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Options for ongoing contact

This is such a new option for gay men (predominantly) to become legal parents in Victoria, we are yet to see what relationships egg donors and surrogates form with the families they helped create. There are other families whose experience might provide some guidance.

Historically, same-sex couples have tended to be more open with their children about the circumstances of their conception than heterosexual couples; after all, it is obvious that same-sex couples needed some help to create their families! If you had a prior relationship with the prospective father/s – or even if you did not – you might or might not want to have ongoing contact with the family. They will probably have their own ideas about whether they would like to have ongoing contact with you, as the egg donor or surrogate, after you have helped them create their family. This is something you should discuss in detail and agree on before you decide to go ahead. Read the information for prospective sperm donors to see what issues might apply to you, what you should discuss, and what you might consider including in a written agreement.

As mentioned, altruistic surrogacy in Victoria is a new option for gay men. It remains to be seen what choices men who create their families in this way will make around ongoing contact with their donor and/or surrogate. Many couples who conceive through overseas surrogacy choose to have ongoing relationships with their surrogates, at least, such as exchanges of emails and photographs, and perhaps the occasional visit. Some have contact with their egg donors, but this may not be an option if egg donation in that country is generally anonymous. The relationships between men and their Victorian egg donors and surrogates might well be different; because they live in the same country, because these roles are altruistic father than paid, because there is usually a pre-existing relationship, or at least some contact before, and because of the laws around release of donor information.

One possible parallel is the variety of relationships that lesbian couples and single women create with their donors. Some known sperm donors are just happy for the child/ren to know their name, see their photos, and perhaps meet up when the child/ren are old enough to show an interest. Some live in another state or country, and exchange cards, emails, Skype chats and perhaps the occasional visit. Some visit a few times a year, others more often. Some become part of family life, spending regular time, perhaps holidaying together and becoming regular baby-sitters. Some children call their known donor ‘Dad’, even though the man (and his partner, if he has one) does not share parenting responsibilities and is not a legal father or parent. Some do not. The diversity of people’s choices is endless.

It is important to bear in mind how family law works in Australia. The commissioning parents of a child conceived via altruistic surrogacy in Victoria are their child’s legal parent/s once the transfer of parentage is complete. However, anyone with ‘an interest’ in a child’s welfare (such as a grandparent, step-parent, donor or surrogate) can apply for a court order creating contact or other arrangements with regard to the child. Whether you are the egg donor or surrogate, you can make an agreement with the parent/s about a whole range of issues, and we recommend that you do. See the discussion for sperm donors about making agreements above, for issues to consider. However, these agreements are not legally binding, should there be a dispute. You cannot make a legally-enforceable contract or agreement (written or verbal) about a child.

If a dispute arose, a court will not change who is recognised as a child’s legal parents (once the parentage has been transferred – see above), but it will make its judgement – on things like who has contact with a child, who lives with them, and who makes decisions about their lives – on the facts of the case, and what they see as a child’s best interests. Courts can award contact, and in some circumstances even some parenting responsibilities, to someone other than the legal parents, if they think this is in a child’s best interests.

We are a volunteer community organisation based in Victoria, Australia. We support and promote equality for ‘rainbow’ families (parents and prospective parents who identify as lesbian, gay, bi, transgender or intersex, and their children).