In a recent Queensland case, both members of a same sex couple have been recorded on their two children’s birth certificates as parents of the children while the name of the children’s biological father, a known sperm donor, was removed from the children’s birth certificates.
In this particular case, the two children were born to a same sex couple as a result of artificial insemination.
The children were born in 2004 and 2006, prior to legislative changes in 2010 which enabled both members of a same sex couple in Queensland to be recorded as “mother” and “parent” on a child’s birth certificate.
Prior to these legislative changes, the mother’s same sex partner could not be recorded as a parent on the children’s birth certificate. The mother had recorded the children’s biological father, a sperm donor, as a parent on the birth certificates as she stated that she had been informed by Centrelink that she would otherwise be deemed a single parent and her social security benefits would be affected accordingly.
Once the Court decided that both the mother and her same sex partner were the “parents” of the children under the Status of Children Act 1978 (Qld), the Court considered whether the public record should be amended to correct the children’s birth certificates.
The Court agreed that this should occur and an order was made under the Births, Deaths and Marriages Registration Act 2003 (Qld) to correct the children’s birth certificates, referring to the mother’s same sex partner as a “parent” and removing the sperm donor’s name from the certificate.
Although the legislative changes enabling both members of the same sex couple occurred in 2010, this appears to have been one of the first cases in Queensland where the Court has affirmed a same sex couple’s right to both be recorded as “parents” on their children’s birth certificates. While the children were born prior to the enactment of these changes, the changes are retrospective, enabling the correction of the children’s birth certificates in this instance.
There are likely to be many other instances where children are born in similar circumstances where same sex couples will be able to take advantage of these legislative changes to record their children’s legal parentage.
It should be noted, however, that regardless of who is recorded on a child’s birth certificate, under the Family Law Act 1975(Cth), it remains open to any person sufficiently concerned with the care, welfare or development of a child to make an application for parenting orders.
This means that a Court exercising jurisdiction under the Family Law Act 1975 (Cth) may make orders for a child to spend time with a sperm donor (and, therefore, a child’s biological father), even if they are not regarded as the child’s “parent” and not recorded as a parent on a child’s birth certificate, provided the Court considers this to be in the best interests of the child.
Steven and John (not their real names) won a highly publicised victory for gay dads in 2010 when an acrimonious battle in the Family Court ended with a judge ruling they were entitled to regular contact with the little boy.
But the court also gave permission for the boy’s lesbian mums to take him overseas and the women left Australia earlier this year.
Now Steven and John’s only contact with their three-year-old son is an occasional phone call.
“It’s been tough. He’s been relocated overseas and there is nothing we can do about it,” Steven said.
–Editor Comment: This is either a case of common sense to keep up with the times, or a recipe for disaster, but its already happening in the US and will sure to hit Australian shores in the not too distant future. What are your thoughts on such laws and their expected and unforeseen consequences?–
The bill by Sen. Mark Leno, D-San Francisco, would allow judges to recognize multiple parents in cases where children would be best served by several parental relationships. All parents would still have to meet existing standards for legal parenthood.
Leno has characterized the bill as a response to America’s evolving families. Married couples dropped below half of all American households for the first time in 2010, according to the Census Bureau.
A QUEENSLAND father has been banned from having any contact with his five-year-old daughter until she reaches 18 after the Family Court accepted that the child’s mother would “destroy” the relationship rather than agree to shared care.
In a decision that suggests the “shared care” law introduced by the Howard government was effectively dead, a full bench of the Family Court said “the mother would ignore any order for contact” and, as a result, it was pointless to order her to co-operate.
Shared care of children after divorce was a policy goal of the previous government, but the law is now being rolled back, with key changes to the Family Law Act (1975) passing through the Senate this week.
Under the old law, mothers were sent to prison or lost custody of children when they refused to allow them to have contact with their father. While this is still possible, the full bench of the court has now said that in some cases there is nothing it can do.
The full bench ruled on the matter after a father, known as Mr Summerby, appealed against a 90-page judgment by a Brisbane federal magistrate, Keith Wilson, which effectively ended his relationship with his daughter.
Mr Wilson agreed that the loss of the girl’s relationship with her father “would be distressful in the short term and may also be emotionally damaging to her in the long term”.
The woman took the NSW Registry of Births, Deaths and Marriages, and biological father, to court in May to have his name replaced with her name in the document.
The female child was born in 2001 and the women split in 2006, although they continued to share parental responsibility.
The man also played a role in the child’s life.
NSW District Court Judge Stephen Walmsley today ruled in her favour, but expressed sympathy for the biological father.
By Order of the District Court of New South Wales, we have been required to anonymise the names and identities of the persons involved in this case.
A man was so excited about the impending birth of his child 10 years ago he discussed building a home in the Blue Mountains for himself and the lesbian couple who had used his donated sperm to conceive.
