How the law affects our lives? A comparison

Megan and Tracey

Megan and Tracey are a couple and they live in a metropolitan area. They decide to start their own family. Megan will be the birth mother.

When they approach a local private fertility clinic, they are not asked if they are a couple, and the paperwork only notes that Megan seeks its services, making Tracey feel uncomfortable. Megan is offered a limited choice of sperm, as the clinic explained she could only choose from donors who consented to “unmarried” women being recipients.

As the limited available sperm from anonymous donors means that their child could have the same biological father as the children of other lesbian couples in the area, they approach a close gay friend, Chris, to see if he will donate sperm. Chris agrees, after lengthy discussions including what role he will play in the child’s life.

All three approach the same fertility clinic, and Chris completes the necessary paperwork for sperm donors, including declaring that he has engaged in male-to-male sexual activity. The clinic agrees to accept his sperm donation, but advises that insemination can not occur for at least six months. HIV testing now and in several months has to occur, in addition to other tests. If Megan were the wife or de facto partner of Chris, this would not be required.

Some time later, Megan gives birth to a boy named Sean. Upon birth registration, they find that there is no provision on the birth certificate to note Chris as the sperm donor, nor Tracey as a parent.

Megan and Tracey seek legal advice. They are advised that Chris is not legally considered a parent of Sean, as he donated sperm, and as such has no parental responsibilities to Sean including providing financial support. Tracey is also not legally considered a parent of Sean under NSW law, even though she will be fulfilling the role of a parent.

They are advised that the “parenting agreement” they downloaded from a website is not legally binding, and, as a same sex couple, Megan and Tracey do not have the option of entering into a “parenting plan” under the Family Law Act. However, all three could consent to parenting orders being made in the Family Court, giving Tracey along with Megan, responsibility for making decisions concerning Sean’s long term care, welfare and development. The Court could also provide for Sean to live with Megan and Tracey, and for Chris to have contact with him at agreed times. However, before the Family Court will make the parenting orders, they have to submit paperwork to explain this family structure.

Later when enrolling Sean in school, Megan and Tracey present Sean’s birth certificate but not the parenting orders. Before they could complete his enrolment, they must return with the parenting orders to confirm who has parental responsibility. It is only then that the school authorities will deal with Tracey. Megan and Tracey encounter similar situations in the future, such as when taking Sean to a doctor or to swimming lessons.

Robyn and Geoff

Robyn and Geoff are a de facto couple and live next door to Megan and Tracey. They wish to start their own family, and will need to access an fertility clinic.

When they approach the same fertility clinic as Megan and Tracey, their paperwork confirms they are a couple and both consent to the procedure. They are given a selection of sperm from a wide range of donors, and otherwise have no problems accessing the services of the clinic. Within a few months, Robyn conceives.

Robyn gives birth to a girl she and Geoff name Lucy. Upon birth registration, Geoff is noted on the birth certificate as Lucy’s father. As he is Robyn’s de facto partner in an opposite sex relationship and consented to the insemination procedure, he is automatically considered Lucy’s parent at law. They have no problems with birth registration.

As Robyn is Lucy’s birth mother and Geoff is legally considered her parent, they both automatically have parental responsibility for her, including for her financial support. As such it is not necessary for Robyn and Geoff to obtain parenting orders through the Family Court to provide for their parental responsibility.

Upon enrolling Lucy in school years later, Robyn and Geoff produce Lucy’s birth certificate, establishing both are parents, and have no problems enrolling her. They are both able to deal with the school authorities.

As they are legally considered parents of Lucy, Robyn and Geoff do not encounter any obstacles dealing with any other authorities about her in the future.

Sean is raised by two loving parents, Tracey and Megan - but the law of NSW says that Sean only has one parent.

Should Tracey die, Sean has no right to worker's compensation, automatic inheritance or any other legal rights that ordinarily flow from a parent/child relationship.

If Megan were to die, Tracey does not have any automatic right to maintain residence and parental authority regardless of the number years she has loved and cared for Sean as a parent.

These are only a fraction of the laws that impact upon the daily lives of Megan, Tracey, Chris and Sean.

How is such blatant discrimination against this family in a child’s best interests?