Recognition of Lesbian and Gay Families in Australian Law — Part Two: Children

Jenni Millbank

doi:10.22145/flr.34.2.1

Recognition of Lesbian and Gay Families in Australian Law — Part Two: Children

Published online by Cambridge University Press: 24 January 2025

Jenni Millbank

Show author details

Jenni Millbank*: Affiliation:
University of Sydney

Article contents

Extract
Footnotes
References

Get access

Rights & Permissions

Extract

This article discusses the legal regulation of parenting in lesbian and gay families in Australia. This landscape of regulation includes laws that govern such families both before and after they are formed; that is, laws controlling access to potential family formation options in addition to laws that govern the status of parents and children in families that are formed through alternate means. There have been a number of important developments in these areas in recent years, including: challenges to laws that restrict access to fertility services; reforms to adoption laws in three jurisdictions; and deemed parental status for co-mothers in lesbian families formed through assisted reproduction in three jurisdictions. This article will detail how the new parental status reforms interrelate, including difficult questions regarding the recognition of this new parental status in other States and their interaction with federal law.

Type: Research Article
Information: Federal Law Review , Volume 34 , Issue 2 , June 2006 , pp. 205 - 259

DOI: https://doi.org/10.22145/flr.34.2.1 [Opens in a new window]
Copyright: Copyright © 2006 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

Thanks to Reg Graycar and Isabel Karpin for comments on an earlier draft, and to Melissa Gangemi and Aleardo Zanghellini for discussion of the issues in recent years. Thanks also to Melissa Gangemi and Tiffany Hambley for their invaluable research assistance. The information in this paper is up to date as at 11 August 2006. The first paper in this research project, focusing on couple-based rights, was published in the previous issue of the Federal Law Review.

References

¹ This literature, and some small scale Australian data, is reviewed in Jenni, Millbank, ‘From Here to Maternity: A Review of the Research on Lesbian and Gay Families’ (2003) 38 Australian Journal of Social Issues 541Google Scholar. For more recent research concerning older children see: Jennifer, Wainright, Stephen, Russell and Charlotte, Patterson, ‘Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents’ (2004) 75 Child Development 1886Google Scholar. For a focus on alternate forms of reproduction rather than the sexuality of parents, see: Ruth McNair, Outcomes for Children Born of ART in a Diverse Range of Families, Victorian Law Reform Commission Occasional Paper (2004).

² Ruth, McNair, ‘From GP to Political Activist for the New Family’ in Heather, Grace Jones and Maggie, Kirkman (eds), Sperm Wars: The Rights and Wrongs of Reproduction (2005) 227, 229Google Scholar.

³ Australian Bureau of Statistics, Year Book Australia 2005: Population — Same-Sex Couple Families (2005)Google Scholar.

⁴ Marian, Pitts, Anthony, Smith, Anne, Mitchell, Sunil, Patel, Private Lives: A Report on the Health and Wellbeing of GLBTI Australians (2006)Google Scholar. Surveys of readers of a Sydney-based magazine in 1996 and 1999 found around 20 per cent of lesbians respondents had children; a figure in accord with census data: see Lesbians on the Loose, March 1996 (reporting on the 1996 survey, which had 732 respondents); Significant Others, ‘Australian Lesbians Get Used to Being Called Mum’ (Press Release, 30 March 2000) (reporting on the 1999 survey, with 386 respondents). In a 2001 Victorian survey of 670 lesbians, gay men, bisexual and transgender people, 21 per cent of respondents reported that there were children in their family: see Victorian, Gay and Lesbian Rights Lobby, Everyday Experiments: Report of a Survey into Same-sex Domestic Partnerships in Victoria (2001), 13–14Google Scholar. A 2005 follow-up survey found 18.6 per cent of respondents had children: see Ruth, McNair and Nikos, Thomacos, Not Yet Equal: Report of the VGLRL Same Sex Relationships Survey 2005 (2005) 41Google Scholar. This latter report is limited by the fact that it does not indicate the respective figures for men and women, nor does it indicate whether the children reside with the couple or whether they were born into the relationship, or into previous relationships.

⁵ See Fiona, Tasker, ‘Lesbian Mothers, Gay Fathers, and Their Children: A Review’ (2005) 26 Journal of Development and Behavioral Pediatrics 224Google Scholar.

⁶ A study of the health care experiences of 92 lesbian and gay families involving 167 children found that 44 per cent of first-born children were conceived in previous heterosexual relationships, while 46 per cent were conceived through donor insemination: Katja, Mikhailovich, Sarah, Martin and Stephen, Lawton, ‘Lesbian and Gay Parents: Their Experiences of Children’s Health Care in Australia’ (2001) 6 International Journal of Sexuality and Gender Studies 181Google Scholar. The ‘Lesbian and Gay Families Project’ surveyed 136 women in Victoria and found that 52 per cent of current parents had children through previous heterosexual relationships, while 36 per cent were through donor insemination and 6 per cent through invitro fertilisation (‘IVF’): Ruth, McNair et al, ‘Lesbian Parenting: Issues, Strengths and Challenges’ (2002) 63 Family Matters 40Google Scholar. See also a survey of 84 mothers at the 2000 Sydney Lesbian Parenting Conference which found that 76 per cent had conceived through self-insemination: discussed in Millbank, ‘From Here to Maternity’, above n 1.

⁷ In one recent study among 43 lesbians who were trying to conceive, only 2 per cent used intercourse, while 44 per cent self-inseminated, 33 per cent used clinic-based insemination (and a further 2 per cent used both) while 13 per cent were using IVF: McNair et al, ‘Lesbian Parenting’, above n 6.

⁸ In ND v BM (2003) 31 Fam LR 22 (‘ND’), a lesbian couple had an express agreement with a man that he was to be a sperm donor with no legal rights or liabilities. The Family Court held that the fact that the pregnancy was achieved through sex rather than assisted conception meant that legal presumption of parental status applied, regardless of the intentions of all concerned to the contrary.

⁹ Although such differences have recently been reduced for families in Western Australia, the Northern Territory and the Australian Capital Territory (‘ACT’) as a result of amendments to the relevant ‘status of children’ legislation in those jurisdictions, discussed in detail in Part B.

¹⁰ See Adoption of Children Act 1964 (Qld) ss 12(1), 67.

¹¹ Adoption of Children Act 1994 (NT) ss 13(1)(a), 3. Note that partners in an Aboriginal customary marriage are also eligible to apply under s 13(1)(b).

¹² Adoption Act 1984 (Vic) s 11(1)(c) (2 years); Adoption Act 1994 (WA) s 39(e)(i) (3 years); Adoption Act 1993 (ACT) s 18(1)(b) (3 years); Adoption Act 1988 (Tas) s 20(1)(a) (3 years); Adoption Act 1988 (SA) s 12(1) (5 years); Adoption Act 2000 (NSW) s 28(4) (3 years).

¹³ Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA).

¹⁴ Adoption Act 1994 (WA) ss 38, 39(1)(e)(i).

¹⁵ Adoption Act 1994 (WA) s 40(2)(da).

¹⁶ See Western Australia, Parliamentary Debates, Legislative Assembly, 14 November 2001, 6969 (Jim McGinty, Attorney-General).

¹⁷ Email from Department of Community Development Western Australia to Jenni Millbank, 17 July 2006.

¹⁸ Parentage Act 2004 (ACT).

¹⁹ Adoption Act 1993 (ACT) s 18(1)(b).

²⁰ See, eg, David McLennan and Scott Hannaford, ‘Angry PM Guns for ACT Laws: Gay Adoption, Bill of Rights Under Threat’, The Canberra Times (Canberra), 9 March 2004; Michelle Grattan, ‘Gay Adoption Law to Stay’, The Age (Melbourne), 27 April 2004.

²¹ Adoption Act 2000 (NSW).

²² See NSW Department of Community Services, Review of the Adoption Act 2000, Issues Paper (2006). Although this is a routine five-yearly review, mandated by the Act itself, it is noteworthy that the review has called for public submissions, and that it included as an issue for consideration, ‘Ensuring eligibility criteria for the assessment and selection of adoptive parents reflect contemporary standards and focus on factors that determine parenting capacity’: at 4.

²³ Tasmania Law Reform Institute, Adoption by Same Sex Couples, Final Report No 2 (2003) 6 (recommendation 1).

²⁴ Relationships (Consequential Amendments) Act 2003 (Tas).

²⁵ VLRC, Assisted Reproductive Technology & Adoption, Position Paper Two: Parentage (2005) 51–2 (interim recommendations 26–7) (‘Position Paper 2’).

²⁶ Ibid.

²⁷ Adoption of Children Act 1964 (Qld) s 12(3)(c); Adoption Act 1984 (Vic) s 11(3); Adoption of Children Act 1994 (NT) s 14(1)(b); Adoption Act 1988 (Tas) s 20(4); Adoption Act 1988 (SA) s 12(3)(b).

²⁸ This is expressly stated in Adoption of Children Act 1964 (Qld) s 12(3)(b). It is also common practice: see VLRC, (‘Position Paper Two’), above n 25, [6.14].

²⁹ Adoption Act 1993 (ACT) s 18(3).

³⁰ Such additional and stringent requirements for single adoptive parents have declined slightly in legislation in recent years. Since 2000 NSW only requires that a single applicant be ‘of good repute and a fit and proper person to fulfil the responsibilities of a parent’: Adoption Act 2000 (NSW) s 27(1)(b). Western Australia has also dropped its earlier restrictions on single applicants.

³¹ Australian Institute of Health and Welfare, Adoptions Australia 2004–05 (2005) 18. In the preceding year 2 per cent of adoptions were to single applicants. See Australian Institute of Health and Welfare, Adoptions Australia 2003–04 (2004) 17.

³² VLRC, (‘Position Paper Two’), above n 25, 53 (recommendation 28).

³³ Adoption Act 1988 (Tas) s 24.

³⁴ Note there has only been adoption by an individual applicant in the last five years in Tasmania: email from Tasmanian Department of Health and Human Services to Jenni Millbank, 19 September 2005.

³⁵ In that year, 15 per cent of adoptions were of a known child (such as step-parent and carer adoptions), while 85 per cent were placement adoptions. Of placement adoptions, 65 were within Australia and 434 were from children outside Australia: see Australian Institute of Health and Welfare, Adoptions Australia 2004–05, above n 31, 3. In Victoria in 2003–04 there were only 10 infant adoptions with 64 adoptions or permanent care placements of children with special needs, while there were 100 inter-country adoptions over the same period: see VLRC, (‘Position Paper Two’), above n 25, [6.4], [6.6], [6.36].

