眾律國際法律事務所

In circumstances of artificial insemination, the birth mother will be a legal parent whereas the other intended parent, the lesbian co-mother, would need to obtain a parenting order in respect of their child. Such parenting order may not always entitled lesbian co-mothers to have the same financial and work-related benefits as a legal (birth) parents do. The other intended partner in the same-sex relationship will only be considered as a ‘parent’ of a child if the child was born in a de-facto relationship at the time of the artificial insemination.[1] This may compromise the best interest of a child born to a lesbian or gay couple.[2] The result is that same-sex families are excluded from a range of federally funded entitlements and benefits that are available to heterosexual families. Consequently, this has resulted in same-sex families being denied access to benefits intended to help parents’ support their children that may leave the children in a same-sex family worse off than other children from opposite-sex families.

Therefore as a federal government policy officer, it is important to undertake further reforms to ensure equality of the children being raised in same-sex families and to clarify access entitlements for parents seeking to support their children in the best way they can.

Surrogacy

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent. Pursuant to the Surrogacy Act,[3] the intended parent or intended parents may include a man and an eligible woman; or two men; or two eligible women to be parents of the child; and a birth parent would stop being a parent of the child.[4]

The present requirements for gay couples making a parenting order include a proposed order for the well-being and in the best interest of the child; the child must has resided with the applicant for at least 28 consecutive days before the day of the application was made and before time of hearing; proof of evidence of a medical or social need for the surrogacy arrangement and such arrangement was made after the parties obtained an independent legal advice; all parties must have obtained counseling from a qualified counselor about the surrogacy arrangement and such arrangement was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants before the child was conceived; provided such arrangement cannot be a commercial arrangement.[5] It is recognized that further reform is needed to clarify the status and role of a person who has no biological connection to a child.

Article 26 of the International Covenant and Civil and Political Rights[6] provides:

“All persons are equal before the law without any discrimination to the protection of the law. The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…”

In Re Michael: Surrogacy Arrangements,[7] Watts J considered[8] s60HB of FLA and found unexpected consequences in relation to application for leave to adopt a child born as a result of a family surrogacy arrangement. This is one example of how the new provision s60H of FLA could lead to strange results.  In Re Michael, Sharon’s mother Lauren, who was in a de factor relationship with Clive, gave birth to Michael by using Paul’s sperm (Sharon’s husband) as Sharon suffered from a cervical cancer, she could not give birth. However, due to the s60G of FLA which defines the “prescribed adopting parent”, Paul and Sharon could not adopt Michael despite the fact that Paul was Michael’s biological father. Section 60H of FLA only provides scope for a child born as a result of artificial insemination to have two parents, this provision would not however assist the children of a gay male couple who have a child or children under a surrogacy arrangement. Such restriction is problematic for children born to multi-parent families, or children born to gay male couples. Despite the fact that the new s60H of FLA has now recognised the status of non birth mother, nevertheless, in a number of cases, s60H of FLA is not sufficiently flexible to recognize the various forms of family that exist in today’s society. Further reform would need to be made to recognise the multiplicity of family constellations for the benefit and security of the children living with them.