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Legal parentage and other roles

The 2008–2009 reforms changed the legal situation considerably, in terms of clarifying the legal status of donors and recognising lesbian parents as their children’s legal parents.

Single women who conceive with a known donor

If you are a single woman who conceives with a donor, you might well plan to raise your child on your own, without their involvement. Historically, some women have chosen to list their known donor on their child’s birth certificate. This is no longer a legal option. Since the recent Victorian reforms, only the mother (and her partner if she has one) are the legal parents, and thus able to be listed on the birth certificate. To list your child’s donor as a father is to make a ‘false declaration’.

Although he is not listed on the birth certificate, your donor may still have a role – including a significant one – or some contact, in your child’s life. You might explore the idea of recognising this role through court parenting orders by consent.

If relationships break down and a dispute comes to court, it is possible that a court would grant the donor some contact with your child. It is important to know how family law works in Australia. You will be your child’s legal parent, but anyone with ‘an interest’ in a child’s welfare (such as a grandparent, step-parent or known donor) can apply for a court order creating contact or other arrangements with regard to the child.

Since the recent reforms, Victorian law, in the Status of Children Act, is very clear that a donor is not a legal father or parent. However both Victorian and federal law come into play, should there be a dispute that comes to court. The federal Family Law Act is ‘silent’ on the question of donors to single women, only severing the parental status of donors where there is an ‘other intended parent’.

It might be possible, if a dispute reached court, that your donor might seek to be recognised as a legal parent. It is yet to be tested what a court would decide if this was the case. This does not mean that a court would grant your donor parental responsibilities, especially if he has never had them. Legal parentage is only one factor in a court’s decision about issues like who should have contact with, live with and make decisions for a child. However, it is possible that even if a court did not grant parental status, they might grant your donor some contact with your child should he seek it. We highly recommend you seek legal advice on this issue.

What if you enter a relationship after your child’s conception or birth?

If you enter a same-sex relationship after your child’s conception or birth, your partner is not considered their legal parent. She can be recognised as a step-parent, and her role can be recognised through a court parenting order if desired. Should there be a dispute, she can apply for a court parenting order as a ‘significant person’ in the child’s life.  Stepfamilies Australia and your local legal service can tell you more about step-parents’ legal rights and responsibilities.

Lesbian couples who conceive with a known donor

If you are a lesbian couple who conceives your child with a donor, you are presumed to be their legal parents, provided you were in what Victorian law defines as a ‘domestic partnership’ and federal law a ‘de facto relationship’ at the time of conception, and the non-birth mother consented to the ‘treatment procedure’/’artificial conception procedure’ that resulted in conception. Please note that this covers home insemination, but not sex with your donor. In the latter case, the donor is a legal parent, not the non-birth mother – children cannot have more than two legal parents. A donor will not be held liable for child support or maintenance, and children have no rights to his estate or superannuation (except in very limited circumstances).

Recognition of lesbian parents includes couples who were together when a child was conceived, but separate prior to or after the birth. The recognition extends to grandparents and other family, who are now legally related to the child through the non-birth mother, for example in relation to inheritance rights.

Both mothers can now be recognised on Victorian birth certificates; the birth mother will be listed as ‘mother’ and the non-birth mother as ‘parent’. Children can also now have older siblings who have the same parents recognised on their birth certificates. If you have children conceived prior to the ART Act came into effect, please read Recognising pre-existing rainbow families for how you can have their birth certificates corrected.

Since the recent reforms, only the birth mother, and her partner if she has one (the non-birth mother) can be parents, and therefore listed on the birth certificate. To list anyone else (such as a known donor) is to make a ‘false declaration’. Read Law changes and existing families for how you remove a known donor’s name from a certificate and insert the non-birth mother’s name instead (you cannot list all three). See below for Options for legally recognising the role of your child/ren’s donor in your family’s life.

What parentage means under federal law

The federal reforms that came in during 2008 and 2009 included amendments to a number of laws, including those covering maintenance, child support, parental rights and responsibilities, social security, tax, Medicare and superannuation.

Federal law automatically recognises lesbian couples as their children’s legal parents, provided that the couple were in a ‘de facto’ relationship (as defined by the law) at the time, and that the non-birth mother consented to an ‘artificial conception procedure’ (including home insemination) that resulted in conception. The federal changes are retrospective; that is, they apply regardless of whether your child was conceived before or after they came into effect.

This means, for example, that if your relationship breaks down, you both remain equal legal parents, with responsibilities including maintenance and child support. Many more rights and responsibilities arise from these reforms – see our links section for where to find out more about the federal reforms.

The legal status of donors

Since the recent reforms, Victorian law, through the Status of Children Act, and federal law are clear that a donor is not a legal parent, although as discussed, this is in the context of there being an other ‘intended parent’ (the non-birth mother). However, federal family law also allows for the recognition of relationships a child has with people other than their legal parents. Therefore, although the donor is not a legal parent and cannot be on the birth certificate, his role in your child/ren’s life can be legally recognised, for example through a court order by consent (without a dispute having arisen), to cover things like the agreed level of contact. See ‘Find out more about’, below.

There are costs associated with consent order, and many families are happy with their own informal agreement, including a process for negotiating changes if needed, and for resolving any conflicts that may arise.It is a good idea to make your own agreement about the role your donor (and his partner, if he has one) will have in your family life, although such agreements cannot be legally binding. See below, under ‘Known donors: making decisions and writing agreements’ for issues your agreement might include.

In addition, children born via a fertility procedure (whether conceived via a clinic or home insemination) must have their biological origins registered by the Victorian Registry of Births, Deaths and Marriages. Thus the details of the child’s biological father (legally the donor) will be included in the child’s birth record (but not on their certificate) if they were conceived by home insemination, or in the Central Donor Register if their were conceived via a clinic.

As mentioned, family law allows anyone with ‘an interest’ in a child’s welfare to apply for a court order creating contact or other arrangements with regard to the child. In the event of a conflict, a donor could seek such an order. See ‘If relationships break down’ below.

Couples and single women who conceive with co-parent/s

Some lesbian couples and single women are interested in co-parenting with their child/ren’s biological father (and his partner, if he has one). Co-parenting means sharing all significant parenting responsibilities, such as living with the child (whether in one household or two) and making decisions about things like the child’s education, spirituality/religion and daily life. See Exploring co-parenting.

At present, the law does not allow for equal recognition of more than two legal parents. Since the federal and Victorian reforms, a child’s legal parents are the birth mother and her de facto/domestic partner at the time of conception, if she has one. The exception is where a child is conceived through sex between the biological mother and father, in which case they are the legal parents. Co-parents who are not legal parents can have their role legally protected through consent orders.

Some co-parent families have historically listed the biological mother and father on the birth certificate. This is no longer a legal option. To list anyone other than the legal parent/s – the birth mother and her partner if she has one – is to make a ‘false declaration’.

Even before the law changed, many co-parent families chose 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 have 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. For more discussion, see ‘If relationships break down’ in the information for prospective lesbian parents and prospective gay male parents, and always seek legal advice about the specifics of your situation.

You should also seek legal advice in regard to obtaining court parenting orders to legally recognise the role of co-parents who are not legal parents. People who have parenting responsibilities under court order are, along with the 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 by name 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 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.

More on legal advice and parenting orders

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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).