³⁶ Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, opened for signature 29 May 1993, [1998] ATS 21 (entered into force 1 May 1995) (‘Hague Adoption Convention’). Alternately if the sending country is not a party to the Hague Adoption Convention, it must satisfy a comparable bilateral arrangement, such as those Australia has with China (which ratified the Convention in January 2006), South Korea, Ethiopia and Thailand: see Australian Institute of Health and Welfare, Adoptions Australia 2004–05, above n 31, 11–12.

³⁷ For an overview see Bills Digest No 155 (2003–04) 9–10 (on the Marriage Legislation Amendment Bill 2004 (Cth)).

³⁸ VLRC, (‘Position Paper Two’), above n 25, [6.35]. See also Australian Institute of Health and Welfare, Adoptions Australia 2004–05, above n 31. Note that same-sex couples are eligible to adopt under South African law following the decision of the Constitutional Court in Du Toit v The Minister for Welfare and Population Development 2002 (10) BCLR 1006. However South Africa maintained a blanket prohibition on intercountry adoption of children. This ban was overturned following a Constitutional challenge: see Minister for Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713. South Africa has now ratified the Hague Adoption Convention, but has yet to pass legislation to enable overseas adoptions; it is expected that adoptions from South Africa will not occur until at least 2008: see Department for Families and Communities, Adoption & Family Information Service, ‘Intercountry Adoption News’ November 2005.

³⁹ The VLRC states that a single applicant may apply to adopt a child from China, Ethiopia, Hong Kong and the Philippines: see VLRC, (‘Position Paper Two’), above n 25, [6.35]. In NSW as at July 2006, the Department of Community Services (‘DOCS’) advises that the following sending countries will not allow single applicants to adopt under any circumstances: Chile, Korea, Sri Lanka, and Taiwan. Single applicants who are women will be considered by Ethiopia (although they must belong to a mainstream religion and have the written support of a religious leader, eg a priest) and Thailand (special needs children). Single applicants of either sex will be considered by Fiji (although waiting times are lengthy for all applicants who are not former nationals of Fiji), Hong Kong (not preferred), India (if an individual agency agrees, and only if 30–35 years old), Philippines (rarely, for special needs children, and no atheists are accepted), Lithuania (rarely, for special needs children), Colombia (some agencies for older and special needs children, one agency will consider women only, some will not consider any single applicant): see NSW DOCS, Adopting from Overseas: Intercountry Adoption <http://www.community.nsw.gov.au/html/adoption/want_intercountry.htm> at 17 July 2006. China is a major sending country, and does accept single applicants, although the waiting time in 2005 was three years. In 2006 the DOCS online information on China included the following information not previously present ‘No gay or lesbian applicants will be accepted’: NSW DOCS, Intercountry Adoption Program: China (23 March 2006).

⁴⁰ Email from Western Australian Department of Community Services to Jenni Millbank, 16 September 2005.

⁴¹ See Bills Digest, above n 37.

⁴² See Nick Butterly, ‘Gays Set to Lose Adoption Rights’, The Courier-Mail (Brisbane), 30 October 2004.

⁴³ I am mindful of the wide range of criticism of surrogacy as a practice involving gender, class and also racialised power imbalances. This section is included in recognition of the fact that the prohibition of surrogacy agreements is a distinct issue and one that may disproportionately affect the parenting aspirations of gay men. Thanks to Aleardo Zanghellini for drawing this point to my attention.

⁴⁴ For a more detailed analysis of surrogacy laws in Australia see: John Seymour and Sonia Magri, ART, Surrogacy and Legal Parentage: A Comparative Legislative Overview, VLRC Occasional Paper (2004) ch 3. See also Anita, Stuhmcke, ‘Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia’ (2004) 18 Australian Journal of Family Law 13Google Scholar.

⁴⁵ Parentage Act 2004 (ACT) ss 41, 40, 44. Note that this Act replaced the earlier Substitute Parent Agreement Act 1994 (ACT), which also prohibited commercial surrogacy but contained provision for altruistic surrogacy arrangements and for the commissioning parents to register as parents. On the earlier Act see Meg, Wallace, ‘Substitute Parent Agreements in the ACT’ (1994) 1 Canberra Law Review 148Google Scholar.

⁴⁶ Parentage Act 2004 (ACT) ss 43, 40.

⁴⁷ Surrogate Parenthood Act 1988 (Qld) s 3.

⁴⁸ Surrogacy Contracts Act 1993 (Tas) ss 4–7.

⁴⁹ Family Relationships Act 1975 (SA) s 10. Although South Australia draws a distinction between ‘procuration’ contracts and ‘surrogacy contracts’.

⁵⁰ Infertility Treatment Act 1995 (Vic) s 59.

⁵¹ Reproductive Technology (Clinical Practices) Act 1988 (SA) s 13(3)(b)(i); Infertility Treatment Act 1995 (Vic) s 8(3).

⁵² Infertility Treatment Act 1995 (Vic) s 7. See discussion in VLRC, Assisted Reproductive Technology & Adoption — Position Paper One: Access (2005) 27–9 (‘Position Paper One’).

⁵³ VLRC, Assisted Reproductive Technology & Adoption, Position Paper Three: Surrogacy (2006) 29 (interim recommendations 1–3) (‘Position Paper Three’).

⁵⁴ Note that the Assisted Reproductive Technology Bill 2003 (NSW) would prohibit commercial surrogacy and advertising for commercial surrogacy, as well as rendering surrogacy agreements void. The Bill is a ‘Consultation Draft Bill’ and it is not clear that it will be enacted in this or any other form. See NSW Department of Health, Assisted Reproductive Technology Bill 2003: Information Guide (2003).

⁵⁵ In 1999 a WA Parliamentary Select Committee recommended the introduction of surrogacy legislation to regulate non-commercial surrogacy and alter the legal status of parents, but none has so far been forthcoming. See the findings of the Legislative Assembly of Western Australia, Select Committee on the Human Reproductive Technology Act 1991 (1999).

⁵⁶ See Reproductive Technology Council of Western Australia, Frequently Asked Questions (2005) <http://www.rtc.org.au/faqs/index.html> at 14 July 2006.

⁵⁷ See Seymour and Magri, above n 44, [2.57–2.58].

⁵⁸ Note that the Reproductive Technology Council of WA, above n 56, states that ‘IVF surrogacy is carried out by some clinics in Canberra and Sydney’.

⁵⁹ Note that the current National Health and Medical Research Council (‘NHMRC’) guideline states that clinics must not facilitate commercial surrogacy (at [13.1]) and may only facilitate non-commercial surrogacy if ‘every effort’ has been made to ensure that the participants understand the ‘ethical, social and legal implications’ and the parties undertake counselling to consider ‘the social and psychosocial significance for the person born as a result of the arrangements, and for themselves’: NHMRC, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2004) [13.2].

⁶⁰ For provisions severing the parentage of ovum donors, see Status of Children Act 1996 (NSW) s 14(1), (3); Parentage Act 2004 (ACT) s 11(2), (3); Status of Children Act 1978 (Qld) s 17; Status of Children Act 1974 (Vic) s 10E; Artificial Conception Act 1985 (WA) s 5; Status of Children Act 1978 (NT) s 5E; Status of Children Act 1974 (Tas) s 10C(3), (4); Family Relationships Act 1975 (SA) s 10C. For provisions severing the parentage of sperm donors, see Status of Children Act 1996 (NSW) s 14(2); Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (Qld) s 18(1); Status of Children Act 1974 (Vic) s 10F(1); Artificial Conception Act 1985 (WA) s 7(2); Status of Children Act 1978 (NT) s 5F(1); Status of Children Act 1974 (Tas) s 10C(2); Family Relationships Act 1975 (SA) s 10E(2).

⁶¹ Status of Children Act 1996 (NSW) s 14(1), (2); Parentage Act 2004 (ACT) s 11(4), (5); Status of Children Act 1978 (Qld) ss 15(2), 16; Status of Children Act 1974 (Vic) ss 10C(2), 10D(2); Artificial Conception Act 1985 (WA) s 6; Status of Children Act 1978 (NT) s 5D; Status of Children Act 1974 (Tas) s 10C(1); Family Relationships Act 1975 (SA) s 10D.

⁶² Parentage Act 2004 (ACT) s 11(4); Artificial Conception Act 1985 (WA) s 6A; Status of Children Act 1978 (NT) s 5DA.

⁶³ See, eg, Re Births, Deaths and Marriages Registration Act 1997 (2000) 26 Fam LR 234, decided prior to the new surrogacy provisions in ACT law. In that case the fertilised embryo of Debra and Shane was borne by Sharon, the wife of Shane’s brother Brendan. All four intended that Debra and Shane were to be the child’s parents, and applied to the Supreme Court for a birth certificate recording this. The Court held that it was unable to do so, by virtue of the provisions of the Artificial Conception Act 1985 (ACT) (now repealed) severing the relationship of sperm and ovum donor and according it to birth mother and partner. Thus, Sharon and Brendan were recorded as the child’s parents.

⁶⁴ See, eg, PJ v Director General Department of Community Services [1999] NSWSC 340 for this conclusion regarding a surrogacy case where both commissioning parents were genetic parents but were held not to be legal parents due to the provisions of the Status of Children Act 1996 (NSW).

⁶⁵ See VLRC, (‘Position Paper Three’), above n 53, [5.10]. Note that the NSW DOCS opposed adoption applications arising out of surrogacy arrangements where the birth mother was the sister of the commissioning mother in the following cases: Re A and B (2000) 26 Fam LR 317 and Re D and E (2000) 26 Fam LR 310. The Court granted adoptions.

⁶⁶ Re Mark (2003) 31 Fam LR 162. See also Stuhmcke, above n 44.

⁶⁷ Brown J suggested that State presumptions of parental status following assisted conception may not necessarily follow through to the Family Law Act 1975 (Cth) provisions on parental responsibility such that a sperm donor could be a parent under the FLA. These observations lead to some uncertainty as to the breadth and uniformity of the parenting presumptions, however the remarks were in obiter only. For many reasons the discussion of parental status for children born through assisted reproduction in the judgment is very troublesome, and will be analysed in greater detail in Part B because of the broad impact that it could have on lesbian families.

