SAME-SEX PARENTING

Introduction

There are two layers of law that are relevant for same-sex parents in Queensland. Commonwealth laws and Queensland laws. Queensland laws that apply include laws relating to artificial conception, surrogacy and laws relating to the registration of births. Commonwealth laws that apply include laws about who are recognised as the parents of the child, child support, family tax benefits, Medicare and superannuation. If there is an inconsistency between the Queensland laws and the Commonwealth laws, the Commonwealth laws prevail.

QUEENSLAND LAWS

Can the non-birth mother be named as a parent on a birth certificate?

Unfortunately the answer is no. Under Queensland laws, the non-birth mother of a child born to a lesbian relationship is not a parent of the child for the purpose of registering the birth. Only the birth mother can be named as the mother on the birth certificate.

Under Queensland law there is no recognition of the non-birth mother as the parent of a child born to a lesbian relationship.

What about the donor?

Under Queensland laws the donor is not recognised as the parent of a child born by means of an artificial conception procedure. It is most likely that this includes a known donor where conception occurs without the involvement of a fertility clinic.

What about surrogacy laws?

Surrogacy arrangements are where a person or persons enter into an arrangement with a woman that:

1. The woman will bear a child;
2. After birth the child will be treated as the child of the person or persons who entered into the arrangement with the woman

In Queensland it is illegal for anyone to enter into surrogacy arrangements. In addition it is illegal for Queensland residents to enter into a surrogacy arrangements outside Queensland. It does not matter whether or not any money is paid to the woman. This means, for example, it is illegal for a gay male couple who live in Queensland to enter into a surrogacy arrangement with a women overseas or in another state of Australia.

COMMONWEALTH LAWS

Do Commonwealth Laws recognise same-sex parenting relationships?

In December 2008 the Commonwealth government introduced laws about the children of same-sex couples. These laws:

1. Apply to any child or children born to a same-sex couple during their relationship as a result of an artificial conception process consented to by the non-birth mother;
2. Legally recognise the child or children as the child or children of both of the couple regardless of who was the birth mother;
3. Specifically state that the donor is not legally a parent of the child or children.

If the child or children is born during the relationship, the non-birth mother is deemed to have consented to the artificial conception procedure unless it is proved she did not consent.

What if my child was born before the new laws were introduced

The Commonwealth laws apply to all children, regardless of whether they were born before or after the laws were introduced.

What sort of situations do the Commonwealth recognition of same-sex parenting apply to?

Family Court:

The children born to a same-sex couple are recognised as the children of both same-sex parents by the Family Court in any property dispute between the couple.

If the couple separate, the Family Law Act regime that applies to heterosexual couples for resolving any parenting disputes about who children live with and spend time with now applies to the same-sex couple.

Child Support:

From 1st July 2009 the child support laws apply to same-sex parents in the same way as they apply to opposite sex parents. This means if a same-sex couple separate, either parent may apply for a child support assessment against the other parent. Because a donor is not recognised as a parent, they are not liable to pay child support.

Generally:

The same-sex parents are both recognised as the parents of the child or children across various commonwealth legislation including:

Superannuation – the children are able to be recognised as eligible for reversionary benefits and reversionary death benefits. You should check with your superannuation fund whether they in fact recognise children of a same-sex couple for these purposes.

Medicare and PBS safety net

And from 1st July 2009:

Tax – including claiming children as dependents

Family Assistance entitlements

This Information Sheet provides information on the law in Queensland, Australia. If you are seeking information about the law in another state, territory or country, please contact a lawyer in that state, territory or country.

© Denise Maxwell, Solicitor 2010