Families, policy and the law
- 1. Weaving a common narrative: An introduction to essays on families, policy and the law in Australia
- 2. Trends in family transitions, forms and functioning: Essential issues for policy development and legislation
- 3. Ancestry, identity and meaning: The importance of biological ties in contemporary society
- 4. Past adoption practices: Key messages for service delivery responses and current policies
- 5. The forced adoption apology: Righting wrongs of a dark past
- 6. Current open adoptions: Mothers' perspectives
- 7. Perfecting adoption? Reflections on the rise of commercial offshore surrogacy and family formation in Australia
- 8. Use of surrogacy by Australians: Implications for policy and law reform
- 9. Secrecy, family relationships and the welfare of children born with the assistance of donor sperm: Developments in research, law and practice
- 10. Gay and lesbian parenting: The legislative response
- 11. Step-parenting
- 12. Grandparents as primary carers of their grandchildren: Policy and practice insights from research
- 13. Contemporary issues in child protection intake, referral and family support
- 14. Mandatory reporting laws
- 15. Children in the out-of-home care system
- 16. Justice and the protection of children
- 17. Children, families and the law: A view of the past with an eye to the future
- 18. The ties that bind: Separation, divorce and the indissolubility of parenthood
- 19. Confidentiality and "family counselling" under the Family Law Act 1975
- 20. Has confidentiality in family dispute resolution reached its use-by date?
- 21. Family law: Challenges for responding to family violence in a federal system
- 22. Families with complex needs: Meeting the challenges of separation
- 23. Post-separation parenting arrangements involving minimal time with one parent
- 24. Family violence and financial outcomes after parental separation
- 25. Lionel Murphy and the dignified divorce: Of dreams and data
- 26. Prosecuting child sexual abuse: The role of social science evidence
- 27. The scientists are coming: What are the courts to do with social science research?
- 28. Social science and family law: From fallacies and fads to the facts of the matter
- 29. Complex family issues: Collective awareness, common narratives and coordinated approaches to promoting resilience
- About the authors
10. Gay and lesbian parenting: The legislative response
By Adiva Sifris
Same-sex parenting has become a recognised phenomenon within our community. While perceptions of stigmatisation within the gay and lesbian community and lack of funded research ensure that there remains a paucity of information regarding the number of children raised in these families, the most recent Australian Census data indicate that 12% of same-sex couples have children of any age (including adults) living in their family. Unsurprisingly, lesbian couples (22%) are more likely than gay male couples (3%) to have children living with them (Australian Bureau of Statistics [ABS], 2012).
The latest Census data confirm the findings of previous informal and formal surveys, which have gone some way towards indicating that these families represent a sizeable minority group. A 2001 Victorian community survey indicated that 21% of those surveyed reported that children were part of the relationship, with a further 41% expressing a desire for children in the future (Victorian Gay and Lesbian Rights Lobby, 2001). A 2005 study found that 19% of respondents had children, and a further 21% were planning to have children (McNair & Thomacos, 2005). The 2006 Australian Census figures indicated that 10% of same-sex families had dependent children living primarily with them. A much greater proportion (88%) of these children lived with lesbian couples, and 18% of lesbian couples had resident children, compared with 2% of male couples (Gorman-Murray, personal communication, 2010). The first decade of the 21st century witnessed the passing of legislation throughout Australia recognising same-sex families. These changes heralded the legal and social sanctioning of family structures falling outside the hetero-normative family unit.
The central theme of this chapter is the law's response to the social reality that gay and lesbian couples are having children and raising families. This chapter commences with a description of the constitutional and jurisdictional backdrop against which legislation in relation to same-sex parenting is passed and considered (see also Box 1). The reader is then introduced to the important but distinct concepts of “parentage" and “parenting orders" and their relevance to the world of gay and lesbian parenting. At the nub of this chapter lie the various pathways that gay and lesbian couples may follow to achieve parentage. These options are discussed, as is the law governing these processes and their consequences. The author concludes that while over the past decade there have been significant advances in the legal recognition of diverse family forms, gaps remain in the law. Furthermore, same-sex families present in more diverse forms than the accepted two-parent model and thus further legislative intervention is required.