⁶⁸ See Parentage Act 2004 (ACT) div 2.5, in particular s 24. These issues were not dealt with under the Substitute Parent Agreement Act 1994 (ACT).

⁶⁹ Parentage Act 2004 (ACT) ss 24, 26.

⁷⁰ The order would trigger a conclusive presumption of parentage under s 69S of the FLA.

⁷¹ An important proviso is that Ms S would have to be pregnant with a donor ovum rather than her own. That was in fact the case, but this scenario would be rare in Australia where there are almost no anonymous donor ova available and any commercial provision is prohibited. See, eg, Repromed, Donor Information: Guidelines for Donors and Recipients (2005) 5, 16–21 <http://www.repromed.com.au/article.php?articleID=77&content=4&page_num=0> at 14 July 2006.

⁷² Although all States and Territories set an age of consent for sex, and for instance the federal government reduces the price of oral contraceptives through listing them on the pharmaceutical benefit scheme since 1973: Amanda Biggs, The Pharmaceutical Benefits Scheme — An Overview (2002, updated 2003) Department of the Parliamentary Library <http://www.aph.gov.au/library/intguide/SP/pbs.htm> at 18 July 2006.

⁷³ See Erica, Haimes, ‘When Transgressions Become Transparent: Limiting Family Forms in Assisted Conception’ (2002) 9 Journal of Law and Medicine 438Google Scholar. In Victorian legislation, the interests of the child do not simply have to be taken into account but are said to be paramount, prompting the following criticism in Kerry, Petersen, ‘The Regulation of Assisted Reproductive Technology: A Comparative Study of Permissive and Prescriptive Laws and Policies’ (2002) 9 Journal of Law and Medicine 483, 495–6Google Scholar:

First, in real terms and at the time when access decisions about DI and IVF are being made, there is no live child. The gametes which may result in the conception of an embryo are either inside one of the aspiring parents or they are stored in a fridge. However, there is a human being who desires to have a child and it seems puzzling that the purported and speculative interest of eggs and sperm should take priority over the actual, verifiable interests of a living human being and, if appropriate, her live partner.

⁷⁴ See, eg, Helen Szoke, the Chief Executive Officer of the Infertility Treatment Authority in Victoria, arguing that (unlawfully discriminatory) legislation such as that in Victoria protects the public interest: ‘Nanny State or Responsible Government?’ (2002) 9 Journal of Law and Medicine 470Google Scholar. For a contrary view, using a traditional utlitiarian harm analysis, see Kristen, Walker, ‘Should There be Limits on Who May Access Assisted Reproductive Services?’ (2002) 6 Flinders Journal of Law Reform 67Google Scholar.

⁷⁵ For a good plain language overview see Canberra Fertility Centre, Patient Information Booklet (2005) <http://www.canberrafertilitycenter.com.au/images/pdfs/CFC_Info_Book_05.pdf> at 14 July 2006.

⁷⁶ For a thorough discussion of these debates see: Maurice Rickard, ‘Is it Medically Legitimate to Provide Assisted Reproductive Treatments to Fertile Lesbians and Single Women’ (2001) Parliament of Australia Research Paper 23. However note that he too assumes lesbians’ clinical fertility.

⁷⁷ See, eg, costing listed on the website of a major private provider in NSW and the ACT: Sydney IVF, Our Current Fees (2006) <http://www.sydneyivf.com/page.cfm?id=36&clinic=metro&num;fees> at 14 July 2006.

⁷⁸ Ibid. Medicare covers approximately 80 per cent of this cost at present.

⁷⁹ See McNair et al, ‘Lesbian Parenting’, above n 6. See also qualititative interview data with 20 women in the UK reported in Kathryn, Almack, ‘Seeking Sperm: Accounts of Lesbian Couples’ Reproductive Decision-Making and Understanding of the Needs of the Child’ (2006) 20 International Journal of Law, Policy and the Family 1Google Scholar.

⁸⁰ Note that although Australian jurisdictions are increasingly moving towards donor registers, this information becomes available only after the child reaches 18, and only if their parents inform them that they are donor-conceived.

⁸¹ RTAC also has its own Code of Practice. The Fertility Society of Australia, Reproductive Technology Accreditation Committee, Code of Practice for Centres Using Assisted Reproductive Technology (2002) made no reference to eligibility for treatment. The current 2005 RTAC Code of Practice is not publicly available. But note that the 2005 Code is reported to have made adherence to the 2004 NHMRC ART Guidelines mandatory: see Legislative Review Committee Reports, Part A (2005) 11.

⁸² See Fertility Society of Australia, About FSA — Introduction (2006) <http://www.fsa.au.com/about/> at 18 July 2006.

⁸³ See Don, Chalmers, ‘Professional Self-regulation and Guidelines in Assisted Reproduction’ (2002) 9 Journal of Law and Medicine 414Google Scholar for an overview of the regulatory landscape.

⁸⁴ NHMRC, Supplementary Note 4 (1982) [2].

⁸⁵ NHMRC, Ethical Guidelines Assisted Reproductive Technology (1996) [1.2].

⁸⁶ Ibid.

⁸⁷ NHMRC, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2004)Google Scholar.

⁸⁸ ‘In framing these guidelines, AHEC has recognised that the welfare of people who may be born as a result of the use of ART is paramount’: ibid [2.5].

The Council takes into account the following at [2.6]:

• ‘The autonomy and long-term welfare of individuals (both men and women) who take part in ART;

• The need for informed decision making; and

• The importance of an ethical framework for the use of gametes and embryos.’

Contrast VLRC, (‘Position Paper One’), above n 52, [2.27] proposing the following guiding principles for Victorian law:

• ‘the health and wellbeing of children born as a result of the use of ART must be given priority in decisions concerning the use of such technologies;

• at no time should the use of reproductive technologies be for the purpose of exploiting (in trade or otherwise) either the reproductive capabilities of men and women or the resulting children;

• all children born as a result of the use of donated gametes have a right to information about their genetic parents;

• the health and wellbeing of people undergoing ART procedures must be protected at all times; and

• people seeking to undergo assisted reproductive procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion.’

⁸⁹ McBain v Victoria (2000) 99 FCR 116; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.

⁹⁰ Pearce v South Australian Health Commission (1996) 66 SASR 486 (‘Pearce’); MW, DD, TA and AB v The Royal Women’s Hospital [1997] HREOCA 6 (‘MW’); McBain v Victoria (2000) 99 FCR 116.

⁹¹ JM v QFG [1997] QADT 5; QFG & GK v JM [1997] QSC 206; JM v QFG [2000] 1 Qd R 373.

⁹² NHMRC, Ethical Guidelines 2004, above n 87, 19, 24.

⁹³ See Diane, Sisley, ‘Discriminating Donors and the Victorian Equal Opportunity Commission’ in Heather, Grace Jones and Maggie, Kirkman (eds), Sperm Wars: The Rights and Wrongs of Reproduction (2005), 121Google Scholar.

⁹⁴ Where other sources are not referred to, much of the anecdotal information in this section is drawn from reports of women who attended consultations I conducted with lesbian and gay parents and prospective parents in 2002 and 2003: see Jenni, Millbank, And Then the Brides Changed Nappies (2003)Google Scholar.

⁹⁵ Infertility Treatment Act 1995 (Vic), Human Reproductive Technology Act 1991 (WA): Reproductive Technology (Clinical Practices) Act 1988 (SA).

⁹⁶ Note also that the VLRC may soon recommend open access: see VLRC, (‘Position Paper One’), above n 52. For an explanation of how self-regulation interacts with Victorian law: see HW, Gordon Baker, ‘Problems with the Regulation of Assisted Reproductive Technology: A Clinician’s Perspective’ (2002) 9 Journal of Law and Medicine 457Google Scholar.

⁹⁷ MW [1997] HREOCA 6.

⁹⁸ Infertility Treatment Act 1995 (Vic) s 8(1); Human Reproductive Technology Act 1991 (WA) s 23(c); Reproductive Technology (Clinical Practices) Act 1988 (SA) s 13(3)(b). Note that a successful complaint was then brought by a single woman denied access to the same hospital in Victoria as that involved in MW, prior to the decision in McBain v Victoria (2000) 99 FCR 116, see : W v D (2000) EOC ¶93–045.

⁹⁹ Pearce (1996) 66 SASR 486. By extension marital status requirements in the Northern Territory should have been invalidated by that decision as the sole provider of ART in the Northern Territory operates under the South Australian regulations.

¹⁰⁰ McBain v Victoria (2000) 99 FCR 116.

¹⁰¹ See Jennifer, Lynne Smith, ‘“Suitable Mothers“: Lesbian and Single Women and the “Unborn” in Australian Parliamentary Discourse’ (2003) 23 Critical Social Policy 63Google Scholar.

¹⁰² Discussed in Kristen, Walker, ‘1950s Family Values vs Human Rights: In Vitro Fertilisation, Donor Insemination and Sexuality in Victoria’ (2000) 11 Public Law Review 292Google Scholar.

¹⁰³ For a discussion of the political process see: Carol, Johnson, ‘Heteronormative Citizenship: The Howard Government’s Views on Gay and Lesbian Issues’ (2003) 38 Australian Journal of Political Science 45Google Scholar. For detail of the amending provisions see Belinda, Bennett, ‘Reproductive Technology, Public Policy and Single Motherhood’ (2000) 22 Sydney Law Review 625Google Scholar.

¹⁰⁴ See Kristen, Walker, ‘The Bishops, the Doctor, his Patient and the Attorney-General: The Conclusion of the McBain Litigation’ (2002) 30 Federal Law Review 507Google Scholar.

¹⁰⁵ Kirby J alludes to the fact that the Australian Family Association (‘AFA’), granted leave to make submissions as amicus curiae in the High Court, was primarily motivated by hostility to lesbian parenting: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 432 [147]. See also remarks of Kirby and McHugh JJ about what McHugh J terms a ‘gratuitous and irrelevant attack on homosexuals’ contained in the AFA materials: Transcript of Proceedings, Re Sundberg; Ex parte Australian Catholic Bishops Conference (High Court of Australia, McHugh J, 5 September 2001).

¹⁰⁶ See Stella, Tarrant, ‘Western Australia’s Persistent Enforcement of an Invalid Law: Section 23(c) of the Human Reproductive Technology Act 1991 (WA)’ (2000) 8 Journal of Law and Medicine 92Google Scholar.

