BEING a PARENT has MANY DIFFERENT meanings. Whilst you may be your child’s parent in the day-to-day realities of your family life, you may not necessarily be the legal parent.

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Legal parent status emerges from the following situations:

 

1. Sexual intercourse between a woman and a man:

• The legal parents are the biological mother and father, regardless of the intention of the parties at the time (e.g.  even if it was to only get pregnant);

 

2. IVF, donor insemination, or home insemination:

• The deemed legal parent is the birth mother (even if she is not the genetic mother, e.g. she has carried her partner’s egg or a donor egg) and her de facto partner (if she consented to the conception procedure) is ‘the other intended parent”;[i]

• Even with home inseminations, the de facto partner is considered the ‘other intended parent’ unless it is shown that she did not consent to the insemination procedure or was not in a de facto relationship with the birth mother;

• The sperm donor is not given automatic legal recognition as a “parent” because the law provides that the birth mother is deemed the legal parent and her partner, in a de facto relationship, is the ‘other intended parent’. However, in certain circumstances, this does not prevent the sperm donor from making an application to the Family Court to be declared a “parent”[ii] or from seeking orders to spend time with the child. There have been cases where known donors have been successful in a declaration of legal parentage and obtaining orders to spend time with a child. If the birth mother is not in a relationship, then this also leaves the door open to the donor making an application to be declared a legal parent.

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3. Adoption:

• When a child is legally adopted and the adoptive parents become the legal parents of the child. Through adoption, the relinquishing parents lose their legal parental status.

 

4. Transfer of parentage through altruistic surrogacy:

• When a child is carried by a woman for the intended parents through an altruistic surrogacy arrangement and the legal parentage of the child is transferred from the birth mother (and possibly her partner or husband) to the intended parents.

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Most lesbians become pregnant through IVF or insemination procedures through a fertility clinic. In some cases, lesbians using a known donor prefer home insemination as it may be more personal and feel more natural. It also might mean that both mothers feel they created the child together, with both being directly involved in the insemination.

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Both you and your partner must have consented to the insemination procedure (either through a clinic or at home) through which the child was conceived in order for both parties to be deemed the legal parents. If you are in a de facto relationship, then it is presumed that you consented to the procedure. Some fertility clinics may require you to sign consent forms to the insemination procedure. Consent to the insemination procedure, although presumed, can be rebutted if you have evidence that you did not actually consent to the procedure.

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For those lesbians who have older children, this presumption is retrospective and applies to all existing lesbian families. Prior to changes in legislation in 2008[iii], the birth mother’s partner had no legal rights and was not deemed to be a “legal parent”.

 

Parental responsibility

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Once you are deemed to be a legal parent, you would generally have what is referred to as “parental responsibility” for a child.[iv] This means that you have the responsibility and power to make decisions about the child’s care and welfare. This includes important decision-making power with respect to education, religion, living arrangements, overseas travel, and health.

You and your partner would at first instance share parental responsibility, meaning you have “equal shared” parental responsibility.

 

Most often parental responsibility is shared by the legal parents unless there is a strong reason not to (e.g. there is family violence or one parent has mental health issues).[v] Equal shared parental responsibility means you make joint decisions on major issues affecting the child.

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In making a decision about who has parental responsibility after you and your partner have separated and whether it is “equal”, a court looks at the benefit to a child of a meaningful relationship with the legal parents and/or the donor, regardless of biology. Parental responsibility can also be given to someone who is not a legal parent, for example a grandparent or another relative, if a parent is unable to care for the child or make decisions, or where a child is fostered.[vi]

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You don’t have to be a biological parent to be listed on a child’s birth certificate as a parent. In all states, the birth mother (including a surrogate) is always recognised as the legal parent, even if she is not the genetic mother.[vii]

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If you are in a de facto relationship with the birth mother at the time of conception and the child was conceived through a fertilisation procedure (i.e. IVF, insemination at a fertility clinic, or home insemination), then you are considered the other legal parent of the child.[viii]

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Each state and territory in Australia has its own legislation recognising non-birth mothers in lesbian relationships as legal parents.[ix]

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The primary concern of the Family Court is the child’s best interest[x] – and the court starts with the assumption that it is in the child’s best interest to have a meaningful relationship with both legal parents.

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A non-biological parent or any other person who is “concerned with the care, welfare and development of a child” can make an application to the Family Court for parental responsibility.[xi] This can include known donors, grandparents, aunties, uncles, etc.

 

Can there be more than 2 parents

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A difficulty facing single lesbians and lesbian couples at present is that some children are conceived and raised by not only one or two parents, but three or four (including the birth mother, her partner, the donor dad, and his partner) in co-parenting arrangements.

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The law at present will only recognise two legal parents, meaning the other parents may be left with little or no legal recognition. Generally, only two people can have parental responsibility at any one time, meaning the other “parents” in the co-parenting arrangement have no legal say over any decisions relating to the care and welfare of the child. This is irrespective of whatever the intention may have been at the time of conception regarding any co-parenting arrangement with a known donor.

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Steps could be taken, either with or without the consent of the legal parents, on the application by one party, e.g. a known donor, for some type of recognition or order (on application to the Family Court) for the child to spend time with them or to be consulted about decision-making in relation to the child.

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In a recent Family Court case, the court granted two lesbian parents and two men (the donor and his partner) the right to be heard in application for parenting orders. In this case the court granted the lesbian parents parental responsibility, but provided for orders giving the donor dad and his partner regular visitation time with the child.[xii]

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Summary of Main Points:

 

1. You may be the biological parent of a child, but not deemed a legal parent, under certain circumstances.

2. Legal parents generally are heterosexual partners who are the child’s biological parents, or the child’s birth mother and her de facto partner, unless there is evidence she did not consent to the insemination.

3. Parental responsibility can be granted to people who are not the child’s legal parents, including the sperm donor.

4. Only two people can be legal parents of one child.

 

 

Footnotes

 

[i]  ss 60H and 60HA of the Family Law Act 1975 (Cth)

[ii] In a recent decision in Groth v Banks [2013] FamCA 430, a sperm donor obtained orders from the Family Court for equal shared parental responsibility with the single mother and was then liable to pay child support.

[iii] Amendment of s 60H(1) of the Family Law Act 1975 (Cth)

[iv] s 61C Family Law Act 1975 (Cth)

[v] s 61DA Family Law Act 1975 (Cth)

[vi] s 64C & s 65C Family Law Act 1975 (Cth)

[vii] Status of Children Act 1996 (NSW), s 14; Status of Children Act 1974 (Vic), ss 10C–10F; Family Relationship Act 1975 (SA), s 10C; Artificial Conception Act 1985 (WA), ss 5–7; Parentage Act 2004 (ACT), s 11; Status of Children Act 1978 (Qld), ss 15–17; Status of Children Act 1974 (Tas), s 10C.

[viii] s 60H Family Law Act 1975 (Cth)

[ix] Parentage Act 2004 (ACT), s 11(4); Status of Children Act 1996 (NSW), s 14(1A); Status of Children Act 1979 (NT), s 5DA; Status of Children Act 1978 (Qld), ss 19B–19E; Family Relationships Act 1975 (SA), s 10C(3); Status of Children Act 1974 (Tas), s 10C; Status of Children Act 1974 (Vic), ss 13 and 14; and Artificial Conception Act 1985 (WA), s 6A.

[x] s 60CA Family Law Act 1975 (Cth)

[xi] s 65C(c) Family Law Act 1975 (Cth)

[xii] Wilson v Roberts (No 2) [2010] FamCA 734

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Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

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If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.

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