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Family law in Australia with regard to children is often based on what is considered to be in the best interest of the child. The traditional and often used assumption is that children need both a mother and a father, which plays an important role in divorce and custodial proceedings, and has carried over into adoption and fertility procedures, even though those assertions find no support in the scientific research literature. As of February 2017 all Australian states and territories except for the Northern Territory allow adoption by same-sex couples.
Contents
Overview
As laws within the whole of Australia since 1 July 2009 have only begun to recognise de facto same-sex couples under the Family Law Act 1975, there are very limited areas where same-sex couples have rights with respect to conceiving, adopting, and rearing children. Additionally, women (particularly birth mothers) are generally given more rights over children than men, giving more room for lesbian couples to adopt and have genetic children. Male couples have virtually no legal opportunities to become legally recognised parents aside from adoption except in cases of drug abuse, mental illness, and physical, sexual, and emotional abuse from the mother.
Same-sex parent adoption
Since February 2017, adoption by same-sex couples is legally available in all jurisdictions of Australia – except for the Northern Territory. South Australia, the most recent jurisdiction to reform the law, introduced a bill to the South Australian Parliament that allows same-sex couples to adopt children in September 2016 and which passed the Parliament in December 2016. That bill received Royal Assent a week later and took effect in February 2017.
In Queensland, same-sex couples have been legally allowed to adopt since passage of a law in November 2016. Single LGBT people may adopt in some states, but individuals seeking to adopt are considered less of a priority than couples and lengthy waiting lists for adoption make it virtually impossible. Individuals may usually only adopt a child with special needs or in cases of exceptional circumstances.
Western Australia became the first Australian state to allow same-sex adoptions when its Labor government passed the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 which in turn amended the Adoption Act 1994 (WA). This allowed same-sex couples to adopt in accordance with criteria that assesses the suitability of couples and individuals to be parents, regardless of sexual orientation.
Australia's first legal gay adoption, by two men, occurred in Western Australia in June 2007. Subsequently, on 2 August 2007, the federal government under Prime Minister John Howard announced it would legislate to stop same-sex couples adopting a child from overseas, and would further not recognise adopted children of same-sex couples. The federal Coalition's proposed Family Law (Same Sex Adoption) Bill would amend the Family Law Act 1975 and override state and territory laws that currently cover international adoptions. The bill was due to be introduced in the spring 2007 session of parliament, but has been taken off the agenda following the 2007 federal election.
In July 2009 the NSW Law and Justice Committee decided that the Adoption Act 2000 should be amended to allow same-sex couples the right to adopt. Committee chair Christine Robertson said, "The committee has concluded that reform to allow same-sex couples to adopt will help to ensure that the best interests of children are met by our adoption laws and all recommendations were implemented in 2010."
Same-sex step-parent adoption
Where joint adoption of children by same-sex couples is legal, so too is step-parent adoption. All jurisdictions within Australia - except for the Northern Territory, lesbian co-mother or gay co-father may use stepparent adoption provisions, although female couples in those states whose children were born through assisted conception may not actually need to adopt them, as the law there presumes the mother's female partner to be a legal parent as long as she consented to the conception. As of 2017, all states and territories, allow both same-sex partners to have a legally recognised relationship with their child - except for the Northern Territory within adoption and Western Australia within surrogacy.
However, even those laws contain a general presumption against making an adoption order because an adoption order severs the legal relationship between the child and one of the child's birth parents. Due to the serious consequences of an adoption order, all step-parent adoption laws (including those applying to opposite-sex couples) contain a strong preference for dealing with new parenting arrangements through a parenting order rather than an adoption order.
Alternately, the lesbian co-mother or gay co-father of a child may apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. It provides an important "status quo" if the birth mother were to die, preventing other family members from not taking immediate custody the child.
The Human Rights and Equal Opportunity Commission (HREOC) issued a report in 2007 entitled National Inquiry into Discrimination against People in Same-Sex Relationships recommended amending or creating laws recognising the relationship between a child and both same-sex parents. In particular, "‘Stepparent adoption’ laws should more readily consider adoption by a lesbian co-mother or gay co-father. This will require amendments to remove the prohibition on same-sex stepparent adoption in all state and territory laws other than in WA, the ACT and Tasmania." The final report of the Same-Sex: Same Entitlements Inquiry was tabled in Parliament on 21 June 2007.
Assisted reproduction and surrogacy
Assisted Reproductive Technology (ART) and surrogacy comes under the jurisdiction of states and territories in Australia so national legislation cannot be used to regulate its practice. In Vitro Fertilization technologies, artificial insemination, and other reproductive technologies are legal in nearly all states and territories. Western Australia is the only state that bans altruistic surrogacy for singles and same-sex couples and also limits access to IVF to those who are infertile or carrying a genetic disorder.
Commercial surrogacy and related advertising remains illegal in all states and territories except for the Northern Territory where there are no laws or regulations regarding surrogacy arrangements. Altruistic surrogacy, where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child, is legal in the Australian Capital Territory, New South Wales, Victoria, Tasmania and Queensland. A law that will allow IVF and surrogacy for same-sex couples in South Australia is yet to go into effect. With altruistic surrogacy, only expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses.