¹⁰⁷ Another notable example is the fact that Western Australian law continued to criminalise gay sex under the age of 21 until 2002, despite the Human Rights (Sexual Conduct) Act 1994 (Cth) s 4(1) providing that ‘[s]exual conduct involving only consenting adults in private is not to be subject, by or under any law of the Commonwealth, a State or Territory, to any arbitrary interference with privacy …’. Section 4(2) defines an adult as someone 18 years old or more.

¹⁰⁸ Human Reproductive Technology Act 1991 (WA) s 23.

¹⁰⁹ Human Reproductive Technology Act 1991 (WA) s 23(a)(ia). See also Western Australian Reproductive Technology Council, Questions and Answers about the Donation of Human Reproductive Material (2005) 13 <http://www.rtc.org.au/publications/docs/Q&A.pdf> at 14 July 2006.

¹¹⁰ Human Reproductive Technology Act 1991 (WA) s 23(b).

¹¹¹ See discussion in Advia, Sifris, ‘Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples’ (2004) 30 Monash University Law Review 229Google Scholar, 239–42; see also Walker, above n 102.

¹¹² Bronwyn, Stratham, ‘(Re)producing Lesbian Infertility: Discrimination in Access to Assisted Reproductive Technology’ (2000) 9 Griffith Law Review 112Google Scholar, 137–8.

¹¹³ As was the case in Yfantidis v Jones (1996) 61 SASR 458, discussed by Statham ibid. See ACCESS, About Infertility <http://www.access.org.au/about_infertility> at 7 August 2006.

¹¹⁴ See Aleardo Zanghellini, Lesbians, Gay Men and the Right to be a Parent (PhD Thesis, University of Sydney, 2005). Zanghellini also notes that IVF often allows a fertile woman to conceive using sperm from a sub-fertile male partner so that the couple can have a child to whom both are biologically related, but that the desire of a fertile lesbian to gestate her partner’s egg so that both women have a biological relationship with their child would not be supported under the definition of ‘clinical infertility’. Zanghellini argues that ‘the women’s desire is one and the same: to use IVF in order to be able to gestate their partner’s genes and give birth to the resulting child. However, the law is prepared to satisfy that desire only so long as it originates from a heterosexual couple. This suggests that there is nothing neutral in the adoption of the requirement of infertility in the context of IVF. The effect of adopting that criterion is to incite a woman’s self-definition in relation to a man (and his genes) as opposed to another woman’: ch 2 at 7.

¹¹⁵ This point was noted by the Tribunal Member in the original decision in JM v QFG [1997] QADT 5. The Member referred to the draft guidelines that had been drawn up by the Australian Health Ethics Committee on assisted reproductive technology published in April 1996 which included the following provision:

2.2 However, donor insemination (DI) may be used when the woman is not infertile or there is not a serious risk of transmission of a grave hereditary disease or disability and:

(a) when conditions exist for ensuring the well being of any child born of ART; and

(b) only when the woman or the child born of ART may otherwise be exposed to significant risk through her pursuit of pregnancy.

The Tribunal Member concluded that ‘… because of the risk of HIV from an informal donor who has not been through a proper screening process, [JM] would also fall within clause 2’: at 7–8.

¹¹⁶ See, eg, South Australian Council on Reproductive Technology, Reproductive Information for Students (2006) South Australian Department of Health <http://www.dh.sa.gov.au/reproductive-technology/student.asp> at 29 July 2006. Sifris notes reports that some clinics in Victoria now only require four self-insemination attempts before deeming women eligible: above n 111, 241.

¹¹⁷ Statham, above n 112, 115, contends from her analysis of the Australian case law that ‘the less a complainant’s circumstances appear to conform to the norm of the heterosexual nuclear family form, the less likely it is that exclusion from access to reproductive assistance will be considered to be discriminatory’.

¹¹⁸ See Sifris, above n 111, 238.

¹¹⁹ Infertility Treatment Act 1995 (Vic) s 8(3). Statham, above n 112, 116, argues ‘the further one moves away from a discursive and doctrinal framework constructing the issues in terms of a legal ‘right’ to access assisted reproduction, towards a medical paradigm framing the issues in terms of a ‘medical need’ for fertility treatment, the less likely it is that exclusionary eligibility criteria will be considered to be discriminatory’.

¹²⁰ Sifris, above n 111, 241–2, Walker, above n 102.

¹²¹ In South Australia, lesbians are able to attend non-licensed providers who register with the Minister of Health and agree to abide by the Code of Ethical Clinical Practice, but non-licensed doctors can only provide donor insemination and not IVF, and they do not have access to anonymous donor sperm. Note that no practitioners have registered under these provisions to date: see South Australia Council on Reproductive Technology, Reproductive Technology Information for Students (2006) <http://www.dh.sa.gov.au/reproductive-technology/student.asp> at 29 July 2006; Reproductive Technology Legislation and Regulation in SA Fact Sheet: <http://www.dh.sa.gov.au/reproductive-technology/documents/eligibility-fact-sheet.pdf> at 29 July 2006.

¹²² VLRC, (‘Position Paper Number One’), above n 52, [3.3]–[5]. Note that this is subject to women and donors undergoing counselling and all the other requirements imposed normally on those who are eligible for treatment, and also requires mothers to notify the authority of donor identity and birth details: see Infertility Treatment Authority, Storage of Sperm by Women Using Known Donors for the Purpose of Self-Insemination: Interim Conditions Imposed under Section 106 — Infertility Treatment Act 1995 (2004) <http://www.ita.org.au/_documents/policies/guidelines-nov04.pdf> at 23 September 2005. Note that this document has since been removed. No direct reference to availability of this service is currently made on the ITA website, however mention is made of it in the ITA Annual Report 2005, available at <http://www.ita.org.au/secure/downloadfile.asp?fileid=1001430> at 29 July 2006. The report notes at 11: ‘In late 2004, Melbourne IVF at the Royal Women’s Hospital applied for a variation in its licence for the storage of sperm by women using known donors for the purposes of self-insemination. This was granted with the incorporation of a review and reporting process by the end of 2005.’

¹²³ Infertility Treatment Act 1995 (Vic) s 7.

¹²⁴ VLRC, (‘Position Paper Number One’), above n 52, 20 (interim recommendations 11–13).

¹²⁵ Ibid 22 (interim recommendations 14–15).

¹²⁶ Ibid 27 (interim recommendation 17); see also discussion at [3.6]–[3.8].

¹²⁷ For example, in Position Paper Two the VLRC links legal recognition of the non-birth mother exclusively to the use of Victorian clinics to conceive: above n 25, 20.

¹²⁸ See Matt Price and Clara Pirani, ‘Demand for IVF Ban on Lesbians’, The Australian (Sydney), 2 July 2005.

¹²⁹ The sole provider of fertility services in the Northern Territory is a South Australian company, acting under South Australian laws and guidelines, thus the impact should logically extend to the Territory. However there are reports that the Northern Territory has continued to (unlawfully) restrict access to heterosexual married and de facto couples under a contractual arrangement between the provider and the Territory government: see Seymour and Magri, above n 44, 23–4, and Darwin Community Legal Service, Equality Before the Law: Gay and Lesbian Law Reform in the NT (2002). While this is not in breach of Territory law (due to the operation of s 4(8) of the Anti-Discrimination Act 1992 (NT); see note 131 below) it is clearly inconsistent with the SDA, thus a change to the SDA would merely regularise existing unlawful practice.

¹³⁰ Discrimination Law Amendment Act 2002 (Qld) s 19 inserting s 45A into Anti-Discrimination Act 1991 (Qld).

¹³¹ Anti-Discrimination Act 1992 (NT) s 4(8).

¹³² Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245; see also Andrea, Durbach, ‘Fixing the Brandy Prohibition’ (1995) 20 Alternative Law Journal 137Google Scholar. Remedies may still be sought through the Federal Court.

¹³³ Reproductive services in the Northern Territory are provided by the South Australian Company Repromed.

¹³⁴ NSW has never legislated on this area, but has been considering doing so since 1997. A draft government Bill exists, a public version of which has been available since 2003, but it is unclear whether or when this will be introduced into Parliament. The Bill does not include any eligibility criteria. The Bill would establish a disclosure regime for donors and regulation of the storage and use of gametes: NSW Parliamentary Counsel’s Office, Consultation Draft Bill: Assisted Reproductive Technology Bill 2003 (2003) <http://www.pco.nsw.gov.au/pdf/exposure/b03-015-d12.pdf> at 29 July 2006.

¹³⁵ JM v QFG [1997] QADT 5.

¹³⁶ Note that since the 2002 amendments ‘lawful sexual activity’ is now the ground that covers transgender people and sex workers, while sexual orientation is now covered by the ground ‘sexuality’: Anti-Discrimination Act 1991 (Qld) s 7.

¹³⁷ QFG v JM [1997] QSC 206.

¹³⁸ JM v QFG [2000] 1 Qd R 373.

¹³⁹ Transcript of Proceedings, JM v GK (High Court of Australia, Gleeson CJ and Callinan J, 24 June 1999). On remittal the Tribunal found no indirect discrimination: Morgan v GK [2001] QADT 10.

¹⁴⁰ Anita, Stuhmcke, ‘Limiting Access to Assisted Reproduction: JM v QFG’ (2002) 16 Australian Journal of Family Law 245Google Scholar; Simona, Gory, ‘Constructing the Heterosexually Inactive Lesbian: Assisted Insemination in Queensland’ (2002) 16 Australian Feminist Law Journal 75Google Scholar; Statham, above n 112; Reid, Mortensen, ‘A Reconstruction of Religious Freedom and Equality: Gay, Lesbian and De Facto Rights and the Religious School in Queensland’ (2003) 3 Queensland University of Technology Law and Justice Journal 320Google Scholar.

¹⁴¹ JM v QFG & The State of Queensland [1997] QADT 5, at typescript page 3. See also later discussion on page 4 under the heading ‘The Role of Queensland Health’.

¹⁴² Ibid 5. Parliament of Queensland, Report of the Special Committee Appointed by the Queensland Government to Enquire into the Laws Relating to Artificial Insemination, In Vitro Fertilization and Other Related Matters (1984) (‘Demack Report’).

¹⁴³ Discrimination Law Amendment Act 2002 (Qld) s 19 inserting s 45A into Anti-Discrimination Act 1991 (Qld).

