Teething problems

Would-be lesbian mums and potential gay dads have a new resource to check out when considering the potential legal minefield of same-sex parenting.

The new Talking Turkey website was created by the Inner City Legal Centre in Darlinghurst to answer some of the questions regularly asked by prospective parents.

In NSW only the biological mother has any automatic legal rights. In the case of lesbian couples with kids, the non-biological mother has no legal standing. Nor does the man who donated sperm, often a friend or acquaintance of the mother. So when lesbian parents break up, or the mothers have a falling out with the sperm donor, there’s not much the non-biological parent can do.

This is the predicament one Sydney lesbian couple now find themselves in. The women had a child through donor insemination, broke up and are currently fighting for custody of their three-year-old boy in the Family Court. The biological mother wants the child to live with her and give the non-biological mother contact once a fortnight. At present the two women (who cannot be named) share equal custody of the child, and the non-biological mother wants to keep it this way.

The Family Court verdict is eagerly anticipated, as it will set a precedent for what is expected to become a more common issue.  As more and more same-sex couples start having babies, the more potential there is for complicated custody battles in the future.

The problem is, a lot of lesbian couples and their sperm donors who enter into informal agreements -“ effectively starting a family on their own by their own rules -“ don’t anticipate the kinds of things that can go wrong.

The lawyer for the non-biological mother in the current case, Nici Clayhills, said this was a common issue for gay and lesbian parents.

And it’s because there aren’t the facilities, the advice, the institutional set-up to say -˜this is how it should be done’, Clayhills told Sydney Star Observer.

Most people don’t think about seeing a lawyer about having a kid. A lot of people learn the hard way.

Jenni Millbank, associate professor of law at Sydney University, agreed prospective lesbian mums and their sperm donors often didn’t think about the legal problems they could face in the future.

People are going into agreements often with people they don’t know that well, Millbank said.

Not often with complete strangers, but often with people who are not much more than casual acquaintances.

The trouble is, Millbank said, gay men and lesbians often did not have many options when it came to starting a family. Gay men were generally excluded from adoption and often needed a lesbian friend or couple to have children with. And many lesbians were barred from fertility services or preferred to not use unknown donors, so this type of informal agreement was their only hope.

The lesbians and gay men who got into these arrangements were often so excited at the prospect of impending parenthood they overlooked the conflicting desires of the other parties, Millbank said. For instance, the mothers might have said they wanted the father to have contact with the child once a month but the father might have thought they’d agreed upon access once a week.

For that reason I would say that everyone going through an informal agreement to have a baby should be writing down what their hopes and expectations are, Millbank said.

Most of that won’t be legally binding but it’s a really important process to go through to make sure everyone understands what their respective positions are and pulls out if they’re not in agreement.

Whatever arrangements were made before conception, people’s views and perspectives could change after the birth, Millbank said.

But at least if you start off from a clear platform at least you have some hope. If you’ve all got cross-purposes to start with it’s a disaster. What if the mums want to move away? Who gets to decide what the baby’s name is? What if someone decides they want to send the children to a Catholic school? It’s really important people are clear from the outset.

The Talking Turkey site (www.iclc.org.au/talking_turkey/) has draft documents available for people to download, to help biological and non-biological parents establish formal boundaries and rules.

Parents could also seek consent orders from the Family Court after the birth.

That’s an increasingly common mechanism that’s used, Millbank said.

A mother and co-mother can go before the court and ask for orders that they have shared parental responsibility. Those orders can also include a donor dad or involved man, so they can provide for him to have contact or some form of parental responsibility.

If a man has had extensive contact with a child the court was unlikely to change that, Millbank said.

Thankfully for non-biological parents, it looks like the laws in NSW may be about to change. The NSW Attorney General’s department is currently consulting with the NSW Gay and Lesbian Rights Lobby to reform the Status of Children Act. The reforms would give non-biological parents legal parenting rights.

Lobby co-convenor Julie McConnell believed a draft of the new law will be going before cabinet in the next fortnight. We’re looking forward to that being a reality, she said.

But no matter how many possible problems parents took into consideration, Millbank said at some point the child would get to have a say as well.

You can plan all you want but it can always turn out differently, she said.