were born to a same sex couple as a result of artificial insemination.  The children were born in 2004 and 2006, prior to legislative changes in 2010 which enabled both members of a same sex couple in Queensland to be recorded as “mother” and “parent” on a child’s birth certificate.

Prior to these legislative changes, the mother’s same sex partner could not be recorded as a parent on the children’s birth certificate.  The mother had recorded the children’s biological father, a sperm donor, as a parent on the birth certificates as she stated that she had been informed by Centrelink that she would otherwise be deemed a single parent and her social security benefits would be affected accordingly.

Once the Court decided that both the mother and her same sex partner were the “parents” of the children under the Status of Children Act 1978 (Qld), the Court considered whether the public record should be amended to correct the children’s birth certificates.  The Court agreed that this should occur and an order was made under the Births, Deaths and Marriages Registration Act 2003 (Qld) to correct the children’s birth certificates, referring to the mother’s same sex partner as a “parent” and removing the sperm donor’s name from the certificate.

Observations

Although the legislative changes enabling both members of the same sex couple occurred in 2010, this appears to have been one of the first cases in Queensland where the Court has affirmed a same sex couple’s right to both be recorded as “parents” on their children’s birth certificates.  While the children were born prior to the enactment of these changes, the changes are retrospective, enabling the correction of the children’s birth certificates in this instance.  There are likely to be many other instances where children are born in similar circumstances where same sex couples will be able to take advantage of these legislative changes to record their children’s legal parentage.

It should be noted, however, that regardless of who is recorded on a child’s birth certificate, under the Family Law Act 1975(Cth), it remains open to any person sufficiently concerned with the care, welfare or development of a child to make an application for parenting orders.  This means that a Court exercising jurisdiction under the Family Law Act 1975 (Cth) may make orders for a child to spend time with a sperm donor (and, therefore, a child’s biological father), even if they are not regarded as the child’s “parent” and not recorded as a parent on a child’s birth certificate, provided the Court considers this to be in the best interests of the child.