¹⁴⁴ For instance it would be absurd to suggest that protections on the basis of ‘union activity’ did not cover workers who refused to join unions; see Mortensen, above n 140.

¹⁴⁵ The Anti-Discrimination Act 1991 (Qld) was amended in 2002 to include the protected ground ‘sexuality’: s 7(n). This is defined in the Dictionary to include ‘heterosexuality, homosexuality or bisexuality’.

¹⁴⁶ After being refused access to QFG, JM attended another clinic outside Brisbane.

¹⁴⁷ Although note that there are other factors at work also, such as increasingly rigorous health checks for donors, including mental health history screening: see Cath, Dwyer, ‘Selling Sperm: The International Trade in Sperm’ in Heather, Grace Jones and Maggie, Kirkman (eds), Sperm Wars: The Rights and Wrongs of Reproduction (2005) 18Google Scholar. Note also that the proposed NSW Bill, if passed, would considerably limit the use that can be made of a donor’s sperm, inevitably leading to a worsening of the shortage. Currently, providers use sperm to create up to 10 families. The Bill would limit this to children born to five women, including any current and previous partners of the donor: Assisted Reproductive Technology Bill 2003 (NSW) div 3, cl 30 available at <http://www.pco.nsw.gov.au/pdf/exposure/b03-015-d12.pdf> at 29 July 2006.

¹⁴⁸ Telephone conversations with Royal Price Alfred Hospital and Westmead Hospital, 12 October 2005.

¹⁴⁹ In one Sydney clinic this is set at three cycles: thereafter women must find their own donor or undertake IVF in order to continue with the clinic.

¹⁵⁰ See, eg, Reproductive Technology Council (WA), above n 109, 9, noting that donors ‘may place conditions on any donation’ and recipients may be ‘named by the donors or chosen in ways they specify’. See also the statement of a counsellor at Melbourne IVF that donors may state their preferences and ‘this system works well’: Penny Pitt, (paper presented at The Missing Link: Private Rights and Public Interest in Donor Treatment Procedures, Melbourne, 29 October 2003) 20. Repromed, a major provider of fertility services in SA, Victoria and the only provider in the NT, prompts this in its public information: ‘Consent may be given subject to such conditions as the donor specifies on the consent forms or subsequently by notice in writing … Conditions might include: Who will or will not be the recipients of the gamete donation (married couples, de facto couples, single women, lesbian couples, etc)’: above n 71, 7.

¹⁵¹ See, eg, the experience of a lesbian prospective mother who had only one donor to choose from: Mary, Hogan, ‘No one but Himself’ in Heather, Grace Jones and Maggie, Kirkman (eds), Sperm Wars: The Rights and Wrongs of Reproduction (2005), 218Google Scholar.

¹⁵² Di Sisley, Victorian Equal Opportunity Commissioner, notes the effect of donor choice on a ‘single’ woman thus: ‘while she is not refused a service her use of a service is subject to discriminatory terms and conditions. She is receiving a less beneficial service. She may have a longer waiting period for the required service, and this may mean she has a decreased likelihood of pregnancy as a result of her diminished fertility over time’: Pitt, above n 150, 18.

¹⁵³ See Andrew, McLean, ‘Who Can be Parents of our Embryos?’ in Heather, Grace Jones and Maggie, Kirkman (eds), Sperm Wars: The Rights and Wrongs of Reproduction (2005) 112Google Scholar. This argument is also made by Helen Szoke, Chief Executive Officer of the Victorian Infertility Treatment Authority: see Pitt, above n 150, 2.

¹⁵⁴ VLRC, (‘Position Paper One’), above n 52, 33 (interim recommendation 19).

¹⁵⁵ This is justified on the basis that ‘directed donations [are] in accordance with the principle that individuals have the right to determine the circumstances in which their genetic material can be used’: NSW Department of Health, above n 54, [4.9].

¹⁵⁶ This information is drawn from reports of parents in the consultation process for, And Then the Brides Changed Nappies, above n 94.

¹⁵⁷ See Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) reg 12; Human Tissue Act 1983 (NSW) ss 20D, 20G; Human Tissue Regulations 2005 (NSW) sch 1 (containing the requisite questions); Health Act 1958 (Vic) s 133; Health (Infectious Diseases) Regulations 2001 (Vic) reg 19, sch 8. The Victorian provisions are discussed in Walker, above n 102, 305.

¹⁵⁸ As in South Australia and the Northern Territory: see Repromed, above n 71, 4.

¹⁵⁹ Ibid, noting that this is ‘a clinical decision’ in Victoria.

¹⁶⁰ Human Tissue Act 1983 (NSW) s 20D(4).

¹⁶¹ The rationale that the woman in a heterosexual couple has assumed the risk of infection already could equally be made for a lesbian who gave informed consent to a known gay donor. As with other aspects of ART policy it can be argued that it is not ‘health’ but the marital unit that is being protected; here through not requiring the male partner in a couple to potentially make embarrassing revelations, such as sex with prostitutes, or with men.

¹⁶² ABC Radio, ‘Health Minister Warns Doctors not to Provide Medicare Funded IVF Services to Fertile, Single and Lesbain [sic] Women’, AM, 4 August 2000 <http://www.abc.net.au/am/stories/s159416.htm> at 29 July 2006.

¹⁶³ The Medicare schedule provides an item cost of approximately $500 to DI, but presently refunds 80 per cent of the difference between the scheduled fee and the actual cost once the Medicare extended safety net of annual out of pocket expenses is reached. In 2006 this was $1000 for both an ‘individual’ or a ‘family’. A lesbian couple cannot claim the joint ‘family’ threshold, so must each reach the limit separately. Assuming that 6 attempts were made in a calendar year before conception, this would cost over $7000, more than twice the amount that would be paid by a heterosexual couple.

¹⁶⁴ Re Patrick (2002) 28 Fam LR 579.

¹⁶⁵ VLRC, (‘Position Paper Two’), above n 25, [2.9].

¹⁶⁶ Ibid (citations omitted).

¹⁶⁷ See, eg, Workers Compensation Act 1987 (NSW) ss 25(5), 37(7) where a child includes a person to whom the worker stands in the place of a parent; and similar provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4.

¹⁶⁸ See examples discussed in VLRC, (‘Position Paper Two’), above n 25, [2.22]–[2.27].

¹⁶⁹ Cited in Re B and J (1996) 21 Fam LR 186, 192.

¹⁷⁰ Artificial Conception Act 1984 (NSW) ss 3, 6 (since replaced with Status of Children Act 1996 (NSW) s 14); Status of Children Act 1978 (Qld) s 18; Family Relationships Act 1975 (SA) s 10(a), (e); Artificial Conception Act 1985 (WA) ss 3, 7; Status of Children Act 1974 (Tas) s 10C; Artificial Conception Act 1985 (ACT) ss 3, 7 (since replaced with Parentage Act 2004 (ACT) s 11); Status of Children Act 1978 (NT) ss 5A, 5F.

¹⁷¹ Re B and J (1996) 21 Fam LR 186, 192. In fact Western Australia had a major difference in that the severing provisions originally only applied to married and heterosexual de facto couples and did not apply to single women: Artificial Conception Act 1985 (WA) s 7. See Western Australia, Parliamentary Debates, Legislative Council, 21 February 1985, 173 (JM Berinson, Attorney-General). This was amended finally in 2002 to include unmarried women also (with retrospective effect): see Western Australian Reproductive Technology Council, above n 109, 9, 26.

¹⁷² By virtue of the Family Law Amendment Act 1987 (Cth) s 24.

¹⁷³ Family Law Act 1975 (Cth) ss 61B, 61C.

¹⁷⁴ See Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAC, 65DAE, new s 60B inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

¹⁷⁵ Family Law Act 1975 (Cth) s 60H, which reads:

Children born as a result of artificial conception procedures

(1) If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and

(b) either of the following paragraphs apply:

(i) the procedure was carried out with their consent;

(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;

then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.

(2) If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

(3) If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

(4) If a person lives with another person as the husband or wife of the first-mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:

(a) they were married to each other; and

(b) neither person were married to any other person.

¹⁷⁶ Family Law Regulations 1984 (Cth) reg 12C, sch 6.

¹⁷⁷ Family Law Regulations 1984 (Cth) reg 12C, sch 6. Presently this lists the Artificial Conception Act 1985 (ACT) which has in fact been replaced by the Parentage Act 2004 (ACT).

¹⁷⁸ Re Mark (2004) 31 Fam LR 162, 167–8, referring to Fogarty J in Re B and J (1996) 21 Fam LR 186, 198.

¹⁷⁹ A restrictive reading of this section is more problematic, as we will see, if the man is a commissioning parent in a surrogacy arrangement as he was in Re Mark (2004) 31 Fam LR 162 — the case that has given rise to the broadest ‘enlarging’ interpretation of s 60H.

¹⁸⁰ In W v G (1996) 20 Fam LR 49, the donor does not appear to have been listed on the children’s birth certificates, while in Re B and J (1996) 21 Fam LR 186 he was listed. In W v G this led to an adverse finding on the birth mother’s credit because she lied to the Department of Social Security about the donor’s identity in order to claim a supporting parent’s benefit (to which she was in fact legally entitled). In Re B and J the Department of Social Security incorrectly denied the mother supporting parent’s benefit and made her commence a claim for support against the donor, leading to the determination by the Family Court. This does seem like a lose-lose situation for lesbian mothers.

¹⁸¹ I have argued elsewhere that it is regrettable that a lesbian herself should advance public policy arguments such as these. In W v G (1996) 20 Fam LR 49 the defendant, a lesbian co-mother, argued that ‘the formation of stable families is a socially desirable necessary aim and to visit legal obligations upon non-parents to support a child in a homosexual or lesbian relationship is contrary to public policy in that: it will encourage the conception of children by artificial insemination in the absence of a father; will present as “normal” a relationship which is not recognised by the child maintenance legislation; it will encourage the evasion of provisions of the Human Tissue Act and will encourage the bringing into the world of children without a father’: W v G (1996) 20 Fam LR 49, 65. See also Jenni, Millbank, ‘An Implied Promise to Parent: Lesbian Families, Litigation and W v G’ (1996) 20 Fam LR 49 (1996) 10 Australian Journal of Family Law 112Google Scholar.

¹⁸² W v G (1996) 20 Fam LR 49, 63–4. The co-mother was found liable to pay lump sum maintenance for the two children to cover the costs of raising them to the age of 18.