Box 1: Legislative terminology
Biology dictates that semen from a man and the ovum of a woman are required to conceive a child. Thus gay and lesbian couples are obliged to use donor gametes in order to conceive children. Legislation has been passed on federal as well as state and territory levels regulating the legal parentage of children where donor gametes are used. There is, however, no uniformity in the terminology contained in the various statutes to describe procedures whereby a woman can become pregnant without having sexual intercourse with a man. Such procedures, which may generically be referred to as assisted reproductive technology (ART) or assisted conception procedures, include:
- donor insemination - introducing semen from either a known or unknown donor into a woman's body by means other than sexual intercourse; and
- in vitro fertilisation (IVF) - taking a female ovum from a woman's body, fertilising it outside her body, and implanting it either in her own body or that of another woman (Young, Monahan, Sifris, & Carroll, 2013).
The practice of IVF has opened up a whole range of possible genetic combinations for both same-sex and opposite-sex couples. For example, a woman's ovum may be fertilised by her partner's semen or the semen from a donor, or both the ovum and the semen may be from donors. For the sake of clarity, throughout this chapter the term “assisted conception procedures" is used to describe donor insemination and IVF procedures.
The constitutional and jurisdictional framework
The law relating to same-sex parenting is complex and diverse. In Australia, legislative power is divided between the Commonwealth and state governments. The Commonwealth Government is primarily entitled to legislate in respect of specific topics set out in sections 51 and 52 of the Commonwealth of Australia Constitution Act 1900 (the Constitution). Residual powers that are not expressly or impliedly vested in the Commonwealth remain within the exclusive legislative domain of the states. Section 109 of the Constitution provides that in the event of inconsistency between state and Commonwealth legislation, the Commonwealth legislation shall prevail and the state legislation is invalid to the extent of the inconsistency. So far as the ACT and Northern Territory are concerned, pursuant to s 122 of the Constitution, the Commonwealth Parliament is empowered to “make laws for the government of any territory". As a result, the Commonwealth Parliament may override laws passed by the territories. In some areas of family law - for example, adoption, access to assisted conception procedures and surrogacy arrangements - the states retain legislative power. In other areas, such as with whom a child should live on relationship breakdown, the legislative power rests with the Commonwealth. In effect, this means that each state, territory and the Commonwealth may pass legislation relating to areas that straddle both legislative spheres. For example, legislation relating to the parentage of children born as a result of assisted conception procedures exists on a Commonwealth as well as a state and territory level, creating a complex web of legislation. In order to establish a modicum of uniformity between the jurisdictions, provisions in the Family Law Regulations 1984 (Cth) create a link between the state and federal Family Law Act 1975 (Cth) (FLA).
The state and territory courts administer state and territory legislation. The federal family courts, which include the Family Court of Australia and the newly named Federal Circuit Court of Australia, are responsible for orders made pursuant to the FLA. These include applications for parenting orders and declarations of parentage. At the time of the establishment of the Family Court of Australia, Western Australia alone established a state family court. The Family Law Act 1997 (WA) mirrors the FLA. As this court is vested with both state and federal jurisdiction, it does not labour under the same constitutional difficulties as the Family Court of Australia.
Legal parentage and parenting orders
Two facets of scientific development have had a major influence on the law of parentage: assisted reproductive technology and genetic testing. The birth of children through assisted conception procedures has brought into sharp focus the question of who is to be regarded as the legal parent of a child. The very nature of these procedures means that parentage may be fragmented between biological and functional/social parents. Scientific developments are capable of piercing the fictional bubble of functional parenthood and accurately pinpointing biological parentage. The law has reacted to these scientific advancements such that biological parents may not be regarded as legal parents and, conversely, legal parents may have no biological connection to the child.
In circumstances where the law fails to recognise a person as a legal parent, it may nevertheless be possible for the Family Courts to make a parenting order in favour of such a person (s 64C of the FLA). The basis for making such an order is that the applicant is a “person concerned with the care, welfare or development of the child" (s 65C(c) of the FLA).
Parenting orders may include orders for parental responsibility; that is, long-term decisions regarding the welfare of the child, such as the name a child will be called, the school a child will attend, as well as any important medical decisions regarding the child. Such orders also include where and with whom a child will live and with whom a child will spend time (s 64B of the FLA). While the parameters of parenting orders are extensive, they are not as far-reaching as legal parentage - they terminate when the child turns 18 and do not grant parental status as such.
