The rights and best interests of children

In Victoria, not all children are treated equally. Discriminatory laws don't stop people from creating loving homes and families. They just undermine the rights of children living in those families.

Here are ten reasons why law reform is needed to support the rights of children in rainbow families:

  1. There is no legal protection of the relationship between children in rainbow families and their non-biological parents or siblings. Addressing this issue will protect children's family relationships if, for example, their biological parent dies.
  2. Children cannot receive entitlements such as workplace or transport accident or crimes compensation, nor their non-biological parent's estate or superannuation.
  3. Children's non-biological parents are not held to the same legal obligations as other parents, for example to provide for their care and basic needs, to ensure they attend school or to pay maintenance if the child no longer lives with them.
  4. Children's non-biological parents cannot consent to school excursions, nor can they consent to emergency medical treatment, such as a blood transfusion, if their child is sick.
  5. Children's non-biological parents cannot take action on behalf of their child, for example to make a complaint about discrimination or family violence.
  6. Children's non-biological parents do not have the right to be consulted on proceedings concerning their child's care and welfare, nor to be present if their child is being questioned by police. 
  7. Lack of access to fertility services increases the health risks to prospective birth mothers and children from the use of unscreened donations for home insemination.
  8. Lack of access to fertility services forces some prospective parents to travel interstate or overseas, to jurisdictions that may not protect children's right to information about their biological origins.
  9. Lack of consistency between state and federal laws put family stability in jeopardy, particularly in relation to the lack of clarity of the legal status of donors, and the privileging of biology over actual family relationships.
  10. Thirty years of Australian and international scholarly research shows that children in rainbow families are in no way disadvantaged by their parents’ gender or sexual identity. Their only disadvantage is social prejudice, which is reinforced and pandered to by discriminatory laws.

    Family Court parenting orders can help with some of the issues listed, but represent nothing like full equality; they can be rescinded by the Court, they cover a limited range of practical issues, and do not carry the legal weight nor social recognition of legal parentage.

    In his Occasional Paper prepared for the VLRC, John Tobin, legal expert on the UN Convention on the Rights of the Child found that:

    ‘Same-sex parenting is not contrary to the rights or best interests of the child and there is no legitimate basis on which to deny same-sex couples access to adoption or ART when this matter is viewed from the perspective of the rights of a child...’

    and indeed that the failure of current laws to recognise both same-sex parents discriminates against children in several respects.

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