¹⁸³ Ibid 64–5.

¹⁸⁴ Ibid 65.

¹⁸⁵ Re B and J (1996) 21 Fam LR 186, 194–5.

¹⁸⁶ Ibid 192, 194–5.

¹⁸⁷ Ibid 196–7.

¹⁸⁸ For a detailed critique of this decision see Danny, Sandor, ‘Children Born from Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination’ (1997) 4 Australian Journal of Human Rights 175Google Scholar and Dorothy, Kovacs, ‘The AID Child and the Alternative Family: Who Pays? (or Mater Sempa Certa Est — That’s Easy for You to Say!)’ (1997) 11 Australian Journal of Family Law 141Google Scholar.

¹⁸⁹ Kovacs, above n 184. Moreover, Kovacs notes that the policy objective of children having, where possible, two parents to financially support them, could be met by a claim against the co-mother, as established in W v G (1996) 20 Fam LR 49, 159–61.

¹⁹⁰ Sifris, above n 111, notes:

if Parliament intended ‘parent’ to be given different interpretations in the two Federal Acts, a definition of ‘parent’ unrelated to the Family Law Act would have been inserted in the child support legislation. An examination of the explanatory memorandum to the Child Support (Assessment) Bill 1989 (Cth) reveals that, in the case of a child born from artificial conception procedures, the Family Law Act ‘controls’ who is regarded as a parent. The word ‘controls’ may be indicative that s 60H provides a basic statement of who is regarded as a parent for the purposes of both statutes. There is no suggestion … that a person may be regarded as a parent under one statute and not the other. A plain reading implies that if you are a parent under the Family Law Act you will be regarded as a parent under the child support legislation and vice versa. Furthermore, given that one of the purposes of the child support legislation was to remove the responsibility of child support from the public to the private sphere it is highly unlikely that Parliament would eliminate the donor as a potential payer of child support and yet continue to recognise him as a parent for the purposes of the Family Law Act: at 255–6 (citations omitted).

Kovacs, above n 188, also notes that there is nothing in the extrinsic materials at the time to suggest that ‘the Commonwealth intended to remove the donor’s state law exemption from the obligation to pay child maintenance’: at 152.

¹⁹¹ See Re Patrick (2002) 28 Fam LR 579, 595.

¹⁹² Ibid 645.

¹⁹³ Ibid referring to the article by Sandor, above n 188. Sifris, above n 111 agrees with this view: at 246. Also note that Guest J’s later suggestion of legislative reform to recognise known donors who intend to have a parenting role points to the State Acts as the primary source of authority, with later prescription of the State Acts under s 60H to flow through to the Family Law Act 1975 (Cth).

¹⁹⁴ Re Births Deaths and Marriages Registration Act 1997 (2000) 26 Fam LR 234. However it is notable that Guest J went on to grant extensive contact to the father and in many respects appeared to regard him as if he were a non-resident parent from a separated couple rather than an additional figure in an intact family. See a thoughtful and detailed critique in Fiona, Kelly, ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court: The Case of Re Patrick’ (2002) 16 Australian Journal of Family Law 204Google Scholar.

¹⁹⁵ See, eg, Re Births Deaths and Marriages Registration Act 1997 (2000) 26 Fam LR 234 and PJ v Director General Department of Community Services [1999] NSWSC 340.

¹⁹⁶ ND (2003) 31 Fam LR 22.

¹⁹⁷ Re Mark (2003) 31 Fam LR 162, 172.

¹⁹⁸ The Artificial Conception Act 1984 (NSW) s 6(1), which preceded the present Act, used the term ‘be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy’. The current provision is Status of Children Act 1996 (NSW) s 14(2).

¹⁹⁹ Parentage Act 2004 (ACT) s 11(5). This Act was preceded by the Artificial Conception Act 1985 (ACT) ss 3, 7 of which also provided that the donor is conclusively presumed not to be the father.

²⁰⁰ The 1985 provisions only applied to donations to women who were married or in a heterosexual de facto relationship: see Artificial Conception Act 1985 (WA) s 6. In 2002, amendments extended the presumption to donations to single women: see Acts Amendment (Gay and Lesbian Law Reform) Act 2002 (WA) s 27. The Act also ascribed parental status to consenting co-mothers: s 26. Both changes were retrospective in effect. Note that the s 60H issue does not arise in Western Australia as it does not have such a provision in the Family Court Act 1997 (WA). Further s 190 of the Family Court Act 1997 (WA) provides that the registration of a birth (which both mothers can do as parents since 2002) raises the presumption of parentage.

²⁰¹ Family Relationships Act 1975 (SA) s 10e(2).

²⁰² Status of Children Act 1974 (Tas) s 10C(2).

²⁰³ Status of Children Act 1974 (Vic) s 10D(2)(b); Status of Children Act 1978 (Qld) s 16(2)(b); Status of Children Act 1978 (NT) s 5D(1)(b).

²⁰⁴ Status of Children Act 1974 (Vic) s 10F(1); Status of Children Act 1978 (Qld) s 18(1); Status of Children Act 1978 (NT) s 5F(1). Note that the NT provisions, like the Victoria provisions analysed by Brown J, provide that a donor has ‘no rights and incurs no liabilities’. Yet if one assumed that this left the donor to an unmarried woman with residual parental responsibility, how would that sit with s 5DA of the same Act? Section 5DA provides:

(1) Where a woman who is the de facto partner of another woman undergoes, with the consent of the other woman, a fertilization procedure as a result of which she becomes pregnant, the other woman is, for all purposes of the law of the Northern Territory, to be presumed to be a parent of —

(a) the unborn child; and

(b) a child born as a result of the pregnancy.

(2) A presumption of law that arises by virtue of subsection (1) is irrebuttable.

(3) In a proceeding in which the operation of subsection (1) is relevant, a woman’s consent to the carrying out of a fertilisation procedure in respect of her de facto partner is to be presumed, but that presumption is rebuttable.

²⁰⁵ Re Mark (2003) 31 Fam LR 162, 172.

²⁰⁶ Kovacs, above n 188, 142 appears to suggest this:

The New South Wales model unfortunately creates a legal oxymoron, in the absence of a consenting father, husband — a child who in law does not have a father. The Victorian Status of Children (Amendment) Act 1984 avoids that conclusion …

However she later argues at 150 that the Victorian regime has the same legal effect as that in NSW and elsewhere:

The Victorian provision avoids the New South Wales proposition that the donor is not the father of the child and prefers instead to ensure that the donor is excluded from rights to the child and is exempt from the legal obligations of a parent. However, the two legislative approaches are intended to have the same effect in law.

²⁰⁷ Victoria, Parliamentary Debates, Legislative Assembly, 18 April 1984, 3969–70 (Trevor Roper, Minster for Health) (emphasis added).

²⁰⁸ See also the second reading speech in Queensland, which similarly used the formula of ‘has no rights and incurs no liabilities’ rather than ‘is not a parent’. In that speech the Attorney-General concluded that the Bill ‘ensures that the anonymous donors of genetic material will in no circumstances be regarded in law as fathers or mothers and the ensuing rights and liabilities that such would entail’: Queensland, Parliamentary Debates, Legislative Assembly, 23 March 1988, 5548 (Paul Clauson, Minister for Justice and Attorney-General). While the second reading speech of the NT Attorney-General suggests that ‘the link between the semen donor and the child is preserved in terms of proposed section 5(f)’, he then goes on to say that the Bill is in line with Victoria, South Australia and NSW and the only difference noted is that NSW does not cover donor ovum: Northern Territory, Parliamentary Debates, Legislative Assembly, 23 April 1985, 773 (Marshall Perron, Attorney-General). Finally note also that virtually identical wording to the Victorian speech is used in the speech of the Attorney-General of Tasmania, even though Tasmania used the ‘not a parent’ formula: Tasmania, Parliamentary Debates, House of Assembly, 17 October 1985, 3734–5 (Geoffrey Pearsall, Attorney-General).

²⁰⁹ Victoria, Parliamentary Debates, above n 207, 3969.

²¹⁰ See a discussion of US cases in Kovacs, above n 188, 160–2 and a more recent analysis of US cases in Nancy, Polikoff, ‘Breaking the Link Between Biology and Parental Rights in Planned Lesbian Families: When Semen Donors Are Not Fathers’ (2000) 2 Georgetown Journal of Gender and the Law 57Google Scholar. Note also the position in the UK, where a donor’s status depends upon compliance with the Human Fertilisation and Embryology Act 1990 (UK) c 37. In the UK a further distinction among legal fathers is made based upon whether they are married to the child’s mother, with unmarried fathers of children conceived through all means not granted automatic parental responsibility.

²¹¹ Guest J notes this in Re Patrick (2002) 28 Fam LR 579, 645.

²¹² See Re B and J (1996) 21 Fam LR 186, 194–5.

²¹³ Re Mark (2003) 31 Fam LR 162, 174.

²¹⁴ Note that the VLRC is incorrect on this point: VLRC, (‘Position Paper Three’), above n 53, [5.8].

²¹⁵ Re B and J (1996) 21 Fam LR 186; Re Mark (2003) 31 Fam LR 162.

²¹⁶ Re Patrick (2002) 28 Fam LR 579; W v G (1996) 20 Fam LR 49.

²¹⁷ Re J and M (2004) 32 Fam LR 668, 671 I am aware of two cases in 2006 involving registries of the Family Court and Federal Magistrates Court in Sydney and Parramatta refusing to grant parenting orders by consent to lesbian couples with children born through ART unless the known donor was served with the application and listed as the respondent. One of these decisions is currently under appeal, so hopefully some clarity will ensue.

²¹⁸ Susan Boyd, Carol Smart and other feminist commentators have argued persuasively that this is the result of a trend towards an increased focus on and valorisation of the role of fathers generally, which has intersected with the expansion of, and growing legal scrutiny of, lesbian-led families: see Susan Boyd, ‘Gendering Legal Parenthood: Genetics, Intentionality and Responsibility’ (forthcoming); Carol, Smart and Bren, Neale, Family Fragments (1999)Google Scholar; Fiona, Kelly, ‘Nuclear Norms or Fluid Families? Incorporating Lesbian and Gay Parents and their Children into Canadian Family Law’ (2004) 21 Canadian Journal of Family Law 133Google Scholar.