Pathways to parenting and legislative responses
Adoption and heterosexual intercourse are the obvious ways for same-sex couples to form families. Slightly less obvious, but nevertheless centuries old, is assisted conception using donor insemination, a relatively simple procedure requiring little medical or technological knowledge, in which parties may either self-inseminate or use clinical insemination. The relatively recent advent of highly technical assisted conception procedures such as IVF, which also enable children to be conceived through surrogacy arrangements, have presented other viable options for achieving parentage, especially for gay male couples.
Adoption and foster care
In 2012-13 in Australia, a mere 339 adoptions were finalised (Australian Institute of Health and Welfare [AIHW], 2013). Accordingly, the number of same-sex couples adopting children in Australia is negligible. Two reasons may be advanced for the drastic decrease in the number of adoptions in Australia - fewer children are available for adoption, and the advent of assisted conception has decreased the number of childless couples.
For same-sex couples, there are other, more obvious reasons for the low numbers of same-sex couples adopting children. No country with which Australia has intercountry agreements facilitating international adoptions allows same-sex couples to apply (AIHW, 2013). Furthermore, same-sex couples are not eligible to adopt children in all jurisdictions in Australia. The Australian Capital Territory (Adoption Act 1993, s 14), New South Wales (Adoption Act 2000, ss 23, 28), Tasmania (Adoption Act 1988, s 20) and Western Australia (Adoption Act 1994, s 39) have legislated so that same-sex couples are eligible to adopt. In all other states, same-sex couples are ineligible to adopt children.
Throughout Australia, single persons are eligible to adopt children, and same-sex couples are eligible to apply to become foster parents. The nonsensical nature of the legislation in jurisdictions where same-sex couples are ineligible to adopt children has been demonstrated in the Victorian decision of AB v Victorian Equal Opportunity and Human Rights Commission and Department of Human Services (2010). A same-sex couple had been fostering an 11-year-old boy for some years. As the couple was ineligible to adopt the child as a couple, they decided that one of the couple would apply to adopt him as a single person. The court found that, notwithstanding the couples' ineligibility to adopt, an order could be made for one of the parties to adopt the child as an individual. The desired result was only achieved through a loophole in the Victorian adoption legislation - the fact that the legislation uses the wording “one person" rather than “single person" (Sifris & Gerber, 2011). The outcome in this case demonstrates the problematic nature of the legislation prohibiting same-sex couples from adopting. Nevertheless, given the small number of children available for adoption, and as same-sex adoption is not legal throughout Australia, such couples must look towards other options to achieve legal parentage.
One of the ways for same-sex couples to conceive children is, in the words of Kay J in ND v BM (2003: ), in the “usual and customary manner", through heterosexual intercourse. Children in same-sex families conceived through heterosexual intercourse fall into two categories. The first is analogous to the heterosexual blended or step-family unit. This occurs when, on the breakdown of a heterosexual relationship, one of the parties enters into a same-sex relationship and the children reside within that household. The second is where same-sex couples elect to use intercourse as a practical means of achieving conception.
When a child is conceived through sexual intercourse, the law does not examine the intentions of the parties as to the status of the donor; the biological position prevails (ND v BM (2003)). Inevitably, DNA testing will verify that the male who provided the semen is the biological father and the birth mother is the mother of the child. This, then, will be their status at law; the co-parent in a lesbian relationship will not be legally recognised. The birth mother and the male participant will attract all the rights and obligations of legal parentage, including the fiscal responsibilities that this status brings. This will be the case notwithstanding that an agreement may have been reached between the parties to the contrary, whereby the male participant is to be regarded as no more than a biological progenitor with no rights or obligations towards the child. Thus, as incongruous as it seems, the mode of conception rather than the intention of the parties determines the legal parentage of the child (Sifris, 2005).
Assisted conception procedures
Legislation relating to assisted conception procedures
To date, four states have introduced legislation regulating access to assisted conception procedures:
- The New South Wales Assisted Reproductive Technology Act 2007 permits all women, regardless of marital status, to access assisted conception procedures.
- In South Australia, the Assisted Reproductive Treatment Act 1988 s 9(1)(c) only permits women to access assisted conception procedures if they “appear to be infertile". Consequently, single women and lesbian couples who are not medically infertile are excluded.
