眾律國際法律事務所

Adoption

Section 89 of the Adoption Act[1] restricts its adoption right to heterosexual individuals or couples may infringe article 21 of the Convention on the rights of the child (“CRC”)[2] in conjunction with article 2. Article 21 of the CRC[3] requires countries that permit adoption to ensure that the best interests of the child are ‘the paramount consideration’ in the adoption process. Discrimination against same-sex couples in adoption may also lead to discrimination in access to financial entitlements for the benefit of the family, which are only available to birth parents or adoptive parents.

Such restrictive and discriminatory laws have a particularly serious impact on the children of gay couples. It is particularly difficult for gay couples to become a legal parent of their child without adoption. Gay male couples that wished to have children would need to go through artificial reproductive procedures or intercourse without involving a childbearing woman. Such limited scope of state adoption laws severely limits the possibly of adoption for same-sex couples. Thus, it has certainly infringed article 21 of the CRC[4] that requires the best interests of the child to be the paramount consideration in adoption.  This may also compromise the best interest of the child under article 3(1) of the CRC[5] that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a paramount consideration.

Recommendations

One of the consequences of the reform introduced by the Same-Sex relationships[6] and the Family Law Amendment[7] is that from 1^st July 2009, the FLA acknowledges that children are frequently cared for by a range of ‘other people significant to the care’ of a child. Those people other than the birth parents or adoptive parents can seek a parenting order from the Family Court of Australia if they wish to formalise their parenting role.[8]

Further amendments are needed to clarify the status and role of a person who has no biological connection to a child. This is to ensure equal protection for the children of same-sex parents. As a federal government policy officer, such reforms should include the recognition of lesbian co-mother or gay co-father. Federal laws should ensure that a lesbian co-mother of an artificial child could access the same financial and work-related entitlements available to a birth mother and birth father. This could be achieved by amending the FLA to include a parenting presumption in favour of the lesbian co-mother of an artificial child and ensuring that the definition of ‘child’ in any relevant legislation recognizes the parenting presumptions of the FLA; or in the Acts Interpretation Acts[9] that any references to a person’s ‘child’ in federal legislation would include the artificial child of a lesbian co-mother. In addition, Queensland should also enact parenting presumptions in favour of lesbian co-mothers and gay co-fathers. While parenting presumptions are appropriate for the artificial child of a lesbian couple, broader adoption laws are the better solution for a gay couple having an artificial child. Federal financial and work-related laws should include the definition of ‘step-child’ that recognizes a child under the care of a ‘de facto partner’ of a birth mother or birth father. ‘Step-parent adoption’ laws should be more readily consider adoption by a lesbian co-mother or gay co-father. Same-sex couples should have equal rights to apply for adoption of an unrelated child. Further, there should be a public information and education campaign to ensure that gay and lesbian families are aware of their rights and entitlements under federal financial and work-related laws. In addition, federal laws should explicitly recognizes the eligibility of a person who has a parenting order from the Family Court of Australia. Such access to financial or work-related benefits would be extended beyond legal parents. 

Bibliographies

Secondary Sources

Belle Lane, ‘Who is a parent?’ (2010) 21(2) Australian Family Lawyer.

Child support Agency “The Guide” (2012) <http://guide.csa.gov.au> at 11 January 2012.

Anti-Discrimination Commission Queensland, Submission 264.

Jenni Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law – Part Two: Children’ (2006) 34 (2) Federal Law Review, 29.

Office of the United Nations High Commissioner for Human Rights. ‘International Covenant on Civil and Political Rights’ (1976).

R Hodgkin and P Newell, ‘Implementation Handbook for the Convention on the Rights of the Child,’ UNICEF (2002).

Cases

Re Michael: Surrogacy Arrangements [2009] FamCA 691.

Legislations

Acts Interpretation Act 1954 (Qld).

Adoption Act 2009 (Qld).

Discrimination Law Amendment Act 2002 (Qld).

Explanatory Memorandum Family Law Amendment (De-Facto Financial Matters and Other Measures Bill) (2008).

Family Law Act 1975 (Cth).

Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth).

Same-Sex relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (Cth).

Surrogacy Act 2010 (Qld).

Status of Children Act 1978 (Qld).