Two mums and a bub

If you are a lesbian in a same-sex relationship and have had a baby or are planning to, you are probably wondering what steps you need to take to ensure that both parents are legally recognised.
In NSW parenting issues are regulated by the Family Law Act. The legislation does not define the term “parent” but it is clear that only a biological or adoptive parent can be a legal parent. A donor is not a biological parent unless the child is conceived via intercourse. Therefore, as a lesbian couple with a baby your child has only one legal parent.
Adoption by the non-biological parent is not generally a viable option as a lesbian can only adopt as a single mother. This means that if the non-biological mother adopts the child, the birth mother is replaced and is no longer a legal parent. However, there are a number of ways lesbian couples can overcome this situation.
The biological mother should ensure she has a current will which clearly states her wish for the co-mother to be the guardian of the child in the event of her death. While a will is not legally binding it is evidence of your intentions and will be considered by the court in the event it is challenged.
Legal recognition of the co-mother’s relationship to the child can be obtained via an application for parenting orders in the Family Court. This means you ask the Court to make an order stating you both have equal shared parental responsibility for your child. This grants the co-mother all the duties, powers, responsibilities and authority that a legal parent has. At the same time you can seek other orders which complement your situation, such as that your child is to live with both of you.
As part of the application process, a form must be completed and each parent must provide evidence to the court in the form of a short affidavit detailing their relationship, the circumstances of conception and the current arrangements for the child. Where the donor is known the court will generally require evidence they support the application.
You should seek legal advice about the best way to obtain consent orders and you can do this through one of the Inner City Legal Centre’s experienced family law practitioners. Also remember that a significant consideration for the court in making consent orders will be the best interests of the child. This often means that parental stability and longstanding involvement will carry much greater weight than the gender of the parents.
For further information see: Human Rights and Equal Opportunity Commission, Same Sex: Same Entitlements Report 2007, www.hreoc.gov.au/human_rights/samesex/report/index.html; Attorney General’s Department of NSW, Understanding Your Legal Rights: A Guide for Lesbians and Gay Men in NSW, www.lawlink.nsw.gov.au/samesex; Inner City Legal Centre, Talking Turkey: A Legal Guide for Lesbian Mothers & Sperm Donors in New South Wales, www.iclc.org.au/talking_turkey.
This column is an initiative of the NSW Young Lawyers Human Rights Committee. If you have any questions about this column, or would like information on a particular area of law, you can contact us on [email protected].