Daddy dearest

Daddy dearest

The other night I attended a Gay Dads information night. We have information nights regularly, but I usually find an excuse not to attend.
I offered to open up the rooms for the chair and now I’m glad I went. I actually learnt something.
In a varied group like gay dads where some of us have had children through marriage while a large contingent contemplate surrogacy, the rules on who actually holds parental responsibility is enough to make Tony Danza’s hair go curly.
Because I had children in a marriage and am on the birth certificate I am the legal parent and hold parental responsibility with Dawn. Done and dusted. We may disagree on making Chicky eat his greens or debate which school to send Beau to, but I legally get a look in.
Surrogate daddies need to get court orders to make these sorts of decisions. In Australia, if you entered into an altruistic surrogacy arrangement (where no money changes hands) the birth mother and her partner, married or de facto, are considered legal parents. To then be considered to have parental responsibility, the gay couple needs to apply to the Family Court to get a court order.
You need them for admitting children to hospital (a very obvious one), broccoli enforcement and Catholic school choices.
Currently surrogacy laws in Australia are not very advanced, and they vary from state to state. Law reform is on the way, but it takes time.
Entering into an overseas commercial surrogacy agreement changes outcomes again. Some jurisdictions have birth certificates listing a same-sex couple as parents. To avoid your good intentions being lost in translation coming home, it’s best you seek legal advice before doing anything to ensure you have all your ducks lined up for Family Law reasons in Australia.
As with most things related to the Family Law Act, decisions in court are made based on the best interests of the child.
In the context where previously married gay dads are dealing with court orders, the sexuality of the parties may play a factor in the court’s decision-making. Hence we even discussed the circumstances in which your children live, for example, not embarrassing your kids by extreme dress sense, style, actions… some kids just can’t deal with it. You’re forcing a court order on them — for whom? You? It can get quite controversial.
The legal nooks in all of this make heavy reading, however, there is some great support around.
You can reference material at www.iclc.org.au and talk to a friendly person at Inner City Legal Centre on 9332 1966.

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5 responses to “Daddy dearest”

  1. The person who wrote this piece is not a lawyer. He went along to the Gay Dads group and wanted to share what he got out of it. It’s a bit mean to criticise him about some omissions in his piece which may have made the distinction between the position in NSW and other places where the laws are a bit more advanced. I think the main theme of the piece is that it is a complex area of law and it is best to get some specialist legal advice before entering into any arrangement. Realistically though, for most gay male couples accessing state based legislation such as in WA or ACT will probably not be an option because they are more likely to have a child via a commercial arrangement overseas, which will require an Application to the Family Court regardless of where they live. But thanks to Ghassan clarifying the situation on behalf of the gay & lesbian community, and to the GLRL for its lobbying on this topic.

  2. Steve, NSW has no laws in relation to surrogacy currently in force.

    However, from 2010 the Assisted Reproductive Technology Act 2007 (NSW) will commence and altrustic surrogacy will mean that the surrogate mother was not paid a fee or reward.

    Unfortunately, the legislation is not clear on what medical or other costs related to the surrogacy arrangement will be legally payable to the surrogate mother.

    The NSW Gay and Lesbian Rights Lobby’s submission to the surrogacy inquiry explains the problems: http://glrl.org.au/images/stories/submission_to_surrogacy_inquiry.pdf.

  3. The article says: “In Australia, if you entered into an altruistic surrogacy arrangement (where no money changes hands) the birth mother and her partner, married or de facto, are considered legal parents. To then be considered to have parental responsibility, the gay couple needs to apply to the Family Court to get a court order.”

    The first sentence is true. The second is not. In some jurisdictions in Australia (ACT and soon Victoria), gay men do not need to go to the Family Court for parenting orders but their state courts for a transfer of parentage order under a surrogacy scheme if they satisfy other critera under that scheme.

    The sentence implies that if you have children through altruistic surrogacy in any state of Australia you need a Family Court order. That’s only the situation in those states which do not have a surrogacy scheme – hence my comment above. The sentence would have been accurate if it was phrased as “in NSW” – but it wasn’t – it purpoted to speak about the law in all of Australia .

  4. Whilst I appreciate this is an opinion column and is not supposed to be legal advice, the law in this article is wrong.

    Parentage schemes to recognise the intended parents are only available in WA, ACT and Vic. Qld and NSW are currently considering the issue, with Qld currently looking at two proposed bills – one which includes same-sex couples, the other which does not. The ACT and Vic schemes do not discriminate against same-sex couples.

    In NSW, there are almost no options for heterosexual couples – and definitely none for same-sex couples – to allow them to be recognised as a legal parent to a child after a succesful surrogacy arrangement. Both heterosexual and same-sex couples can go to the Family Court to get a parenting order, which recognises the child and his or her intended parents in certain respects e.g. residence, contact, parental authority etc. However, these parenting orders do not make the intended parents legal parents for the rest of the child’s life – they expire when the child becomes 18, do not confer equal rights to the child (e.g. in child support or inheritance law) and can be challenged at any time.

    I would expect the SSO to seek legal advice before it published incorrect legal information to the community which is already confused about its legal rights – particularly as they are currently in a state of flux. Very disappointing.

    Editor’s Note: The article refers to altruistic surrogacy arrangements, but does not refer to those jurisdictions which do not have laws in place such as in WA or the ACT. As NSW is one such jurisdiction without a mechanism to confer the status of legal parent on intending parents, the only option now available for same sex and opposite sex couples is to apply for parenting orders to the Family Court. For overseas arrangements, state or territory based laws such as in WA or the ACT do not apply, and couples in those overseas arrangements need to apply for parenting orders to the Family Court. Our advice is the article did not say anything wrong, and your comments deal with something else.