Thursday, January 05, 2006

Same-sex parenting

I have continued my research on the legal situation of same sex couples in relation to parenting in Australia. The fact is that many lesbians and gay men are having children through formal and informal arrangements such as fertility clinics and donor insemination. According to a number of web sites I came across, research shows that over 20% of lesbians and 10% of gay men are already parents and many more want to have children.

The main issue in Australia in relation to co-parenting is that only biological parents are recognised as having a legally recognised relationship with a child in Australia. Same-sex parents do not have the same legal status as heterosexual parents. This means that most gay and lesbian parents and their children are left with no legal protection.

The broader issue is that the legal recognition of gay and lesbian relationships in Australia is very limited and this impacts on many aspects of life for gays and lesbians.

As far as I can tell from my reading to date, there are three relevant areas of law in relation to the issue of same-sex co-parenting: marriage, adoption and defacto relationships.

The Federal Marriage Act excludes gays and lesbians completely and therefore none of the laws that apply to marriage cover gay and lesbian relationships and this includes parenting. Despite the fact that there are now five countries in the world that recognise same-sex marriage and a trend which suggests that this will increase, in Australia the federal government made recent amendments to the 1961 Marriage Act to enshrine the common law definition of marriage as being between a man and a woman. This did not have any impact on the current way in which gay and lesbian relationships are or are not recognised, however it does prevent valid foreign same sex marriages from being recognised under Australian law.

De facto relationships:
According to a fact sheet published by the Gay and Lesbian Rights Lobby, NSW has only recently recognised lesbian and gay de-facto relationships and this recognition has not flowed through to recognising other family relationships, including those with children.

In Australia, states have their own adoption laws. There are only three states in Australia - Western Australia, Tasmania and the ACT that recognise same sex relationships in their respective adoption acts. In NSW lesbians and gay men can legally adopt children as individuals but cannot adopt as a couple.

The best chance of ensuring legal protection for gay and lesbian parents and their children seems to lie in advocating for state-by-state law reform. In NSW, The Gay and Lesbian Rights Lobby (GLRL) have recommended law reform options to ensure the recognition of relationships of gay and lesbian parents with their children.
These are the recommendations contained in the report And then the Brides Changed Nappies (April 2003):

  1. Amend the Status of Children Act 1996 (NSW) to make the definition of de-facto partner gender neutral. This will deem consenting co-mothers of Donor Insemination (DI) babies born to lesbian couples as parents in all NSW laws.
  2. Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that co-mothers of DI children can be listed as the second parent on birth certificates.
  3. Change the Adoption Act 2000 (NSW) to make the definition of de-facto partner gender neutral so that gay and lesbian parents can use the current step-parent adoption provisions when they are actually in the position of step-parents.
  4. Change the Adoption Act 2000 (NSW) to include a new provision for “co-parent adoption”. This will allow gay and lesbians co-parents to adopt with a presumption in favour of adoption where there is only one legal parent.
  5. Introduce a simple and inexpensive mechanism by which lesbian mothers can seek child support from one another if their relationship breaks down.

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