The man, who can only be known by court order as BB, said they agreed he should be involved in his daughter’s life but exactly how was never decided.
After answering the couple’s advertisment in a magazine, BB said he provided sperm to the birth mother, paid $5000 for her fertility treatments at an Eastern suburbs clinic and paid for the midwife who managed the home birth of their daughter in 2001.
Ten years on, after a tumultuous relationship among the three parents, the woman’s ex-partner, AA, is taking the NSW Registry of Births, Deaths and Marriages and BB to court to have his name removed from the girl’s birth certificate.
It is the first case of its kind since the introduction of a retrospective law in 2008 giving lesbian couples equal parenting responsibilities or legal status.
Of 94,354 birth registrations last year, 117 were for children born to same-sex parents.
BB said he had gone through “10 years of hell” and spent $50,000 on legal fees.
He has seen the girl for five hours a fortnight since she was one. He paid $150 a week support for her first year, though he was not obliged to, and paid one-third of her school fees for two years.
Last year he had allowed the birth mother, listed on the birth certificate as a funeral celebrant, to stay at his home for three months when she was unable to pay rent at her own home, he said.
The girl is the major beneficiary in his will and she calls his mother “Nan.”
He is devastated that he may be taken off the birth certificate.
“It’s a very depressing situation … the birth certificate is more than a bit of paper; it tells people who you are,” he said.
“No one seems to care about fathers these days.”
He said the three had been “all wrapped up in the moment of having the child” and were on good terms until the birth.
“I was going to build this great big house and live together … Everything was fine until the baby was born … they used me and they took my money and now they’ve got what they want, they really just didn’t want to know me.”
Both women have declined to comment.
A sperm donor does not have legal parenting responsibilities – and thus cannot make decisions about the child’s education or medical needs – even if a court grants visitation rights and he is on the birth certificate.
It is not possible under NSW law to have three parents with legal responsibilities. Had BB had sexual intercourse with the woman or married her, he would have gained that legal status.
Partners of lesbian mothers gained that right automatically with the introduction of the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008.
A family law expert, Paul Boers, said there was still confusion among gay and lesbian parents.
“I get lesbian couples concerned about whether the sperm donor might come back and seek parenting orders [to spend time with the child]. I tell them that he’s got to get over the hurdle of convincing a court that he’s concerned with the care, welfare and development of the child and he’s got an established relationship with the child.”
The case is set down for hearing on August 2.
Editorial Note: Response to below article - This article refers to the emerging trend in surrogate adoptions, and this will clearly continue to be a thorny ethical issueÂ in the nature of parenting, especially given the role of technology.
My concern with this article is not so much on the increasing role of non-biological gay parentage, which simply seems to be an extension of the step-parenting role.
I do however note the inconsistent legal application of the concept of “parental rights”, as evidenced in this judgment amongst others, when it comes to gay couples.
In Australia, the debate about Gay Adoption and Surrogacy has consistently focussed on the rights of gays, whereas typical Family Court matters apparently focus only on the best interests of the child.
It seems that where Human Rights on Parenting Matters are concerned, the Australian Courts have taken a decidedly hierarchical approach, quite possibly in unison with the trajectory originally determined by the very controversial and now discredited former Chief Justice of the Australian Family Court, Alastair Nicholson.
What seems to have developed is a type of pecking order, something along the lines of “Maslow’s Hierarchy of Family Rights”, or perhaps most adequately named “Nicholson’s Hierarchy of Family Rights”.
It is clear that in this pecking order, unborn children are at the lowest possible eb, with effectively zero rights up until about 21 weeks. Biological fathers are next in line, not as far down as embryos, but close to the bottom in any event.
Children themsleves are located somewhere in the middle, with their rights being insrcibed in law only, given that most family law cases seem to be motivated by the rights of others.
Gays and Surrogate Mothers seem to be secondary on this list, with Gays edging out Surrogates in most recent cases, especially when Surrogates have no biological connection to the child they are carrying.
Top of the list are biological mothers, who seem to have an unassailable position in Family Rights, with the universally assigned and arrely challenged rights in abortion, child-custody and parental responsibility matters.
Nicholson’s Hierarchy of Family Rights
9. Biological (gay and straight) Fathers
8. Step Mothers
7. Step Fathers
6. Adoptive Parents
4 Grand Parents
3. Surrogate Mothers
2. Gay (non-biological) Parents
1. Biological Mothers
A male GAY couple who paid a surrogate mother to carry twins has won a major case for parenting rights.
The case comes as overseas surrogacy booms, with 350 babies expected to be brought to Australia in 2011, compared to 50 babies just two years ago.
