Recognition of Same-Sex Parenting in Australia

Artificial Conception Act 1985 (WA); Family Relationships Act 1975 (SA); Parentage Act 2004 (ACT); Status of Children Act 1996 (NSW); Status of Children Act (NT); Status of Children Act 1974 (Tas); Status of Children Act 1978 (Qld); Status of Children Act 1974 (Vic).

SA Parliament Social Development Committee Inquiry into Same-Sex Parenting, <parliament.sa.gov.au/Committees/Pages/Committees.aspx?CTId=5&CId=182> at 17 November 2010.

Private members bill was tabled on 26 July 2010. See Family Relationships (Parentage) Amendment Bill 2010.

Legal parentage may include but is not limited to genetic/biological parentage.

Family Relationships Act 1975 (SA) s 10c.

Statutes Amendment (Surrogacy) Act 2009 (SA) s10. (This Act will amend the Family Relationships Act 1975 (SA).)

A ‘married woman’ includes a woman living with a man as his wife on a genuine domestic basis: s 10a(1).

Family Relationships Act 1975 (SA) s 10c.

Family Relationships Act 1975 (SA) s 10A.

Family Relationships Act 1975 (SA) ss 10D(1)(a) & (b). In every case where it is necessary to determine whether a husband consented to his wife undergoing a fertilisation procedure, that consent shall be presumed, but the presumption is rebuttable (s 10D(2)).

Family Relationships Act 1975 (SA) s 10A.

Family Relationships Act 1975 (SA) s 10e.

Family Relationships (Parentage) Amendment Bill 2010.

See, eg, s 10A provides: married woman or wife includes a woman who is living with a man as his wife on a genuine domestic basis; and husband has a correlative meaning.

International Covenant on Civil and Political Rights, Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

Zanghellini Aleardo , lecturer, Macquarie University.

Zanghellini Aleardo , ‘To What Extent Does the ICCPR Support Procreation and Parenting by Lesbians and Gay Men?’ (2008) 9(1) Melbourne Journal of International Law 125.

Ibid

Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007) <yogyakartaprinciples.org/principles_en.htm> at 20 August 2010.

Ibid. Group includes judges, academics, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, NGOs and others.

Zanghellini , above n 17.

Reproductive Technology (Clinical Practices) Act 1988 (SA) s 13(2). Note the Act was amended by Reproductive Technology (Clinical Practices)(Miscellaneous) Amendment Act 2009 (SA) on 1 September 2010; now called Assisted Reproductive Treatment Act 1988 (SA).

Pearce v South Australian Health Commission (1996) 66 SASR 486.

Australian Constitution s 109.

Assisted Reproductive Treatment Act 1988 (SA).

Assisted Reproductive Treatment Act 1988 (SA) s 9(c)(i). SA Health states infertility ‘usually means 12 months of unprotected intercourse’: SA Health, Fact Sheet 1: Access to ART at a registered clinic in South Australia, <sahealth.sa.gov.au/> at 8 November 2010.

Assisted Reproductive Treatment Act 1988 (SA), s 9(c)(ii).

Reproductive Treatment Act 1988 (SA) s 9(c)(iii).

Reproductive Treatment Act 1988 (SA) s 9(c)(iv).

SA Council on Reproductive Technology, Eligibility fact sheet: Reproductive technology legislation and regulation in SA. (No longer available, SA Dept of Health website).

Reproductive Treatment Act 1988 (SA) s 15(1).

Two parliamentary inquiries on this topic were conducted in 2010: See Parliament of Australia Senate Committee Inquiry into Donor Conception in Australia, <aph.gov.au/senate/committee/legcon_ctte/donor_conception/index.htm> at 9 August 2010; Parliament of Victoria Law Reform Committee Inquiry into Access by Donor-Conceived People to Information about their Donors, <parliament.vic.gov.au/lawreform/inquiry/241> at 9 August 2010.

Family Relationships Act 1975 (SA) s 10F: A surrogacy contract is one under which a person agrees to become pregnant or to seek to become pregnant; and to surrender custody of, or rights in relation to, a child born as a result of the pregnancy; or a person who is already pregnant agrees to surrender custody of, or rights in relation to, a child born as a result of the pregnancy.

Family Relationships Act 1975 (SA) s 10G: Surrogacy contracts are illegal and void.

