BIRTH CERTIFICATES

A BIRTH CERTIFICATE is an OFFICIAL copy of the birth registration of a child and is often used to help establish a person's identity.

On the birth certificate are name, sex, age, and place of birth of the child. When applying for enrolment in school, you’ll often need to show a passport, a driver’s license, and a birth certificate. This document is recognition from the government of a person’s identity and where he or she came from.

Mother and mother/parent

Until recently, a lesbian co-parent was unable to be listed on the birth certificate of a child born to her partner. Almost all states now provide for lesbian partners to be listed as a “parent” or (other) “mother” on their child’s birth certificate. The Northern Territory is the only place where there is no standard process.

To avoid any issues if you and your partner separate after having a child (such as whether the birth mother’s partner is a parent or not) it is a good idea that you and your partner immediately register both of you as parents on your child’s birth certificate. Even if you are not on the birth certificate, you can still be a legal parent, but it makes it much easier to assert your parental rights if you are listed on your child’s birth certificate once your child is born.

If you and your partner have children and one of you is not listed on the birth certificate, then you can make contact with the Registry of Births, Deaths, and Marriages in your state and inquire about amending the birth registration details to include the birth mother’s partner as a parent of the child.

If both mothers are named as parents on their child’s birth certificate, then there is a presumption of parentage and this provides for both parents to have parental responsibility for the child. This means that you won’t have to apply to the Family Court to be declared a legal parent.

If you were not in a de facto relationship when your child was born, then it may be just you listed on your child’s birth certificate. You do not have to list the donor if he is a known donor. I am listed on my daughter’s birth certificate along with her other mother, and I’m the only one listed on my son’s birth certificate (as I conceived my son after we separated). Although the down side of not having another parent listed (i.e. “mother” and “mother/parent”) is that the birth certificate will have “father” listed, and it will be blank.

Can you have more than 2 parents listed?

At this stage, it does not appear possible to have any more than two parents listed on a child’s birth certificate. This means that if you use a known donor, you won’t be able to have both mothers and the donor as the “father” on the birth certificate.

We all know that times are changing and family structures are changing. We now create families in many different ways and often lesbians will ask their gay friends to be their sperm donors. Children are now being born into families with two mums and one dad or two mums and two dads, and the list goes on! Unfortunately, the law hasn’t yet caught up with our changing family structures.

Legal reform will send a strong message to the community that the family of a child of lesbians is as legitimate and deserving of support and protection as any other. The flow-on effects in social attitudes are as important as legal reform itself, particularly in terms of the degree of acceptance our children and future children will experience in the broader community.[i]

Interestingly, only two states in Australia prohibit more than two parents being listed on a child’s birth certificate. Section 14 of the Australian Capital Territory Parentage Act 2004 (ACT) notes that “a child cannot have more than two parents at any one time” and section 10A (1)(c) of the Queensland Births, Death & Marriages Registration Act 2003 (Qld) says that “not more than two people in total may be registered as the child's parents (however described)”.

New South Wales, South Australia, Victoria, Western Australia, Tasmania, and Northern Territory do not explicitly prohibit more than two parents being recorded on a birth certificate.[ii]

There have been some recent cases where a known donor was listed on the child’s birth certificate as the “father” and the birth mother and her partner have successfully sought an order from the Family Court to remove the donor’s name and add the birth mother’s partner’s name as the other parent.[iii]

Even if a known donor is listed as the father on a child’s birth certificate, this does not make him the legal parent if the child was not conceived through sexual intercourse. It may make it harder, however, for the co-mother to assert her parental rights.

New South Wales

In NSW, lesbians in a de facto relationship may be recognised on their child's birth certificate. The same Birth Registration Statement is issued by the hospital to all mothers, but you will need to apply for a Same-Sex Birth Registration Statement to have both parents listed on the birth certificate as “mother” and “mother”. A Birth Registration Statement is the form you fill out to obtain your child’s birth certificate. You may also choose to have a notation at the bottom of the certificate stating which mother is the birth mother.

The NSW Registry of Births, Deaths, and Marriages also allows for an application to be made to amend a child’s birth registration details to retroactively add the birth mother’s partner and also to record both women as parents or mothers. The birth mother’s consent, or an order from the Family Court, is required to amend the birth certificate to add the other mother.

Go to the NSW Births, Deaths and Marriages website at http://www.bdm.nsw.gov.au/Documents/apply-for-add-a-parent.pdf for the form which is used to amend your child’s birth certificate.

Queensland

In QLD, lesbians also have the right to record the names of both the birth mother and the female de facto parent on the child’s birth certificate. Both of your names will be shown on your child’s birth certificate as “mother” and “parent” or “parent” and “parent”.

If your child was born prior to 1 June 2010 and you would like to correct the birth register, you can apply amend the birth certificate to add a parent to the birth certificate.

