Recognising Same-Sex Parents

Australian Bureau of Statistics, Year Book Australia, ‘Same Sex Couple Families’, (2005) 142.

The Office of the Attorney-General, ‘New Laws on ART and Surrogacy’ (Media release, 14 December 2007).

Office of the Prime Minister, ‘Amendment to the Sex Discrimination Act 1984’ (Media Release, 1 August 2000).

As quoted in C Nader ‘Lesbians, Singles May Use IVF Says Reform Report’ The Age (Melbourne) 8 June 2007, 3.

Vienna Convention on the Law of Treaties, 23 May 1969, art 26 (‘Every treaty is binding upon the parties to it and must be performed by them in good faith’).

See, eg, Convention on the Rights of the Child, opened for signature 20 November 1989, ILM 28 1448, preamble (entered into force 2 September 1990), International Covenant on Civil and Political Rights, opened for signature 16 December 1966, art 23 (entered into force 23 March 1976); International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, art 10(1) (entered into force 3 January 1976).

Ibid. See also, Human Rights Committee, General Comment No 19, Protection of the Family, the Right to Marriage and Equality of Spouses (27 July 1990), para 1 in HRI/GEN/Rev.1 at 28 (1994).

See, eg, Convention on the Rights of the Child, art 16.

Convention on the Rights of the Child, art 7.

Convention on the Rights of the Child, art 18 and 27.

See eg, the submissions of the Catholic Church in McBain v Victoria [2000] FCA 1009 [11] and [12].

Ibid [12].

Committee on the Rights of the Child, Role of the Family in the Promotion of the Rights of the Child, 7th Session 10 October 1994 CRC/C/24 (1994) para 2.1; also in Committee on the Rights of the Child Reports of General Discussion Days CRC/C/DOD/1 (19 September 2001) 27.

Committee on the Rights of the Child, Summary of General Discussion CRC/C/34 paras 190–191; also in Committee on the Rights of the Child Reports of General Discussion Days CRC/C/DOD/1 (19 September 2001) 29.

See Du Toit & Anor v The Minister for Welfare and Population Development & Ors (2003) 4 CHRLD 21 para 19 (South Africa). See also the earlier jurisprudence of the Court with respect to the definition of family in National Coalition for Gay and Lesbian Family v Minister for Home Affairs [2000] (2) SA 1 (CC) paras 47–48 (South Africa).

Re K (1995) 15 RFL (4th) 129, 143 (Canada) Nevins J.

See Human Rights Committee, General Comment No 18, Non Discrimination (10 November 1989) para 1 in HRI/GEN/1/ Rev 1 at 26 (1994).

Convention on the Rights of the Child, art 2(1).

Ibid art 2(2).

For a more detailed discussion of the federal consequences of non-recognition see Human Rights and Equal Opportunity Commission, Same Sex: Same Entitlements, National Inquiry into Discrimination Against People in Same Sex Relationships: Financial and Work Related Entitlements and Benefits (2007) ch 5.

See Human Rights Committee, General Comment No 18, Non Discrimination (10 November 1989) para 13 in HRI/GEN/1/ Rev 1 at 26 (1994).

Pappas A , ‘Introduction’ in Pappas A (ed), Law and Status of the Child (1983) xliv.

Douglas G , ‘The Family and the State under the European Convention on Human Rights’ (1988) 2 International Journal of Children's Rights 76, 87.

Committee on the Rights of the Child, Concluding Observations for Honduras CRC/C/15/Add24 para 12.

Committee on the Rights of the Child, Guidelines for Periodic Reports CRC/C/58 para 51.

Freeman M , ‘The New Birth Right? Identity and the Child of the Reproduction Revolution’ (1996) 4 International Journal of Children's Rights 273, 283.

Van Bueren G , International Law on the Rights of the Child (1995) 117.

See Detrick S (ed), The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires (1992) 620.

See eg, Committee on the Rights of the Child, Concluding Observations for Sierra Leone CRC/C/15/Add116 para 42. See also, Committee on the Rights of the Child, Concluding Observations for Paraguay CRC/C/15/Add27 para 10; Paraguay CRC/C/15/Add75 para 18; Comoros CRC/C/15/Add141 para 27; Dijbouti CRC/C/15/Add131 para 31; Peru CRC/C/15/Add8 para 8.

Woodhouse B , ‘Are You My Mother? Conceptualising Children's Identity Rights in Transracial Adoptions’ (1995) 2 Duke Journal of Gender Law and Policy 107, 127.

For a more detailed discussion see Millbank J , ‘Recognition of Lesbian and Gay Families in Australian Law — Part Two: Children’ (2006) 34 Federal Law Review esp 246–54 whose work was of great assistance in this analysis.

In Australia, a biological parent is assumed to be the parent of a child in the absence of a statutory intention to the contrary. See Victorian Law Reform Commission Assisted Reproductive Technology: Final Report (2007) 114 (citing relevant authorities).

Family Law Act 1975 (Cth) Part VII (Children) Divisions 5 & 6 ss 64A to 65ZC.

J Millbank above note 31, 248

See generally, ibid 249–50.

Adoption Act 1994 (WA); Adoption Act 1993 (ACT); Adoption Act 1988 (Tas). The series of provisions relevant to the identity of persons able to adopt are not hetero specific thus enabling gay and lesbians to adopt in certain circumstances. For example in Tasmania, eligibility to adopt is dependent upon one partner being the biological parent or relative of the child and the couple must have entered a registered deed of relationship: Section 20. See generally: J Millbank above n 34, 248–9.

Media release, above n 2; Victorian Law Reform Commission Final Report: Access Adoption and Assisted Reproductive Technology (2007) 12 (recommendation 68).

Millbank J above note 32, 249.

Acts Amendment (Lesbian and Gay Lesbian Reform) Act 2002 (WA) s 26 which introduced s 6A into the Artificial Conception Act 1985 (WA).

Law Reform (Gender Sexuality and De Facto Relationships) Act 2003 (NT) s 41 which inserted s 5DA into the Status of Children Act 1978 (NT).

Parentage Act 2004 (ACT) ss 8, 9.

Victorian Law Reform Commission Final Report: Access Adoption and Assisted Reproductive Technology (2007) 12 (recommendation 73).

American Academy of Pediatricians Policy Statement, ‘Coparent or Second Parent Adoption by Same Sex Parents’, Committee on Psychosocial Aspects of Child and Family Health (2002) 109 Pediatrics 339.

Ibid.