Statutes Amendment (Surrogacy) Act 2009 (SA).

Statutes Amendment (Surrogacy) Act 2009 (SA) s 10. This section inserts a new provision into the Family Relationships Act 1975 (SA) which provides for such surrogacy agreements to occur. (Family Relationships Act 1975 (SA), ss 10G(4) & 10F).

Statutes Amendment (Surrogacy) Act 2009 (SA) s 9. Amends Family Relationships Act 1975 (SA) by inserting s 10G(4)

Adoption Act 1988 (SA) s 12(1). In special circumstances a lesser period will suffice: S 12(2).

Adoption Act 1988 (SA) s 12(3).

Family and Community Services Act 1972 (SA), s 6.

For detailed discussion, see Qld Govt, Review of the Legal Status of Children Being Cared for by Same-Sex Parents (August 2009); Victorian LRC, Assisted Reproductive Technology and Adoption (March 2007); Tobin John , The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction (2004) viii (Occasional Paper Commissioned by VLRC).

Family Law Act 1975 (Cth) s 61D.

Qld Govt, above n 41, 2.

McNair Ruth , Outcomes for Children Born of ART in a Diverse Range of Family Types (2004).

Short Elizabeth , Lesbian, Gay, Bisexual and Transgender (LGBT) Parented Families: A Literature Review Prepared for the Australian Psychological Society (2007).

Tobin , above n 41.

Ibid 28.

Ibid.

Ibid.

Ibid.

Qld Govt, above n 41; HREOC, Same-sex: Same Entitlement (May 2007); VLRC, above n 41; NSW LRC, Relationships (June 2006); and Tasmanian Law Reform Institute, Adoption by Same-Sex Couples (May 2003).

Family Law Act 1975 (Cth) s 60H(1)).

Family Law Act 1975 (Cth) s 60(H)(1)(d).

Family Law Act 1975 (Cth) s 60HA.

Family Law Act 1975 (Cth) s 60HB.

See Law Officers Act 1964; Customs Act 1901; Service and Execution of Process Act 1992; Witness Protection Act 1994; Export Market Development Grants Act 1997; Family Law Act 1975 (Cth); Sex Discrimination Act 1984; Research Involving Human Embryos Act 2002.

For a detailed discussion see Millbank Jenny , ‘Defacto Relationships, Same-sex and Surrogate Parents: Exploring the Scope and Effect of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 21.

Qld Govt, above n 41; HREOC, above n 51; VLRC, above n 41; NSW LRC and Tasmanian Law Reform Institute, above n 51.

Status of Children Act 1996 (NSW) s 14(1A); Status of Children Act 1974 (Vic) s 13; Artificial Conception Act 1985 (WA) s 6A; Status of Children Act (NT) s 5DA; Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1974 (Tas)10C(1A); Status of Children Act (Qld) s 19C–19E.

Ibid.

Millbank , above n 57.

Standing Committee of Attorneys-General Joint Working Group, A Proposal for a National Model to Harmonise Regulation of Surrogacy (January 2009).

Assisted Reproductive Treatment Act 2008 (Vic); Status of Children Act 1974 (Vic).

Surrogacy Act 2010 (Qld).

Parentage Act 2004 (ACT).

Each jurisdiction has other criteria that must be met before entering into a surrogacy agreement (eg, age of surrogate, counselling, gestational versus partial surrogacy) however this is beyond the scope of this article.

Surrogacy Act 2008 (WA) ss 19(1)(i) & (2).

Adoption Act 1993 (ACT) ss 14–16.

Adoption Act 1994 (WA) ss 39–50.

Adoption Act 1988 (Tas) s 20(1).

Adoption Act 2000 (NSW) ss 23(1), 26; Adoption Act 1993 (ACT), s 18(3).

Adoption of Children Act (NT) s 12(1), (2).

Adoption of Children Act 1964 (Qld) s 12(1), (3).

Legislation Act 2001 (ACT) 169(2).

Young Persons (Care and Protection) Act 1998 (NSW).

Anti-Discrimination Act 1977 (NSW) Part 4C.

‘Reproductive tourism’ refers to travelling interstate or overseas to access ART or engage in surrogacy arrangements because the person cannot do so in their own jurisdiction.