- In Victoria,the Assisted Reproductive Treatment Act 2008 allows single women and lesbian couples to access assisted conception procedures.
- In Western Australia, the Human Reproductive Technology Act 1991 allows all women, irrespective of sexuality or marital status, to access donor insemination; however, only women “who are unable to conceive a child due to medical reasons" may access IVF. In addition, if a woman wishes to be treated as part of a couple, then that couple must be heterosexual (s 23).
Self-regulation, accreditation with the Fertility Society of Australia and compliance with the National Health and Medical Research Council's Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2007) govern access to assisted conception procedures in other jurisdictions.
Recognition of parentage when using assisted conception procedures
The use of donor insemination harks back to the 1700s and it is the most basic and technologically simple form of assisted conception procedure. However, the advent of highly technological assisted conception procedures, in particular IVF, highlighted the inability of the common law to recognise functional as opposed to biological parentage. Commencing in the 1980s, legislation was introduced at the federal, state and territory levels that recognised non-biological parents in heterosexual couples as the legal parents of children born as a result of assisted conception procedures, at the expense of the donors of the gametes.
Recognising non-birth mothers in lesbian relationships
Following persistent calls to provide equality for same-sex couples, and commencing with the territories and Western Australia in the early 2000s, all states and territories throughout Australia have passed legislation recognising non-birth mothers in lesbian relationships as the legal parents of children conceived during the course of the relationship. The relevant Acts in each jurisdiction are:
- 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.
In this way, a female de facto partner of a woman who consents to an assisted conception procedure is deemed under state and territory laws to be the parent of the resultant child. The logical corollary of recognising the social parent as a legal parent is that pursuant to state and territory legislation, the donor of sperm is regarded as having no legal status in respect of the child. Thus, in AA v Registrar of Births, Deaths and Marriages and BB (2011)the District Court of New South Wales ordered that the name of the donor be removed from the birth certificate and replaced with that of the former female partner of the biological mother.
The federal Family Law Act
In 2008, s 60H(1) of the federal Family Law Act 1975 was amended to recognise both members of a lesbian couple as the parents of a child born as result of an assisted conception procedure. The section applies where at the time of conception the parties were living in a de facto relationship (heterosexual couples may be married). In addition, either both parties in the couple must consent to the procedure or the non-biological mother must be recognised as a parent under state or territory legislation (s 60H(1)(b) FLA, and Family Law Regulations 1984: reg 12C). One of the main issues currently confronting the Family Courts is the determination of whether the parties were in a genuine de facto relationship at the time of conception (Keaton v Aldridge 2009).
The scope of s 60H is limited to a child having two parents and thus does not cover situations where parties may agree that the child has three or even four parents. Judicial debate has emerged as to whether s 60H(1) expands the meaning of the word “parent" for the purposes of the FLA to include the donor of semen (Brown J Re Mark 2004) or whether it is an exhaustive definition of a parent and thus cannot include a donor of semen, notwithstanding the parties' intentions to the contrary (Guest J Re Patrick 2002). This issue remains unresolved but the expanded interpretation of s 60H has recently received further approval (Cronin J Groth v Banks 2013).
A similar scenario may arise where a lesbian couple and a gay male couple choose to co-parent their child. In Wilson v Roberts (2010) a lesbian couple elected to conceive a child using semen from a known donor who was also in a same-sex relationship. A dispute arose as to the level of involvement of the men in the child's life. The men claimed that there was an agreement that they would have a significant role in the child's life, which the woman denied. Justice Dessau of the Family Court of Australia decided that in accordance with s 60H(1) of the FLA, the two women were the parents of the child, while neither of the men was considered a parent. However, parenting orders were made for the men to spend specified time with the child. These unresolved arguments relating to the status of a known donor have spilled over into the area of surrogacy arrangements, making an already complex area of the law more complicated.
“Surrogacy involves an arrangement whereby a woman (the surrogate mother) agrees with a couple or a single person (commonly referred to as a 'commissioning' couple/person or 'intended parent(s)') to carry a child and then to surrender the child to the couple/person on the child's birth" (Young et al., 2013, para. 7.28). Under these arrangements the birth mother may be paid (commercial surrogacy) or not paid (altruistic surrogacy). Ethical debates concerning the regulation of surrogacy arrangements continue to rage but are beyond the scope of this chapter.
