In 2008, the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) came into force. This means that children born through assisted reproductive technology (ART) to lesbian couples will have two legally recognised mothers. This laws applies retrospectively to children already born, as well as children born in the future.
We have answered your FAQs about the lesbian parenting laws.
How will the new lesbian parenting laws work?
The new laws insert a legal presumption into the Status of Children Act 1996 (NSW) which applies to lesbian couples who have a baby through ART together. ART includes children born through IVF, donor insemination or home insemination - but does not cover children conceived through sexual intercourse.
The presumption recognises the birth mother of the child born through ART as a legal parent (even if the baby was conceived using another woman's egg). The birth mother's female partner is also recognised as a legal parent, so long as she consented to the ART procedure at the time of the child's conception. This means, to be recognised as parents to the child, lesbian couples must have both wanted to have the baby together as a couple at the time the baby was conceived.
This parentage presumption works automatically, whether or not the parents apply to get a new birth certificate for their child. The laws apply retrospectively to include children already born - as well as children born in the future. They apply to families which are intact, as well as families which have separated.
What is the effect of being recognised as a legal parent under NSW law?
If the parentage presumption applies to you and your partner (or former partner), you will be both be legal parents under NSW law. This means you both will automatically have the parental authority to make decisions about your child's health, schooling etc.
You child will have automatic inheritance rights and workers' compensation entitlements if their birth mother or co-mother dies. You will automatically be recognised as a 'parent' under all NSW laws.
You do not need a parenting order or a new birth certificate for your child to be entitled to these rights and protections. However, a birth certificate may make it easier for you to prove your parental status.
How do I get a new birth certificate for my child with our names on it?
If your child has a birth certificate which only lists his or her birth mother, you simply need to contact the NSW Births, Deaths & Marriages Registry on 1300 655 236. They will take your details down and help you through the process to ensure the co-mother is listed on the birth registry and certificate.
To have the birth certificate changed, the birth mother and the co-mother will both need to consent.
If either the birth mother or the co-mother cannot agree, a court order is required to change the birth certificate.
What if we've listed our child's donor on the birth certificate?
If a child is conceived through ART, the man who provided the sperm for the conception is not recognised as a parent under NSW law. This is the case even if you have listed the donor’s name on the birth certificate as a 'father.' This is because the birth certificate only assists with proving parental status – it cannot make a person who is recognised as a donor under the law into a legal parent.
Nevertheless, if you have listed your child’s donor on the birth certificate as 'father', the donor’s name cannot be removed without the donor’s consent or a court order.
If your child was conceived through sexual intercourse, the biological father is the legal parent (i.e. not recognised as a donor) and cannot be removed at all.
But our family has three (or four) parents! Can I list my child’s mums and dad/s on the birth certificate?
These changes do not allow a child to have more than two legal parents.
Children who have three or four parents can nevertheless be recognised through a parenting order via the Family Court.
What about adoption and children born through surrogacy?
Same-sex couples are eligible to apply for adoption (including in unknown circumstances) without discrimination. This enables a couple who is fostering children or a same-sex step-parent to adopt. Same-sex couples are also able to access non-religious adoption providers (such as Barnados) to facilitate unknown adoptions.
Altruistic surrogacy is lawful in NSW. Under Surrogacy Act, a consenting birth mother (and her de facto partner if relevant) may transfer parentage to the intended parent/s. Evidence of a prior non-commercial surrogacy agreement, independent legal advice and counselling is necessary prior to any transfer of parentage under the surrogacy laws.
Where can I get more information?
Inner City Legal Centre
The Inner City Legal Centre has a statewide, specialist lesbian and gay legal advice service. Phone: (02) 9332 1966.
NSW Births, Deaths & Marriages Registry
The NSW Births, Deaths & Marriages Registry administers the new laws. Phone: 1300 655 236.