Victoria

In Victoria, the birth mother and her partner must complete a Birth Registration Statement (BRS). The hospital, medical facility, or midwife gives the BRS to the parents at the time of the child's birth. Parents will be noted on the birth certificate as “mother” and “parent”. For donor-conceived births that were registered before 1 January 2010 where the birth record does not name a father, the mother and her female partner must complete a registration form to amend the child's birth record.

For donor-conceived births that were registered before 1 January 2010 where the birth record names a father, the mother and her female partner must apply to the County Court of Victoria for a court order directing the Registry to amend the birth record to show the mother's female partner as the other parent.

In all cases, the mother's partner must have given her consent at the time of the procedure that resulted in the pregnancy.

A child’s birth certificate can also include previous children of the current relationship, including those children born to the mother’s partner (as long as it is from the same relationship).

Australian Capital Territory

In the ACT, lesbians can both be recorded as the parents of a child from a same-sex relationship. The ACT's birth registration process allows for a person to be registered as a “mother”, “father”, or “parent”.

Western Australia

Western Australia's Registry of Births, Deaths, and Marriages allows for registration of lesbians as parents on their child’s birth certificate. The birth can be registered using the “Same-Sex Parents Birth Registration Form”. The form gives the parents the option of describing themselves as “mother” and “parent”, “mother” and “mother”, or “parent” and “parent”.

South Australia

In South Australia, lesbians are recognised as the co-parents of babies born from a de facto relationship. The parents will need to complete a birth registration statement adapted for same-sex parents, with both parents required to sign.

For births registered before 15 December 2011, the birth mother and co-parent can apply to change the birth record to add the female partner as a co-parent in some cases.

For births registered after 15 December 2011, the birth mother and co-parent can both be included on the birth registration and birth certificate in some cases.

Northern Territory

The NT does not currently have an application for a birth certificate for same-sex couples.

What if the birth mother does not agree for you to be added to the birth certificate?

If you had a child via articial insemnitation with your ex-partner, but you are not listed on your child's birth certificate, then you can apply to the NSW Registry of Births, Deaths and Marriages to have your name recorded on your child's birth certificate.

The birth mother will need to consent to your name being added. If the birth parent will not give their consent, you will need to obtain an order from the Family Law Courts stating that you are the child's legal parent.

Can you have a donor removed from a birth certificate?

If you have registered your child's birth and included the donor on the birth certificate, you can have the donor removed to add your partner (the other mother of your child).

You will need to complete the form 'Adding a Parent's Details to a Birth Registration'. To add a mother to the birth certificate of a child born from an artificial insemination procedure:

You and your partner must have been maried or in a defacto relationship;
The non-birth mother must have consented to the insemination procedure.

You should also have the donor sign a statutory delation to submit with the registration form that states:

They are the donor in resect of the child;
The child was conceived thorugh an artificial insemination procedure;
They consent to their name being removed from the child's birth registration.

There have been cases where a donor will not consent to being removed from a child's birth certificate. If this happens, then you will need to make an application to the Court for a declaration of parentage. You will need to prove that the child was conceived from an artificial insemination procedure and not from sexual intercourse with the donor.

In the case of AA v Registrar of Births, Deaths and Marriages and BB (2011) a lesbian non-birth mother applied to the District Court to have her name inserted on a child's birth certificate, and removing the donor's name. The sperm donor did not consent to the application. In this case the donor did have an ongoing role in the child's life. The Court agreed with the non-birth mother's application, ordering that the donor's name be removed and the non-birth mother's name added as the child's other legal parent.

New Birth Certificates in Adoptions

If you and your partner decide to adopt a child, or you adopt as a single parent, a new birth certificate will be issued which reflects you as the legal parent. If it is a joint adoption, your partner will be listed as the “mother” or “parent”.

Summary of Main Points

Most states now provide for lesbian partners to be listed as a “parent” or other “mother” on their child’s birth certificate.
At this time, it is not possible to have more than two parents listed on the birth certificate.
In most states you will be required to complete a specific (same sex) birth registration statement form.

Footnotes

[i] Short L, “‘It Makes the World of Difference’: Benefits for Children of Lesbian Parents of Having their Parents Legally Recognised as their Parents” (2007) 3(1) Gay and Lesbian Issues and Psychology Review 5

[ii] See Births, Deaths and Marriages Registration Act 1995 (NSW); Births, Deaths and Marriages Registration Act 1996 (SA); Births, Deaths and Marriages Registration Act 1996 (Vic); Births, Deaths and Marriages Registration Act 1998 (WA); Births, Deaths and Marriages Registration Act 1999 (Tas); Births, Deaths and Marriages Registration Act (NT)

[iii] Queensland case of A & B v C [2014] QSC 111

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.

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