²¹⁹ As in W v G (1996) 20 Fam LR 49; Re B and J (1996) 21 Fam LR 186. Further, many lesbians chose known donors in states such as Victoria as a direct result of being excluded from access to anonymous donors through fertility services. Such a finding therefore compounds the effects of discrimination in denying women choices about their family form.

²²⁰ In Re B and J (1996) 21 Fam LR 186, this is most extraordinary as it is contrary to the intentions of all parties and the family form involved, while in Re Patrick (2002) 28 Fam LR 579 it is contrary to the wishes of the mothers (and in my view contrary to the family form in which the child was being raised). In Re Mark (2003) 31 Fam LR 162 at least such recognition would be in keeping with both intention and family form.

²²¹ Indeed, in Re Patrick (2002) 28 Fam LR 579, 647, Guest J misleadingly refers to the co-mother as if she has legal recognition (by virtue of expert reports that state she is a parent) and goes on to contrast the biological father’s lack of recognition as if he has lesser rights.

²²² Ibid 649–50.

²²³ Though note it would not affect Western Australia as it has its own Family Court and recognition of co-mothers in its Family Court Act 1997 (WA).

²²⁴ Note that the new ACT provisions expressly provide this: Parentage Act 2004 (ACT) s 14.

²²⁵ Note that the co-mother is presently excluded from the provisions of s 60H of the Family Law Act 1975 (Cth) both by the gendered wording of sub-s (1) and the lack of prescription under sub-s (2) (the prescription currently refers only to repealed ACT legislation, it also includes the Northern Territory Act but only the earlier provisions on male partners, not the new provision on co-mothers). Prescription of all of the relevant State provisions would be an easy way of creating a harmonious regime and of allowing for the staged recognition of co-mothers in federal law as and when they are granted status in State law.

²²⁶ See Millbank, above n 1.

²²⁷ Guest J did recognise this to some extent when he focused on the importance of agreements: Re Patrick (2002) 28 Fam LR 579, 648. Adiva Sifris supports the use of written agreements to displace clear presumptions of parentage: see ‘Known Semen Donors: To Be or Not To Be a Parent’ (2005) 13 Journal of Law and Medicine 230, 242–3Google Scholar. See also the thoughtful discussion of the different meaning of ‘parent’ in lesbian and gay families formed through assisted conception, and the creation of a limited, largely symbolic parental status for a known sperm donor in a recent UK case: Re D (Contact and PR: Lesbian Mothers and Known Father) No 2 [2006] EWHC 2. Note that in that case the child was the result of a donor agreement but conceived through intercourse. This was irrelevant to the case as, in contrast to Australia, the UK does not grant automatic parental responsibility to fathers if they are not married to or living with the child’s mother.

²²⁸ Millbank, above n 94.

²²⁹ The Commission notes, for example that the Victorian Registry of Births, Deaths and Marriages has insisted that women without male partners inform them of the name of donors in order to record it on the birth register (although not the birth certificate) because it does not regard the donor’s rights as fully extinguished: VLRC, (‘Position Paper Two’), above n 22, [4.9].

²³⁰ VLRC, (‘Position Paper Two’), above n 25, 31 (recommendation 13). See discussion [4.19–4.30].

²³¹ Ibid 31 (recommendation 13–14).

²³² Ibid (recommendation 15–16).

²³³ See Millbank, above n 1.

²³⁴ Note that the NSW Registry of Births, Deaths and Marriages has repeatedly refused to list siblings on the birth certificate of a new child where both children are born to the same mother and the same donor through assisted conception: communication with Andrea Wilson, 8 September 2005.

²³⁵ Family Law Act 1975 (Cth) s 65C. See, eg, a case where a woman, Ms M, had extensive care and contact with a child born to a woman with whom she had a brief lesbian relationship in the context of a much longer close friendship between the two. The mother lived briefly and intermittently with the father, and he also had contact with the child when they separated. The mother and Ms M never lived together but she had been at the birth of the child and maintained a close relationship. The mother denied that Ms M was a person with standing to bring a contact application, but the Family Court held otherwise: KAM v MJR (1998) 24 Fam LR 656.

²³⁶ Family Law Act 1975 (Cth) s 65D(1).

²³⁷ In several US jurisdictions, co-mothers have been denied standing to bring contact claims: see Nancy, Polikoff, ‘Lesbian and Gay Parenting: The Last Thirty Years’ (2005) 66 Montana Law Review 51Google Scholar. However note that in a number of recent cases, courts have ‘read-in’ female partners to gendered family law statutes in order to grant parental status: see, eg, Elisa B v Emily B, 37 Cal 4th 108 (2005); KM v EG, 37 Cal 4th 130 (2005); Kristine H v Lisa R, 37 Cal 4th 156 (2005).

²³⁸ This was a commonly expressed fear of mothers in consultations held for And then the Brides Changed Nappies, above n 94.

²³⁹ I say ‘revert’ because this reflects hegemonic notions of biological parenting as ‘authentic’. Lesbian parents must actively resist these notions in creating their families, but this resistance may weaken in times of conflict when self-interest induces a claim for any societal or legal privilege available: see Shelley, Gavigan, ‘A Parent(ly) Knot: Can Heather Have Two Mommies?’ in Didi, Herman and Carl, Stychin (eds), Legal Inversions: Lesbians, Gay Men, and the Politics of Law (1995) 102Google Scholar. However, courts may be less willing than previously to accept such a position, see, eg, the disapproval expressed about a birth-mother’s claim that the co-mother is no longer a parent in the British Columbia: T(KG) v D(P) [2005] BCSC 1659. Even more strikingly, when a birth mother sought to exclude the co-mother in a recent UK case, the Court of Appeal responded by granting joint residence orders (the only possible form of order that would grant shared parental responsibility to both mothers) for the two children, aged 6 and 4 to the co-mother, Miss W. The Court of Appeal in Re G (Residence: Same-Sex Partner) [2005] 2 FLR 957, [2005] EWCA Civ 462, [27] unanimously held that:

the children required firm measures to safeguard them from diminution in, or loss of, a vital side of family life — not only their relationship with Miss W, but also with her son …. The judge’s finding [that the mother had been developing plans to marginalise Miss W] required a clear and strong message to the mother that she could not achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into some undefined family connection.

When the birth mother subsequently disobeyed the court order and secretly relocated to another part of the country to thwart the co-mother’s contact, the Court of Appeal unanimously upheld a decision to grant residence to the co-mother: Re G [2006] EWCA Civ 372. The decision was reversed on appeal to the House of Lords, but the order of joint residence (shared parental responsibility) remains in force: Re G [2006] UKHL 43.

²⁴⁰ Re J and M (2004) 32 Fam LR 668.

²⁴¹ Re F and D (2005) 33 Fam LR 568.

²⁴² As noted earlier (above n 240), in Re J and M (2004) 32 Fam LR 668, the donor was anonymous and the Magistrate (in my view, incorrectly) alluded to a known donor as someone whose consent would be needed. In Re F and D (2005) 33 Fam LR 568, the mother had died some years earlier.

²⁴³ See, eg, a discussion of adoption in European countries (in the context of relationship recognition) in Kees, Waaldijk, ‘Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries’ (2004) 38 New England Law Review 569Google Scholar.

²⁴⁴ See Polikoff, above n 237; Julie, Shapiro, ‘A Lesbian-Centered Critique of Second-Parent Adoptions’ (1999) 14 Berkeley Women’s Law Journal 17Google Scholar.

²⁴⁵ Note however that as part of the 2003 reforms the Northern Territory introduced a change to redefine the child born to one party in a de facto relationship as a ‘step-child’ as a presumptive status in the same way that the child of a party to a legal marriage would be: see Interpretation Act 1978 (NT) s 19A(4). This amendment affects a small but significant range of Acts, including inheritance and guardianship, reflecting the limited number of pre-existing laws in which the relationship of step-child was given legal status: see Compensation (Fatal Injuries) Act 1974 (NT); Crimes (Victims Assistance) Act 1982 (NT); Family Provision Act 1970 (NT); Legislative Assembly Members’ Superannuation Act 1979 (NT); Stamp Duty Act 1978 (NT); Taxation (Administration) Act 1978 (NT).

²⁴⁶ As they would be for example in WA where provisions include a de facto partner of a parent: Adoption Act 1994 (WA) s 68(2)(i).

²⁴⁷ Adoption Act 1994 (WA) s 68(1)(fa); Adoption Act 1993 (ACT) s 18(2); Adoption Act 2000 (NSW) s 30; Adoption of Children Act 1964 (Qld) s 12(3); Adoption Act 1984 (Vic) s 11(5), (6); Adoption of Children Act 1994 (NT) s 15; Adoption Act 1988 (SA) s 12(3), (4). The Tasmanian provisions for registered significant relationships do not appear to be subject to this qualification: Adoption Act 1988 (Tas) s 20.

²⁴⁸ Or where that legal parent is consenting, for example the situation in ND v BM (2003) 31 Fam LR 22.

²⁴⁹ See, eg, Adoption Act 2000 (NSW) ss 3, 102; Adoption Act 1984 (Vic) ss 53, 66; Adoption Act 1994 (WA) ss 75, 136; Adoption Act 1993 (ACT) ss 43, 54; Adoption Act 1988 (Tas) ss 50, 59; Adoption Act 1988 (SA) ss 9, 20; Adoption of Children Act 1964 (Qld) ss 28, 37; Adoption of Children Act 1994 (NT) ss 45, 49.

²⁵⁰ See, eg, Income Tax Assessment Act 1936 (Cth) s 6, defining ‘child’ as including an adopted child and defining ‘adopted child’ as a child adopted under a State or Territory law governing adoption.

²⁵¹ So for example, adoption orders made in Australia would be recognised by Adoption Act 1955 (NZ) s 17.

²⁵² VLRC, (‘Position Paper Two’), above n 25, 20 (recommendation 2).

²⁵³ Ibid [3.26].

²⁵⁴ The Commission ‘envisages that a significant majority of women in same-sex relationships who choose to have children will avail themselves of services offered by licensed clinics’: ibid [3.33]. Further the Commission posits that the ‘automatic operation [of deemed adoption] is designed to be an incentive for women to utilise the services of a clinic’: at [3.38].

²⁵⁵ Self-insemination is a more common form of conception for lesbian mothers in Australia (see McNair et al, above n 6, and Millbank, above n 1), and is likely to remain so for many reasons, including the desire for the child to have knowledge of and contact with their biological father, a desire to have a gay man as the donor, a decision to conceive in a relaxed and non-medical environment where they are in control of the process, the high cost of clinical services, and a tradition of discrimination in particular within Victorian services.