Surrogacy arrangements have added to the diversity in family structures and created unique problems for the courts. A surrogate mother may wish to remain a significant part of a child's life, just as may those who have donated semen or ova. The limited opportunities for couples to utilise altruistic surrogacy arrangements means that many couples - both heterosexual and same-sex - seek the services of commercial surrogates to achieve parentage. Informal surveys indicate that Australian couples are increasingly crossing borders and turning to international surrogates to fulfil their dreams of raising a family (Whitelaw, 2012). Given the biological necessity of having female gametes to conceive a child and a female body to gestate a child, surrogacy arrangements represent a particularly attractive and viable option for gay male couples to achieve parentage.
The legal status of surrogacy arrangements
All jurisdictions with the exception of the Northern Territory (where surrogacy arrangements are not legislatively regulated but are indirectly regulated by the National Health and Medical Research Council's (2007) ethical guidelines) have passed legislation allowing parties to enter into altruistic surrogacy arrangements. However, these agreements are unenforceable. Consequently, a birth mother is not obligated to surrender her child.
Central to all these legislative schemes is the ability to sever the legal relationship between the surrogate and the child. As such, pursuant to the various state legislative schemes, the state courts may make orders transferring legal parentage from the surrogate mother (and her married or de facto partner if she has one) to the commissioning parent(s).
Given the scarcity of altruistic surrogacy arrangements, it is unsurprising that there have not been a deluge of parentage applications coming before the courts. However, in 2010 the Queensland District Court made a parentage order in favour of a gay male couple (BLH and HM v SJW and MW 2010). Moreover, in 2012 when making orders in the New South Wales Supreme Court transferring parentage from a surrogate to a gay male couple, Brereton J commented, “this is the first application under the Act of which I am aware in which the intended parents are a same sex couple" (Application of MM and KF re FM 2012: ).1 Thus, gay male couples are joining the ranks of couples becoming legal parents through the use of altruistic surrogacy arrangements.
Existing state legislative provisions
The existing legislation in the states and territories is:
- Parentage Act 2004 (ACT);
- Surrogacy Act 2010 (NSW);
- Surrogacy Act 2010 (Qld);
- Family Relationships Act 1975 (SA), Births Deaths and Marriages Registration Act 1996 (SA) and Assisted Reproductive Treatment Act 1988 (SA), all of which were amended by the Statutes Amendment (Surrogacy) Act 2009 (SA);
- Surrogacy Act 2012 (Tas.);
- Assisted Reproductive Treatment Act 2008 (Vic.) and Status of Children Act 1974 (Vic.); and
- Surrogacy Act 2008 (WA).
In all Australian jurisdictions, commercial surrogacy is prohibited. In three jurisdictions (the ACT Parentage Act 2004 s 45; NSW Surrogacy Act 2010 s 11; and Queensland Surrogacy Act 2010 s 54), extraterritorial prohibitions are placed on commercial surrogacy arrangements, making entering into an overseas commercial surrogacy agreement an offence.
There are significant differences between the various state and territory legislative regimes, each with their own frustrations and quirks (Millbank, 2011). The eligibility criteria of the commissioning parents are reflective of these inconsistencies and, depending on the legislation, must be:
- a couple rather than an individual in the ACT (Parentage Act 2004 s 24(c))and South Australia (Family Relationships Act 1975 s 10HA(2)(a)ii);
- married or in a heterosexual de facto relationship for not less than three years in South Australia (Family Relationships Act 1975 s 10HA(2)(b)iii); and
- not be a male individual or couple in Western Australia (Surrogacy Act 2008 s 19(1)(b)(2)).
