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SAME SEX FAMILY LAW

Same Sex Legal Parentage & Donor Rights

Are you a legal parent?

The concept of being a parent encompasses various meanings, and while you may fulfill the day-to-day role in your child’s life, legal parentage can differ. Legal parent status is determined by different circumstances in same sex relationships:

1. Biological Parenthood (Sexual Intercourse)

Legal parents are the biological mother and father, irrespective of their intentions at the time of conception.

2. Assisted Reproduction (IVF, Donor Insemination)

The birth mother is the deemed legal parent, and her de facto partner, if consenting to the conception, is recognized as the ‘other intended parent.’ Home inseminations follow a similar principle, with the de facto partner considered the ‘other intended parent’ unless evidence shows non-consent. Sperm donors do not automatically gain legal parent recognition; however, they may apply to the Family Court for legal parentage declaration or seek orders for visitation.

For many lesbians, conception often involves IVF or insemination at a fertility clinic. In some cases, known donors may prefer home insemination for its personal and natural feel. Consent from both partners to the insemination procedure is crucial for legal parent status. If in a de facto relationship, consent is presumed but can be refuted with evidence. Retrospectively, legislative changes in 2008 granted legal rights to the birth mother’s partner in existing lesbian families, a contrast to the prior lack of legal recognition.

3. Adoption

Through legal adoption, adoptive parents assume legal parenthood, while relinquishing parents lose their legal parental status.

4. Altruistic Surrogacy

In altruistic surrogacy, legal parentage transfers from the birth mother (and possibly her partner) to the intended parents.

Parental Responsibility

Parental responsibility comes into play once you’re acknowledged as a legal parent, encompassing the authority and duty to make crucial decisions regarding the child’s well-being and care, spanning education, religion, living arrangements, overseas travel, and health. Initially, legal parents, including you and your partner, share equal shared parental responsibility, necessitating joint decisions on major matters affecting the child. This joint responsibility typically persists unless mitigating factors such as family violence or mental health issues lead to a different arrangement.

The court, particularly in the context of separation, weighs the child’s benefit in maintaining a meaningful relationship with legal parents or even the donor, irrespective of biological ties, when determining parental responsibility. In unique cases, the court may assign parental responsibility to a non-legal parent, like a grandparent or another relative, if a legal parent is unable to fulfill caregiving or decision-making roles, or in instances of fostering. Interestingly, being a biological parent is not a prerequisite for being listed on a child’s birth certificate.

Various reproductive procedures, whether IVF, fertility clinic insemination, or home insemination, can result in legal parentage, recognizing the non-birth mother as the legal parent in de facto relationships. Each Australian state and territory has distinct legislation recognising non-birth mothers in lesbian relationships as legal parents. The Federal Circuit and Family Court, guided by the paramount concern for the child’s best interests, presumes that fostering a meaningful relationship with both legal parents is generally in the child’s best interest.

Notably, the Federal Circuit and Family Court entertains applications for parental responsibility not only from biological parents but also from non-biological parents or anyone genuinely invested in the child’s care, welfare, and development, such as known donors, grandparents, aunties, uncles, etc.

How many parents can there be?

Navigating the landscape of parenthood becomes intricate for single lesbians or lesbian couples, especially when children are conceived and raised in co-parenting arrangements involving not just one or two parents, but sometimes three or four individuals (including the birth mother, her partner, the donor dad, and his partner). The current legal framework recognizes only two legal parents, leaving additional parents with limited or no legal standing. Consequently, these supplementary parents lack the legal authority to participate in decisions related to the child’s care and well-being, despite the intentions set at the time of conception in co-parenting scenarios with known donors.

Potential avenues exist for seeking recognition or orders through Family Court applications, whether or not the legal parents provide consent. For instance, a known donor could initiate an application to the Family Court to secure rights such as spending time with the child or being consulted on decision-making. A recent Family Court case set a precedent by granting two lesbian parents and two men (the donor and his partner) the opportunity to be heard in an application for parenting orders. The court, in this instance, bestowed parental responsibility upon the lesbian parents while facilitating regular visitation time for the donor dad and his partner with the child.

Known Donors

A known donor might possess certain rights and could be granted parental responsibility concerning a child.

Women considering a known donor should be mindful of recent cases where known donors have successfully sought and obtained legal rights to a child. This introduces added complexity to the decision of using a known donor. For those contemplating this option, seeking advice from a family law solicitor well-versed in this area is advisable.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.