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 and talk to a friendly person at Inner City Legal Centre on 9332 1966.

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