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Transcript of Podcast – Sperm Donation World Episode 11
Lesbians and the Law
Between Adam Hooper (AH) and Nicole Evans (NE)
Date Transcribed – 21 August 2023
AH:
Welcome to Episode 11 on Sperm Donation World. I’m your host Adam Hooper. I think it’s finally, I think it’s time that we discussed the Law and today we have a special guest that we can have that ability to do that. So sit back and enjoy.
Welcome to the show Nicole Evans. Author of the book, “Lesbians and the Law”. Today we’ll talk about your book. How did the book start? What’s your background?
NE:
So I am the Principal Director of Nicole Evans Lawyers which is a boutique Law firm in the Sydney CBD. I specialise in Family and Criminal Law.
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A lot of us have seen movies like Kramer v Kramer and Marriage Story and there seems to then be a perception that the minute the Lawyers are called in, it turns ugly and very very messy, but is that always the case? Can there be situations were calling a Lawyer in is actually the process that can keep the peace rather than beginning the “I’ll see you in Court” style show downs.
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That’s an interesting point. It seems just in recent times that lesbians or same sex woman, or however they would like to identify, was never renowned in the 90s or the early naughties of having children. Do you reckon that was a massive deterrent not being able to have your partner’s name on the birth certificate now because of with gay marriage and essentially with we’re starting to move forward with progression that people feel more comfortable being able to start their family now free from discrimination?
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Was being same sex an inspiration for what made you want to become a Lawyer?
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Okay, so we’ll talk about some case studies. I think generally people think, we’ve had people with the idea before, save for single women in this case, that have the idea that if they take the donor that they meet off the internet through the clinic they are more protected than when they do it at home insemination. There was a case in Victoria, Groth v Banks [2013], where a single lady did decide to use a donor and the donor signed a form that was presented by the clinics that was waiving his rights to parenthood. Now in hindsight and from the determination of the Court, its being ruled that essentially this waiver form meant nothing and he was granted rights. How did that all happen and is some of these forms that the clinics are giving, is it more for comfort rather than practically working?
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Mmm, and it’s a shame really because it’s a double-edged sword, isn’t it? Because I mean you’re doing the right thing from your child essentially at the start to allow this relationship and then …
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Absolutely, yes.
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Yes.
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Mason and Parsons and even Anor.
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Have you been following that at all?
NE:
So I have. So the Parsons and Mason’s case is actually listed in the High Court on 16 April and this case centres around an 11 year old girl who has two mums and a donor that, so she’s grown up spending, sorry living with her two Mums and spending pretty regular time with the donor Dad and his partner. In this case, the two Mums decided that they wanted to move to New Zealand and Dad didn’t want them to do that because he felt that his time would then be quite limited with his daughter. The High Court now will decide whether the Mums are allowed to relocate to New Zealand. Under the Family Court relocation is a Parenting Order decision. The Court in making that decision has to consider the benefit of the child having a meaningful relationship with both parents and of course it’s about what is in the child’s best interests. So in this case the Court has to decide whether the donor Dad is considered her legal parent and that will then decide whether the two Mums can relocate to New Zealand. It’s a pretty big landmark case in Australia and will have pretty big repercussions in cases where known donors are involved, and it will clarify for the Family Court in how they determine a person to be a legal parent and what considerations they are to take into account in doing so. That will include the intention of the parties going into the process, how the child was conceived, circumstances around the birth, genetic parents and the role then that each person has played in the child’s life.
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Yes, it’s fascinating because I mean the Law, it’s a big money industry really, there’s lots of money thrown at it and to walk into a case where it’s going to be determined by, it’s not clear cut, you go speeding down the freeway doing a 110 you get flashed, you know you’re going to get a 10K fine over the limit, whereas in the Courts it’s still very cloudy, isn’t it? Like there’s so many different angles and people’s different stories that aren’t, there’s no set guideline of going, “Okay, this is what is going to be an outcome here”.
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Yes, I think that’s the difficulty for people going into the process is that trying to get clear on what could be the potential legal outcomes for them and the child. That’s why it’s really important to get legal advice before you go through the process. Another difficulty has been the difference in legislation between different states and then how that interacts with the Family Law Act which is Commonwealth Legislation. So in this case, it has gone to the High Court and it has become a constitutional issue which legislation should be applied, whether it’s the state legislation or the federal legislation.
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Here’s a hypothetical for you. These parties signed an agreement and the man, I think his name was Robert, if he signed in that agreement or put into that agreement that people, the families were to always remain local or not immigrate overseas, would that be able to have any influence in the Judge’s decision?
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Look, I think it would get taken into account in terms of the intention, but at the end of the day it wouldn’t be binding on the Judge to make a decision just based on that. At the end of the day it’s what is in the child’s best interests and children’s circumstances change as they get older and that’s what the Court will consider at the end of the day.
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Do you think there will be an evolution in contracts like where they may have a generic one or one that the Courts would sort of make binding?
NE:
Yes, look I think this case will set a precedent one way or the other and subject to which way that case goes, I think will determine where the Law moves in terms of Donor Agreements. If it moves in the direction of the donor not having rights then certainly, I think we’ll see more of a move towards some kind of standard agreement that may be given more consideration by the Courts, but the overriding factor for the Family Court at the end of the day is the child’s right and not the parent’s rights.
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And that’s the things as well, I think you sort of said in a way that you can’t make a contract over another person’s life.
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Yes, a parent can’t contract out of their responsibilities as a parent.
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Okay, so we’ve talked about our case studies, I think which is really interesting and I think it sort of gives people a little bit of an insight on how the Court legal system is and yes, it’s best to avoid everyone, if possible, it’s costly and …
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Absolutely, if you can stay out of the Court, that’s best for everyone.
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Exactly. Do you find there’s, I think that’s starting to become more and more popular is co-parenting, whether it would be two same sex women or two same sex men couples, or a single lady or a single gay man, or a single man and a single hetero… it doesn’t matter I guess about orientation there, are you finding is co-parenting starting to become more popular and the agreements I guess would have to be more heavily involved?
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Yes, definitely, in my experience I would say in most of the cases that I’m aware of are same sex couples using known donors as opposed to unknown donors.
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Yes, definitely, sorry, definitely clarifying in agreements and I try and do that with clients. Sit down and work out week to week what are your expectations of how much time the child would spend with the donor and how that actually looks day to day or week to week so that the expectations are clarified and certainly more, I think in my experience, more people are leaning towards the child having some kind of relationship with the donor and spending some level of time with them.
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Mmm, it’s fascinating because I think a lot of people now are listening to donor conceived people that are 20-30 years old and they’re speaking out on some of their issues, so people are now becoming more inclined to let the donor know but then at the same time as we sort of touched on it, it can open a bit of messiness start to creep in because of it.
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[end of interview]