Surrogacy arrangements and the Family Law Act
In 2008, s 60HB was inserted into the FLA to provide that where a state or territory court makes an order transferring parentage from the surrogate to the commissioning parent(s), then for the purposes of the FLA the child is a child of those persons. The conventional interpretation of this legislation has been that as it expressly refers to state and territory legislation, it is limited to altruistic surrogacy arrangements entered into in Australia. It does not apply to international commercial surrogacy arrangements. Whether it applies to altruistic overseas surrogacy arrangements depends, it would seem, on whether a declaration of parentage has been made in the overseas jurisdiction where the arrangements were concluded and whether that country is considered a prescribed overseas jurisdiction pursuant to the Family Law Regulations 1984 (Cth) (Carlton and Bissett and Another 2013: 23). In those instances where the Family Courts do not recognise these arrangements, such children may be left in legal limbo and the functional parents must apply to the Family Courts for parenting orders (ss 61D, 65C(c) and 61DA FLA) (Keyes, 2012).
Conundrum for the family courts
Despite the extensive new legislation introduced, different approaches have emerged in the Family Courts in the interpretation of the legislation and its application to international commercial surrogacy arrangements, as exemplified in the cases of Dudley v Chedi (2011) and Dennis v Pradchaphet (2011). These cases involved the same heterosexual Queensland couple who, through international surrogacy arrangements, had three children born on the same day to two different mothers. The three children were conceived using Mr D.'s semen and ova from an anonymous donor.2 The commissioning couple brought two separate applications for parenting orders.
In Dennis v Pradchaphet, Stevenson J held that the biological parent Mr D. was a parent of the child under the FLA. However, in Dudley v Chedi, Watts J declined to make such a declaration. According to his Honour, s 60HB would not be enlivened in circumstances where the parties had entered into an illegal surrogacy arrangement.3 However, Watts J went further and referred the papers to the Director of Public Prosecutions for the consideration of the prosecution of the applicants.
The debate surrounding the parameters of the FLA and the scope of the provisions relating to parentage have further intensified. Recently, in Gough v Kaur (2012), a heterosexual couple entered into a commercial surrogacy arrangement in Thailand. Notwithstanding that DNA testing indicated that the applicant husband was the biological father of the child, MacMillan J was of the opinion (relying on s 60H(1) of the FLA) that he could not be regarded as a parent under the FLA. However, in Ellison v Karnchanit (2012), Ryan J adopted a different approach. Her Honour concluded that where parties had entered into an international surrogacy arrangement and the surrogate was single, the provisions in the FLA relating to the parentage of children born as a result of assisted conception procedures (s 60H) as well as those specifically designed for children born under surrogacy arrangements (s 60HB) do not apply. However, relying on the interests of the child, Ryan J made an order declaring the applicant biological father the parent of the child (s 69VA) (see also Carlton and Bissett and Another  in relation to international altruistic surrogacy arrangements). This divergence of opinion was noted by Phipps FM, who commented, “If I was to proceed with this case, I would be faced with conflicting decisions by Family Court of Australia judges" (Schone and Schone and Anor, 2012: ).
Crisford J of the Family Court of Western Australia approved Ryan J's decision in Ellison. This case concerned a successful application for a proposed step-parent adoption order by a non-birth father of a pair of twins born as a result of an international surrogacy arrangement. The non-birth father in a same-sex relationship intended to apply in his capacity as a step-parent to adopt the children. In order for the non-birth father to be considered a step-parent, the biological father would have to be considered as a legal parent (Blake and Anor 2013). Ryan J has since recanted from her position in Ellison v Karnchanit, recognising the relevance of state law and the FLA in determining the parentage of children born under international surrogacy arrangements (Mason and Mason and Anor 2013).
In response to these issues in the Family Courts, in June 2012 the then Commonwealth Attorney-General charged the Family Law Council with examining the legal issues surrounding family formation and surrogacy in the FLA. Hopefully this report will place surrogacy arrangements firmly on the legislative agenda and meaningful legislative change will follow. Central to the legislative and jurisprudential quagmire that has emerged in this area is the lack of uniformity between the state legislative systems and their interaction with the federal legislation. Clearly, the ultimate solution is for the states to refer power to the Commonwealth to legislate in this area. If this is not possible, then at the very least a two-pronged approach needs to be adopted:
- uniform legislation must be passed by all states and territories; and
- the parameters of the federal legislation regarding the legal recognition of the donor as a parent of a child conceived through assisted conception procedures, including surrogacy arrangements, must be clarified.
The globalisation of the modern surrogacy industry means “the law must make a choice: should it enforce public policy to discourage others, or should it relax the rules to prioritise the welfare of children born unknowingly into such a minefield" (Gamble, 2012, p. 28). In Australia this remains to be determined.