²⁵⁶ The consent of a partner to the conception is presumed, but such consent can be rebutted on the balance of probabilities by contrary evidence.

²⁵⁷ The VLRC notes a Victorian study of heterosexual families in which children were donor-conceived: only 37 per cent of the respondent families had told their children of this fact: (‘Position Paper Two’), above n 25, [5.19]. See also McNair, above n 1.

²⁵⁸ See, eg, Artificial Conception Act 1985 (WA) s 3, drawing on the definition in Human Reproductive Technology Act 1991 (WA) s 3:

‘artificial fertilisation procedure’ means any —

(a) artificial insemination procedure; or

(b) in vitro fertilisation procedure;

‘artificial insemination procedure’ means a procedure where human sperm are introduced, by a non-coital method, into the reproductive system of a woman but which is not, and is not an integral part of, an in vitro fertilisation procedure.

²⁵⁹ Status of Children Act 1996 (NSW) s 14(4); Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1978 (Qld) s 15(3); Status of Children Act 1974 (Vic) s 10C(3); Artificial Conception Act 1985 (WA) s 6(1); Status of Children Act 1978 (NT) s 5D(2); Family Relationships Act 1975 (SA) s 10D(1). Tasmanian legislation does not state if the presumption is conclusive or irrebuttable: Status of Children Act 1974 (Tas) s 10C(1).

²⁶⁰ Danny Sandor and I came up with this idea together in late 1997 or early 1998 over a vodka and tonic (him) and beer (me), or two, at the Lizard Lounge in Sydney. This proposal did not make it through to the final version of the Democrats’ De Facto Relationships Amendment Bill 1998 (NSW) but was recommended by the Ministerial Committee on Gay and Lesbian Law Reform, Parliament of Western Australia, Lesbian and Gay Law Reform: Report of the Ministerial Committee (2001).

²⁶¹ Acts Amendment (Gay and Lesbian Law Reform) Act 2002 (WA) s 26 introduced section 6A into the Artificial Conception Act 1985 (WA). This section came into force on 21 September 2002.

²⁶² Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (NT) s 41 inserted section 5DA into the Status of Children Act 1978 (NT). This section commenced on 17 March 2004.

²⁶³ Parentage Act 2004 (ACT) repealed the Birth (Equality of Status) Act 1988 (ACT). The Parentage Act 2004 (ACT) came into effect on 22 March 2004.

²⁶⁴ The process of passing these reform packages is discussed in Jenni, Millbank, ‘The Recognition of Lesbian and Gay Families in Australian Law — Part One: Couples’ (2006) 34 Federal Law Review 1Google Scholar.

²⁶⁵ Parentage Act 2004 (ACT) s 8(4).

²⁶⁶ Catharine Munro, ‘Gay Parents’ Rights to Take a Front Seat in Parliament’, The Sun-Herald (Sydney), 18 September 2005, 4.

²⁶⁷ J v Director-General, Department of Home Affairs (2003) 5 BCLR 463.

²⁶⁸ See Elisa B v Emily B, 37 Cal 4th 108 (2005) and other recent California cases, above n 237.

²⁶⁹ See American Civil Liberties Union of New Jersey, Birth Certificate Victory for Same-Sex Couple (2005) <http://www.aclu-nj.org/pressroom/birthcertificatevictoryfor.htm> at 23 September 2005.

²⁷⁰ Status of Children Act 1969 (NZ) s 18. Yet despite these national and international trends, and overwhelming support for this model from submissions, the VLRC did not make an interim recommendation to introduce similar changes in Victoria (preferring instead the ‘deemed adoption’ process discussed above).

²⁷¹ Artificial Conception Act 1985 (WA) s 4(1); Status of Children Act 1978 (NT) s 5B(1); Parentage Act 2004 (ACT) s 11(7). Indeed the Northern Territory provisions go further to state that they apply whether or not the parents have ever resided in the jurisdiction: Status of Children Act 1978 (NT) s 2A.

²⁷² Artificial Conception Act 1985 (WA) s 4(1); Status of Children Act 1978 (NT) s 5B(1); Parentage Act 2004 (ACT) s 8(2).

²⁷³ Although this is helpful for evidentiary purposes.

²⁷⁴ Note that the ACT was careful to be especially clear in its wording to this effect: see Parentage Act 2004 (ACT) s 11(9) which defines ‘procedure’ as:

(a) artificial insemination; or

(b) the procedure of transferring into the uterus of a woman an embryo derived from an ovum fertilised outside her body; or

(c) any other way (whether medically assisted or not) by which a woman can become pregnant other than by having sexual intercourse with a man.

Western Australia does not differentiate between clinical and private insemination and registers all children born to lesbian couples regardless of the method of insemination: Email from Western Australian Department of Birth, Deaths and Marriages to Jenni Millbank, 9 September 2005.

²⁷⁵ Status of Children Act 1996 (NSW) s 11(1); Parentage Act 2004 (ACT) s 9; Status of Children Act 1978 (Qld) s 18B; Interpretation Act 1984 (WA) s 5; Status of Children Act 1978 (NT) s 9; Status of Children Act 1974 (Tas) s 8A.

²⁷⁶ In Western Australia the mothers can choose be listed as ‘Mother and Parent’ or ‘Mother and Mother’ or ‘Parent and Parent’. In the ACT mothers can choose to be listed as ‘Mother and Parent’ or ‘Parent and Parent’. In the Northern Territory the birth mother can be listed as ‘Natural Mother’ or ‘First Parent’ while the co-mother is listed as the ‘Other/Second Parent’.

²⁷⁷ In Western Australia and the Northern Territory there are separate forms for lesbian mothers. In both jurisdictions, the separate forms must be obtained from the Registry and are not available online as other registration forms are.

²⁷⁸ Births, Deaths and Marriages Registration Act 1998 (WA) ss 20, 21.

²⁷⁹ Births, Deaths and Marriages Registration Act 1997 (ACT) s 16.

²⁸⁰ Parentage Act 2004 (ACT) ss 15, 19.

²⁸¹ Email from ACT Births, Deaths and Marriages Registry to Jenni Millbank, 5 September 2005.

²⁸² Births, Deaths and Marriages Registration Act 1996 (NT) s 19; Email from Northern Territory Department of Justice to Jenni Millbank, 2 September 2005.

²⁸³ See, eg, the Social Security Act 1991 (Cth) s 5(1) which uses the undefined expression ‘natural parent’.

²⁸⁴ See Jenni Millbank, ‘Areas of Federal Law that Exclude Same Sex Couples’ (Research Report for the Human Rights and Equal Opportunity Commission, 2006, forthcoming).

²⁸⁵ Status of Children Act 1978 (NT) s 5DA(1); Artificial Conception Act 1985 (WA) s 6A(1).

²⁸⁶ Parentage Act 2004 (ACT) s 8(1).

²⁸⁷ However there is a difference in the wording of the Northern Territory where the provision on male partners is not limited, while that on female partners is: Status of Children Act 1978 (NT) s 5D.

²⁸⁸ Family Law Regulations 1984 (Cth) sch 6, reg 12C.

²⁸⁹ Family Law Act 1975 (Cth) s 60H(4).

²⁹⁰ See, eg, Re Brown and Commissioner for Superannuation (1995) 38 ALD 344; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 52 ALD 507. Note that in the UK (with the assistance of the Human Rights Act 1998 (UK) c 42) the House of Lords recently found that a gay couple did meet the definition ‘living as a spouse’: Ghaidan v Godin-Mendoza [2004] 2 AC 557.

²⁹¹ Family Law Regulations 1984 (Cth) sch 6, reg 12CA. Presently this lists the Artificial Conception Act 1985 (ACT) which has in fact been replaced by the Parentage Act 2004 (ACT).

²⁹² Note that birth mothers in the situation may use promissory estoppel to make a claim for lump sum support: see W v G (1996) 20 Fam LR 49.

²⁹³ See Child Support (Assessment) Act 1989 (Cth) s 7.

²⁹⁴ Under the Family Court Act 1997 (WA) s 77, a parenting plan may also include child support provisions where a plan cannot be made under the Child Support (Assessment) Act 1989 (Cth). Under s 133 of the Family Court Act 1997 (WA), ‘a person who is the parent of a child under section 6A of the Artificial Conception Act 1985’ is liable to contribute towards child bearing expenses. Thus mothers who have a child together using assisted conception are equally liable for child raising costs under the regime, although only the birth mother would need to use the Family Court Act 1997 (WA).

²⁹⁵ I am indebted to Mel Gangemi for this insight.

²⁹⁶ Family Law Act 1975 (Cth) s 69U.

²⁹⁷ Family Law Act 1975 (Cth) s 69U(3).

²⁹⁸ Family Law Act 1975 (Cth) s 66E. Conversely it could not make a child maintenance order against a biological mother for the reason that she is already liable under the Child Support (Assessment) Act 1989 (Cth).

²⁹⁹ I am indebted to Advia Sifris for pointing out this possibility.

³⁰⁰ Millbank, above n 94, 18.

³⁰¹ Artificial Conception Act 1985 (WA) s 4(2); Status of Children Act 1978 (NT) s 5B(2); Parentage Act 2004 (ACT) s 8(11).

³⁰² Although note that in the Northern Territory there are ‘no duty to inquire’ provisions: Status of Children Act 1978 (NT) s 7(1).

³⁰³ Take, for example, the facts from W v G (1996) 20 Fam LR 49: the mothers separated in 1994, and at the time of hearing in 1996 the co-mother had not had any contact with the children (although note that case is complicated by allegations of violence).

³⁰⁴ Millbank, above n 94, 18.

³⁰⁵ Parentage Act 2004 (ACT) s 8.

³⁰⁶ Presumptions arising from procedure prevail over any other presumption except a presumption arising from a court order: Parentage Act 2004 (ACT) s 13(3).

³⁰⁷ ND (2003) 31 Fam LR 22.

³⁰⁸ Parentage Act 2004 (ACT) s 14.

³⁰⁹ Parentage Act 2004 (ACT) s 14.

Article contents

Recognition of Lesbian and Gay Families in Australian Law — Part Two: Children

Extract

Access options

Footnotes

References

Save article to Kindle

Save article to Dropbox

Save article to Google Drive

Reply to: Submit a response

Your details

You have entered the maximum number of contributors

Conflicting interests