Lesbian couples with children conceived before the reforms came into effect can now amend their children’s birth certificates to recognise both mothers. Children of the same parents can also have older siblings recognised on their birth certificates.

 

Victorian law

Lesbian couples are now assumed to be their children’s legal parents, provided they were in a ‘domestic partnership’ (the Victorian legal equivalent of what federal law calls a ‘de facto’ relationship – see below) and the non-birth mother consented to the ‘treatment procedure’ (including home insemination) that resulted in conception. This includes couples who separate prior to the birth. This recognition extends to grandparents and other relatives of the non-birth mother. The Victorian Status of Children Act 1974 states that a child’s donor, known or clinic-recruited, is not a parent (see below).

Lesbian couples with children conceived before the reforms came into effect can now amend their children’s birth certificates to recognise both mothers. The birth mother is listed as ‘mother’ and the non-birth mother as ‘parent’. Birth certificates provide important documentation to assist with, for example, giving consent for medical treatment or school excursions. Children of the same parents can also have older siblings recognised on their birth certificates.

If you previously listed your donor under ‘father’

Prior to the ART Act coming into effect, people made all sorts of choices around birth certificates. Some chose to list only the birth mother. If that applies to you, you simply need to fill in a form at the Victorian Registry of Births, Deaths and Marriages (BDM) and sign a statutory declaration that the non-birth mother consented to the ‘treatment’ that resulted in conception.

Some people chose to list their known donor on their child/ren’s birth certificate under ‘father’. For children conceived and born after the reforms, this is no longer a legal option. The only people that can be listed on a child’s certificate are their legal parents; the birth mother and her partner, if she has one. To list anyone else, under the current law, is to make a ‘false declaration’.

If you listed your child’s donor on their birth certificate prior to the reforms, he is assumed to be the legal parent, not the non-birth mother. However, the ART Act allows you to correct the certificate by removing his name and listing the non-birth mother (she will be listed as ‘Parent’) – you cannot list all three as a child cannot have three legal parents. Legally, the birth certificate should represent the actual situation, which is that the mothers are the parents (in that you have the parenting responsibilities), and your child/ren’s donor (whatever level of contact he might have with your family) is a donor. You need a County Court order to change the certificate, and your donor’s consent is not required.

We strongly advise that you speak to BDM before taking any action toward seeking an order.

Your donor will be listed as the child’s donor in their birth record at the Registry of Births, Deaths and Marriages (BDM), but not on their birth certificate. Contact BDM to find out about the process.

It is important to seek legal advice if it comes to a dispute. Although Victorian law states clearly that a donor is not a parent, the federal Family Law Act also presumes a person listed as a parent on a child’s birth certificate is their legal parent. This can be ‘rebutted’ (argued against) in court, based on the non-rebuttable presumption (also in the Family Law Act) that a non-birth mother who fits the criteria (see below under federal law) is a legal parent, but this contradiction in the legislation is yet to be tested in court. Also, courts take legal parentage as only one factor in deciding on things like who should live with, make decisions for, and have contact with a child. See Options for prospective lesbian parents for more on what happens if relationships break down.

Even if he is not listed on the birth certificate, your donor might well have a role in your child/ren’s life. If desired, you might explore the idea of recognising this role through court parenting orders by consent.

Federal law

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

Since November 2008, federal law has automatically recognised lesbian couples as their children’s legal parents, provided that the couple were in a ‘de facto’ relationship at the time, and that the non-birth mother consented to an ‘artificial conception procedure’ (including home insemination) that resulted in conception. The donor (known or otherwise) is assumed not to be a parent, where the intention was for the non-birth mother to be a parent. See above for possible complications, if the donor was listed as a ‘father’ on the birth certificate.

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, both mothers remain equal legal parents, with responsibilities including maintenance and child support.

Many more rights and responsibilities arise from these reforms.  Read more at Wear it with Pride and at the Australian government’s Attorney-General’s department.

See Options for prospective lesbian parents for more on what happens if relationships break down.