Same-sex families are not homogenous and may present in a number of non-traditional family types, including a single-parent family; a duplex model, comprising two mothers or two fathers; and a tripartite model, which may include two mothers and a donor, or two fathers and a donor/gestational mother. Lesbian and gay male couples may also elect to “poly-parent" so that a child may have two mothers and two fathers (Zanghellini, 2009, p. 151). In all instances, due to biological necessity, a donor of either ova or semen must be used. The donor may be involved with these families to varying degrees, ranging from being a biological progenitor, uninvolved donor, or uncle/aunt, to a fully fledged father or mother. Advances in assisted conception procedures have turned the impossible into reality - same-sex couples are becoming parents, and biological and social parenting is being fragmented in numerous ways.
This chapter has demonstrated that over the past decade Australian society has witnessed a major shift in family law. It has moved from a legal system based on a heterosexual paradigm, to one that to a large extent incorporates and recognises same-sex couples and their children. While these changes are laudable, the task is incomplete and there remains much to be done. The Australian family law system remains mired in a two-parent model of legal parentage, a paradigm that does not always reflect the reality and diversity of same-sex families.
To this end, three-parent and four-parent families must be brought under the protective umbrella of the law. To better safeguard children's interests, legislation must not only extend to the recognition of diverse family forms, but also encompass the capacity and flexibility to regulate and accommodate these complex relationships on breakdown. As we move through the second decade of the 21st century, embracing diverse family forms that go beyond the two-parent model is one of the most significant challenges confronting Australian family law, but one that needs to be faced.
- Australian Bureau of Statistics. (2012). Same-sex couple families. In Australian Bureau of Statistics, Reflecting a nation: Stories from the 2011 Census (Cat. No. 2071.0). Canberra: ABS. Retrieved from <www.abs.gov.au/ausstats/abs@.nsf/Lookup/2071.0main+features852012-2013>.
- Australian Institute of Health and Welfare. (2013). Adoptions Australia 2012-13 .Canberra: AIHW.
- Gamble, N. (2012). The response of the United Kingdom surrogacy law to the global surrogacy industry. Family Law Review, 3(1),28-29.
- Keyes, M. (2012). Cross-border surrogacy agreements. Australian Journal of Family Law, 26(1),28-50.
- McNair, R., & Thomacos, N. (2005). Not yet equal: Report of the VGLRL Same Sex Relationship Survey 2005. Fitzroy, Vic.: Victorian Gay and Lesbian Rights Lobby with the assistance of Gay and Lesbian Health Victoria.
- Millbank, J. (2011). The new surrogacy parentage laws in Australia: Cautious regulation or “25 Brick Walls"? Melbourne University Law Review, 35(1),165-207.
- National Health and Medical Research Council. (2007). Ethical guidelines on the use of assisted reproductive technology in clinical practice and research. Canberra: National Health and Medical Research Council.
- Sifris, A. (2005). Known semen donors: To be or not to be a parent. Journal of Law and Medicine, 13(2),230-244.
- Sifris, A., & Gerber, P. (2011). Victorian Court circumvents prohibition on adoption by same-sex couple. Australian Journal of Family Law, 35(1), 275-283.
- Victorian Gay and Lesbian Rights Lobby. (2001). Everyday experiments: Report of a survey into same-sex domestic partnerships in Victoria. Fitzroy, Vic.: Victorian Gay and Lesbian Rights Lobby.
- Whitelaw, A. (2012, 3 June). Buy baby: Overseas surrogacy births soar. Sunday Age.
- Young, L., Monahan G., Sifris A., & Carrol, R. (2013). Family law in Australia (8th ed.). Sydney: LexisNexis Butterworths.
- Zanghellini, A. (2009). Who is entitled to parental responsibility? Biology, caregiving intention and the Family Law Act 1975 (Cth): A jurisprudential feminist analysis. Monash University Law Review, 35(1),147-182.
1 In both these cases, the surrogacy arrangements had been entered into before altruistic surrogacy became legal in Queensland and New South Wales.
2 “Mr D." is used to signify both Mr Dudley and Mr Dennis, as they are the same person.
3 At the time the applications were brought, all surrogacy arrangements were illegal in Queensland.