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This column was prepared by a pool of experts from Inner City Legal Centre (ICLC). This column provides general information only, and should not be taken as legal advice. If you need free legal advice about your specific situation, please contact ICLC on 02 9332 1966 or visit their website.
Previously Answered Questions:
Adoption, Surrogacy and Parenting
Civil Unions and Marriage
De Facto Relationships
Migration
Property on Relationship Breakdown
Protecting your Relationship Rights
Sex
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Adoption, Surrogacy and Parenting
Are agreements between donors and mothers binding?
In general, no. However some aspects may be binding, for example a voluntary agreement to provide child support by someone (either a co-mother or a donor) who is not covered by the legislation, could be treated as a contract and enforced.
Agreements about care, residence and contact with children are never binding as the court always has jurisdiction to determine what is in their best interests. Nevertheless, agreements may be taken into account, for example as evidence of the parties intentions as to the kind of family form they envisaged.
Agreements are also a good way of making sure everyone knows what everyone else intends before conception.
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What is the legal position of known and anonymous donors?
Whether a donor is known or anonymous, he is not a legal father under state or federal law as long as the baby is conceived through assisted conception. It does not matter whether assisted conception takes place through a clinic or with a syringe at home. Sperm donors do not have rights as a parent nor do they have liabilities, such as child support. Conversely, no matter what your intentions or agreement with the donor is, if you conceive through intercourse, then he will be a parent.
If a known donor was listed on a child’s birth certificate in NSW his name can be removed through a simple administrative process with his consent, or by court order if he does not consent.
It is important to note that a known and involved sperm donor may be considered a person concerned with the care, welfare and development of the child under the Family Law Act. Although this is not a legal parent, and provides no presumption in favour of contact, contact may be ordered by a federal family court if the donor can show it is in the child’s best interests. An order can also be sought by the parents and known donor with the parents’ consent.
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Would marriage give the right to adopt? Or would civil unions or de facto status do so?
Both married and heterosexual de facto couples are eligible to apply to adopt and so either married or de facto status for same-sex couples should bring the same eligibility. Civil union status would only do so if a specific inclusion of that status were made in adoption law. However note that there are very few Australian children available to adopt and relinquishing parents can express a preference for who they want. Same-sex couples, whether married, civilly unioned or de facto, would be unlikely to be eligible to adopt children from overseas because of the requirements set by the sending countries.
Same-sex couples in WA have been eligible to adopt since 2002 and in 2007, a child in Western Australia was placed with a gay male couple – five years after the reforms were passed in WA.
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Is it possible to become a parent through surrogacy in Australia? What is the law with regards to payment to the surrogate mother by the donors?
The laws about surrogacy in Australia are very complex and surrogacy, particularly if it involves payment, is illegal in many states. It is important to ensure that you get detailed legal advice if you are considering surrogacy.
Even in the states which allow surrogacy, there are strict conditions on how surrogacy must take place such as bans on advertising. Furthermore, it may be difficult to access fertility services to conceive, and the surrogate parent (and a partner) not the commissioning parents will be the legal parents to the child.
In NSW, once the Assisted Reproductive Technology Act 2007 (NSW) commences (which is likely to be in late 2009), commercial surrogacy will be prohibited in NSW.
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What is the position of the Family Court on custody and access with a parent who has left a marriage and is now gay?
The Family Court of Australia has never held that sexual orie
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