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Discussions and agreements with prospective co-parents

It is absolutely critical that everyone involved in discussions about creating a co-parent family is very clear about what they want, and that it is what everyone wants. It is also important to understand the law in relation to co-parent families.

See Exploring co-parenting with a lesbian couple or single woman and below.

Discussions with prospective co-parents

It is critical to be very clear (including with each other, if you are a couple) on what you want before beginning negotiations with the prospective mother/s. What is your ideal? What is negotiable, and what is not? Your ideas might change, but it is important to begin by clearly communicating them, so that your prospective co-parent/s can think about where your vision coincides with theirs, and where it might differ. If you are all clear with each other, there is less likely to be confusion that can lead to conflict.

It is a good idea for everyone intending to create a co-parent family to make a written agreement, even though it is not legally binding. Australian law does not allow you to make a legally-enforceable contract or agreement about a child, written or verbal. We recommend each of the ‘parties’ – mother/s and father/s – seek separate legal advice on what will work for you all before making any decisions or attempting conception. This advice can inform your discussions, and the agreement you make about your intentions.

Agreements can be very useful as a record of your intentions and what you agreed to at the time. Some people make their agreement, then put it in a drawer and never look at it again. Many find their agreement a very useful tool, and revisit it when they conceive, when their child is born, when it comes to trying for any subsequent children, and when any major life changes happen that have possible implications for the relationship (such as someone moving interstate or overseas). And in a conflict, a written agreement demonstrates your intentions, which might be one (but certainly not the only) factor a court would consider.

Most people make agreements that are legally clear in language, but heartfelt. Think about how your children might feel if they read it, as they may well do later in life. The most valuable thing an agreement can do is encourage you all to sit down and talk about the important issues. Your agreement should clearly state all your intentions, and what each person’s role will be.

A key part of the agreement relates to how you negotiate changes, and what you will do in case of conflict. The only certainty in life is change. Children change, people’s circumstances change, and so do their feelings. The feelings of everyone involved – including children as they grow – will inevitably change over time. This does not mean that your arrangements will shift, although they often do. The key is to agree on clear processes to negotiate change, and to deal with conflict (such as through a counsellor or mediator), so that whatever happens you can stay out of court.

Specific topics to discuss

There is so much to discuss with your prospective co-parents, and it is easy to get pre-occupied with your dreams of family and forget about some of the nuts and bolts issues. It is absolutely critical not to dodge the more challenging discussions, in particular.

Issues to discuss and perhaps include in an agreement include:

  • How you will attempt conception: the options include home insemination with fresh semen, home insemination with sperm ‘donated’ to the woman or couple through a fertility clinic, and clinic-based insemination (or other fertility treatment, such as IVF, if needed due to fertility problems in the intending biological mother, father or both). Remember that you will need to be available at short notice if you are using fresh semen for home insemination. The processes are exactly the same as for known donors, so please read the detailed information on ‘The process of donating’ under Information for prospective sperm donors.
  • Fertility: consider having a sperm test early in the process, as problems are not uncommon. If you are a couple, and the intending biological father has fertility issues, then the other man may consider taking this role. If this is not possible, you might need to explore other methods of conception such as IVF; talk to a fertility specialist. There are also diet and other lifestyle changes that the intending biological father and birth mother can make to support your changes of conception.
  •  Health screening: insemination with fresh semen carries similar risks of infection to unprotected sex. You should be tested for gonorrhoea, chlamydia, HIV, syphilis, Hepatitis B and Hepatitis C and CMV (cytomegalovirus), plus blood group and antibody tests. If you or your partner are exposed to any risk of infection, you must re-test, to ensure you do not put the prospective birth mother, her partner or the baby at risk.
  •  What if you need to use IVF? Does anyone involved have issues with IVF, for example if there are unused embryos at the end of the process? What will you do if there is a likelihood of your unborn child having a profound disability or serious medical issue? People can have very strong (and different) feelings about such things.
  • Everyone’s different roles and needs for support during the processes of attempting conception, pregnancy, birth, breastfeeding (if you choose to, and the birth mother can breastfeed) and early infancy. Talk about the values that might inform your choices during these early stages, for example with regard to birth, breastfeeding or sleeping. You will probably all need to research, think about and discuss these things much more deeply than most parents before your baby is born, to ensure that the choices you make work for all of you.
  •  Where a child will live, and how the arrangements will change over time. A child’s needs change enormously from birth to six months and beyond. What co-parenting looks like for a child under six months or a year may be very different from when they are 18 months old, four years old, and so on.
  •  How will you make decisions about your children’s lives, for example about things like educational choices, healthcare, religion and spirituality, and all aspects of your children’s upbringing?
  •  What will your financial arrangements be? Who will be financially responsible for the child? You will also need to be clear about inheritance, superannuation, insurance and wills, including specifically naming children in your will if you are not their legal parent (see under ‘Recognising parentage’).
  •  Financial power and support. The reality is that the income and wealth gap between men and women is still very wide in Australia. If there is financial support involved, including sometimes the purchase of a home, it is particularly important to put all arrangements in writing, including what will occur if you get into conflict. It is important to seek legal advice around these kinds of arrangements.
  • The role of non-biological co-parents. Try to involve all parties in the discussions – for example the prospective birth and non-birth mothers, and the prospective biological and non-biological fathers. It is easy for non-biological co-parents to feel marginalised at this stage, and throughout the process.
  • If one or both co-parents are single. People’s lives can change in many ways. One of the biggest issues for co-parents can be is if one or both later partner with someone they want to parent with; this can be very challenging for everyone involved, including the new partner.
  • Will you involve your families of origin, and to what extent? This is a major issue for many LGBTI people, who might have had to deal with their parents’ feelings (on coming out) that they are unlikely to be grandparents. Some extended families might continue to be homophobic, and it can be difficult to know what to do then. But people can and often do change, especially when it comes to children and grandchildren.
  • Ensure you understand the legal requirements with regard to the birth certificate and registering information about the child’s biological origins, and spell them out in the agreement.
  • Have agreed processes (such as seeing a counsellor or mediator) for negotiating changes in life circumstances. What if someone wants to move, including interstate or overseas? What say might the child/ren have, when they are old enough to have an opinion? Make sure you have processes for negotiating changes in your arrangements, and dealing with any conflict that may arise.

Recognising parentage

At present, the law does not allow for equal recognition of more than two legal parents. Both Victorian law, through the Status of Children Act, and federal law say that if a child is born through a treatment procedure (including home insemination), then the birth mother (and her partner at the time of conception) are the legal parent/s, and able to be listed on the birth certificate. To list anyone else is to make a ‘false declaration’. The exception is if the child is conceived via sex between the mother and biological father, in which case they are both legal parents and not the non-birth mother (if there is one).

The role of co-parents other than the legal parent/s can be recognised via court parenting orders by consent (without a conflict arising – see below). The biological origins of a child conceived via a treatment procedure (including through a clinic or home insemination) must be registered by the Victorian Registry of Births, Deaths and Marriages. Contact the Registry for more information about your situation.

Prior to the recent reforms, some co-parent families chose to list the biological mother and father on the birth certificate. This is no longer a legal option. Historically, however, many have chosen to list the birth mother on the birth certificate, and seek parenting orders for the other co-parents. One reason for this is because listing the biological father on the birth certificate would have created implications for social security, tax and other matters that may not fitted the family’s needs.

It is important to note that if a conflict arises, legal parentage is only one factor in determining the outcome. A court can award full residence and parenting responsibilities to parties other than the legal parents. See If relationships break down, and seek legal advice about your situation.

Court parenting orders

You should seek legal advice about your situation, including which adults (even if there is no dispute) require court parenting orders (in this case called ‘consent orders’) to legally recognise their role/s. All parties who have parenting responsibilities under court order are, along with a child’s legal parent/s, required to give their consent for a child to obtain a passport. Parenting orders can include most of the rights and responsibilities of legal parentage, but end at age 18, and don’t include things like inheritance and superannuation in most situations. So it is important for those who require parenting orders to, for example, ensure they specifically recognise children in their wills and seek legal advice about choices in relation to making financial provision for children (including a choice not to make provision, which may be subject to legal challenge in very limited circumstances, even if you are not a legal parent).

We strongly recommend that each of the ‘parties’ – mother/s and father/s – seek separate legal advice on what will work for you all before making any decisions or attempting conception.

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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).