Campaign aims
These are the key reforms advocated by the Rainbow Families Council through its Love Makes a Family Campaign, and supported by the Victorian Gay and Lesbian Rights Lobby.They arose from broad community consultations, including in response to interim recommendations of the VLRC Enquiry.
1. Recognise family relationships
Victorian law does not recognise any legal relationship between children in rainbow families and their non-biological parent/s, and in many cases between siblings or to extended family.
Recognising and protecting these relationships will promote stability, minimise potential for disputes, ensure children’s entitlements (eg to workplace, accident or crimes compensation or to their non-biological parent’s estate) and ensure that all parents are subject to the same parental responsibilities and legal obligations.
The Victorian Government should:
- Automatically recognise the family relationships of children born to same-sex parents, whether conceived through a fertility service or home insemination, within or outside Victoria
(including overseas) and before or after legislation is amended. This will provide equality with heterosexual-parented children conceived using donated eggs or sperm. - All families, whatever their time, place and method of creation should be treated equally. There should be a universal presumption of parentage, with consent to parentage shown via the birth certificate.
- Recognise and protect diverse family formations amongst rainbow families and the wider community. This might include, for example, recognising that some children have more than two parents, or that a child’s donor, while not a parent, might be a special person in their life.
- Clarify that a sperm or egg donor is not a parent – whether they donated through a clinic or home insemination – and thus not subject to parental responsibilities and obligations.
2. Open up access to adoption
The Victorian Government should remove discrimination against same-sex
couples in adoption law, which will benefit children by:
- Providing a means to protect a parental relationship between children and their biological parent’s same-sex partner, where the relationship begins after the child’s birth.
- Enabling children to be adopted by their same-sex foster parents, if they come up for adoption.
- Enabling children to be adopted by same-sex couples in their extended family (for example their aunts, uncles or grandparents) if their parents die or are unable to care for them.
- Providing children in need with a greater range of potential adoptive parents (including adoption of foster children and children with special needs, and overseas adoption).
3. Provide equal access to Assisted Reproductive (fertility) services
The Victorian Government should remove discrimination based on marital status and sexual orientation in accessing fertility services such as donor insemination and clinic-donated sperm and eggs. Benefits to children will include:
- Protecting children’s right to information about their biological origins. Restricted access forces prospective parents to use interstate and overseas services where this is not guaranteed.
- Decreased risk of potential disputes. Some couples would prefer to use clinic-donated sperm or eggs, but cannot access services nor afford to travel, so may enter into less-than-ideal private donor arrangements. These can carry a risk of potential disputes and may not guarantee a child’s right to information about their biological origins.
- Decreased health risks to children and women from insemination with unscreened sperm.
Access issues are compounded by some clinic practices. For example, some clinics allow anonymous sperm donors to refuse to allow same-sex and single prospective parents to use their donations. Yet donors are not given the option of such a refusal based on race, ability, religion or other criteria, only sexual orientation and relationship status.
Changing this practice will help address the chronic shortage of clinic donors, a key concern for the tight-knit rainbow parenting community.
In addition, clinics bar gay and bisexual men from becoming clinic donors and discourage those with known donors from using clinics, by effectively screening for sexual orientation rather than high-risk activity. Changing this will help address the donor shortage and encourage women and couples with known donors to use clinics, decreasing health risks from unscreened sperm.
4. Decriminalise home insemination
Insemination outside a fertility service is a crime in Victoria. No one has ever been prosecuted, however the effect is to discourage prospective parents from seeking appropriate medical or legal advice, and health services from providing information, screening and other support.
The Victorian Government should decriminalise home insemination and clarify that self-insemination
is lawful. This will increase women’s control of their fertility, decrease health risks to women and children from unscreened donations, and decrease the risk of women undergoing unnecessary medical procedures.
In addition, the Known Donor Self-inseminationprogram, currently offered by Melbourne IVF, must be allowed to continue.
5. Legislate to allow altruistic surrogacy
Victorian law outlaws commercial surrogacy and effectively bars access to legal altruistic surrogacy, by requiring that a woman who wishes to act as a surrogate must be infertile to access the fertility services (usually IVF) required. This does not stop people from engaging in altruistic surrogacy, but leaves those involved (particularly children) without legal protection and open to potential exploitation.
The Victorian Government should allow altruistic surrogacy for prospective parent/s who could not otherwise conceive, including gay male couples, who have few other options to become parents. Women’s medical and associated expenses and lost earnings should be covered as remuneration,
but they should not be paid for acting as surrogates.
Legal parentage should pass from the surrogate – with her consent – to the commissioning parent/s through adoption within a month of birth. Support services should be provided to all involved, and children be guaranteed access to information about their surrogate as they would about a donor.
6. Allow the import and export of gametes
The Victorian Government should allow import and export of gametes of known donors, where this would not compromise a child’s right to information about their origins. For many same-sex parented families, using the same known donor to complete their family is important, even if the donor has moved interstate or overseas.
7. Provide training for service providers in the specific needs of same-sex parented families.
The Victorian Government should take into account the training needs of service providers including counselling staff at fertility clinics, General Practitioners, Legal Aid and family lawyers in implementing the recommendations of the VLRC Enquiry.