The Advertiser can reveal the parenting rights breakthrough hot on the heels of Nicole Kidman’s shock new surrogate baby revelation and the success of TV hit comedy Modern Family, which features a gay male couple with a baby girl.
The 20-month-old girls were born in Mumbai to an Indian woman who carried eggs from an anonymous donor impregnated with sperm from one of the Melbourne men.
The couple went to the Family Court seeking full parental status for the non-genetic male partner.
“In this case, the children do not have the benefit of a mother, but they have the good fortune of having two fathers,” Justice Paul Cronin found.
“As a matter of law, the word ‘parent’ tends to suggest some biological connection, but … biology does not really matter; it is all about parental responsibility.”
Lawyer Susan Buchanan, who represented the Melbourne men at the Family Court, said the ruling was important.
“Obviously, it’s a decision of public interest,” she said. “In the special circumstances of the case, it was the other parent who had no genetic link to the child, had no status in relation to the child – it … attributes to him full parental rights.”
Ms Buchanan said the decision could pave the way for other same-sex couples to win full parenting rights.
The decision was welcomed by surrogacy advocates.
“It’s a major step forward having that kind of judgment because it sets a precedent,” said Sam Everingham, of Australian Families Through Gestational Surrogacy.
“Any judge would have seen that this is a modern family made in a fairly unconventional way.”
But Catholic ethicist Nicholas Tonti-Filippini said surrogacy should be discouraged because a “committee of parents” – surrogate, donors and commissioning parents – confused children’s sense of identity.
The Family Court made “parenting orders” in three international surrogacy cases last year for two couples and one single man returning to Australia seeking citizenship for the newborns.
UK: A couple who lost custody of their baby daughter to her surrogate mother have been ordered to hand over more than $1000 a month maintenance for the child.
Today they spoke of their disgust that they would be forced to pay for someone else to raise the child they will never see.
The father, a leading chef, said the decision by the Child Support Agency â€˜added insult to injuryâ€™ and that he would appeal against it.
He and his wife, who had suffered six late-stage miscarriages including four sets of twins, used a surrogacy website to find a single mother of two on benefits who was willing to carry the baby they longed for.
They made an informal agreement to pay her $20,000 in expenses.
But halfway through the pregnancy she decided she wanted to keep the baby and a judge ordered that the woman, who was also the biological mother, could keep the child despite her earlier promise.
The couple, referred to as Mr and Mrs W to protect the childâ€™s identity, later relinquished their contact rights because they said it would be too difficult emotionally and that it was unfair for the baby to be split between two homes.
They allowed the surrogate, known as Miss N, to keep the $9000 they had already given to her.
But now Mr W must also pay over $1000 in child support every month as the biological father of the eight-month-old girl.
â€˜She cannot say, â€œI am keeping your child and now you must pay for itâ€,â€™ he said.
â€˜She has taken away our baby and now she is taking our money. To me, that is completely wrong. The CSA has made the decision as if we were a couple who had broken up, but our situation is unique.
â€˜We were not having a baby together, we had agreed for her to carry a child for myself and my wife.
â€˜I have written to Downing Street and my MP to call for a change in the law.â€™
Mr W said he now suspected it may have been Miss Nâ€™s plan all along to have a child with a wealthy man from whom she could claim child support over the next 18 years.
â€˜We should have seen the signs when she started asking for more than we had agreed. I donâ€™t think this was ever about her suddenly wanting to keep the baby, I think this was about getting an income.â€™
The chef said he would feel more comfortable paying for vouchers which could be redeemed on food and clothing than money which would not necessarily go towards the child.
â€˜If I need to pay $1000 a month because otherwise the child will be living in poverty then that is another reason why the baby should be with us. We would have given her all the things she needed.â€™
Mrs W, who is in her late 30s, had cancer of the womb in her 20s and complications from surgery meant it was difficult for her to carry a baby to full term.
After she and her husband contacted her via a website, Miss N agreed to be inseminated with Mr Wâ€™s sperm, meaning they were both the babyâ€™s biological parents.
But the relationship between the two parties turned sour after Miss N apparently began asking for more money.
Three months before the baby was due, she sent a text message to the couple to say she was keeping the child.
In July last year she gave birth to baby T and a bitter six-month custody battle ensued.
Miss N accused Mr W of being violent towards his wife, which the couple denied. They accused Miss N of neglecting her sons and of living in a filthy home.
In January, in a rare case, Miss N was awarded custody after a judge deemed it was in the childâ€™s best interests because there was a â€˜clear attachmentâ€™ between the mother and daughter.
At the time, Mr Justice Baker warned that the risks of entering into a surrogacy agreement were â€˜very considerableâ€™.
Surrogacy agreements are not legally binding in court, even with a formal written contract.
It is illegal to profit fromÂ surrogacy but â€˜reasonable expensesâ€™ are permitted.