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Parenting in Same Sex / Surrogacy Cases

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Recognition of Same Sex Parents in Family Law

In 2008, the law was changed to give people in same-sex relationships the same rights and responsibilities as people in heterosexual relationships. The Family Court has greater powers, including recognising parents of children born through artificial conception procedures (“ACP”), non commercial surrogacy arrangements and children adopted by same-sex couples.

 Same-sex parents can apply for parenting orders for:

  • who the child will live with;
  • who the child will spend time with; and
  • who will make the major long term decisions (known as “parental responsibility”) for the child.

Children Born through Artificial Conception Procedures (“ACP”)

An “intended parent” who is not in a de-facto relationship or married to the birth mother at the time of the ACP is not recognised as a parent.  “Intended” parents of children born by ACP are only recognised as parents if the birth mother and the other “intended” parent are married or in a de-facto relationship at the time of the ACP, and where consent to the procedure was provided by the other intended parent.  This has created problems for some intended non-biological parents if their relationship with the biological parent comes to an end, and the biological parent does not want the other intended parent recognised.

If you or your spouse are considering undergoing ACP, a practical way to prove you were in a de-facto relationship at the time of the conception is to register under the Relationships Register Act 2010 (NSW).

Children Born in Surrogacy Arrangements 

Surrogacy is regulated under state legislation. If your surrogacy meets the requirements set out in the relevant state legislation, an order for “parentage transfer” can be made, recognised fully in family law.

Where a surrogacy falls outside this legislation, the Family Law Act is unable to recognise an “intended” parent as a parent. As some Australians are opting to pursue commercial surrogacy arrangements overseas, the strict preconditions required in altruistic surrogacy arrangements under Australian state laws are not met and problems arise for possibly both “parents”.

Children born overseas can obtain citizenship by descent, if one of the “intended” parents is a biological parent or there is a legal surrogacy in place, (among other factors). Whilst the child will be issued with a passport by the relevant government body and be able to live with the “intended” parent,  the Family Law Act is unable to recognise that “intended” parent as a Parent because an order under the relevant state legislation cannot be sought for an illegal surrogacy arrangement.

The object of Family Law for children, is to achieve an outcome that is in the best interests of the child. In light of psychological attachment of children to the actual person who “looks after them” (to use a neutral term instead of who “parents them”), denying parenthood status to the persons that the child considers to be its parent, may damage the child’s development.  Perhaps, it is not the circumstances of a child’s conception or their parents gender that ought be paramount consideration of the Court, but the “best interests of the child” which is the backdrop for so many of the Court’s obligations and rulings about children.

Contact a member of our family law team if you require assistance


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