The practice of altruistic surrogacy for same-sex couples remains illegal only in Western Australia. It is believed that only 1 in 20 surrogacy arrangements take place in Australia; almost all involving foreign surrogates from South-East Asia and the United States. In Tasmania, until 30 April 2012 then the Surrogacy Contracts Act 1993 is then repealed and replaced on 1 May 2013 with the Surrogacy Act 2012 becoming effective to allow altruistic surrogacy for all singles and couples of all genders. In Queensland where the newly elected state Liberal National Party government who won the Queensland state election in March 2012 with a massive super-majority, has announced that they will re-criminalise altruistic surrogacy for singles, same-sex couples and opposite-sex couples who have been in a de facto relationship for less than 2 years. In November 2006, Attorneys-Generals from all states and territories agreed in principle to uniform surrogacy regulations which meant couples would no longer have to travel to avoid illegal arrangements in their home state after Victorian Senator Stephen Conroy and his wife, Paula Benson, revealed that their daughter Isabella had been born to a surrogate mother in Sydney via the in-vitro fertilisation of a donated egg. In April 2007, Federal Attorney-General Philip Ruddock called for national surrogacy laws, so couples in some states no longer have to travel elsewhere to undergo the procedure legally.
Obtaining legal parental rights for same sex partners of birth parents has only recently been addressed in limited ways. All states and territories recognise female co-mothers as birth parents of children conceived through in vitro fertilisation or artificial insemination. Male couples who arrange altruistic surrogacy (since commercial surrogacy is illegal) using one partner's sperm, which may be legally possible in the Australian Capital Territory, New South Wales, Tasmania, Queensland, Victoria and soon will go into effect in South Australia, will face legal difficulties gaining rights for the genetic father as a 'sperm donor', and terminating the surrogate mother's rights (ideally through a stepparent adoption), which will be required in order to obtain legal recognition for the non-biological male partner. A growing number of male couples from around the world are attempting to become parents through surrogacy in America due to its favourable laws. However, it is a criminal offence for a person ordinarily resident in Queensland, New South Wales or the ACT to enter into a commercial surrogacy arrangement anywhere in the world.
ACT
The Parentage Act 2004 made non-commercial surrogacy legal but the birth mother and her husband were deemed to be the parents unless the genetic parents adopt the child back. In 2000, The ACT became the first state or territory to allow the genetic parents who are heterosexual of a child born through surrogacy to become its legal parents, allowing them to easily obtain a parenting order and avoid adoption. It is illegal to advertise for a surrogate and to pay for a surrogate or an ovum donor. When two women are in a same-sex relationship, and one of them gives birth as a result of ART, her partner is presumed to be a parent of the child. The ACT's birth registration process allows for a person to be registered as a 'mother', 'father' or 'parent', enabling lesbian couples to be recognised as parents on a child's birth documents.
Northern Territory
The Northern Territory was the second jurisdiction to extend a presumption of parentage to lesbian partners in 2003 with its Status of Children Act 2003, following Western Australia's lead in 2002.
Tasmania
The Status of Children Act 1974 states that the woman who gives birth to the child is the mother, regardless of genetics. The Act does make a mention of "parentage" of both co-mothers in section 10C, however a report back in 2003 by the Joint Standing Committee on Community Development proposed amending the Act to recognise the lesbian partner as a parent via the Relationships (Consequential Amendments) Bill 2003 but it failed to pass in the upper house by just one vote. In June 2009, the Relationships (Miscellaneous Amendments) Bill proposed reform to the state's Adoption Act and Status of Children Act, allowing non-biological lesbian parents to be legally considered the parents of a child conceived using IVF. The bill passed the lower house 45-3 on 20 August, opposed by three Liberal MHA's who had been given a conscience vote. The Legislative Council (Upper House) ratified the bill with amendments to back date the law to 1 January 2004 in October without dissent. The lower house approved of the amendments made in the upper house in November 2009 and then passed the Tasmanian parliament.
In 2012, Tasmania passed two pieces of legislation to legally allow altruistic surrogacy. The two laws are called the Surrogacy Act No 34 and the Surrogacy (Consequential Amendments) Act No 31. Proposed altruistic surrogacy legislation was drafted and passed by both houses of the Tasmanian parliament – only after a review of the Surrogacy Contracts Act 1993 No 4 and after an ongoing community consultation process. Under the altruistic surrogacy legislation, the surrogate must be at least 25 years old and it cannot be her first pregnancy. The new altruistic surrogacy laws went into effect on May 1, 2013.
Western Australia
The Human Reproductive Technology Act 1991 (WA) established that to use any ART, a woman must be unable to conceive a child due to medical reasons (clinical infertility) and "persons seeking to be treated as a couple must be married or in a de facto relationship and must be of the opposite sex to each other".
In 2002, the Artificial Conception Act 1985 was amended to deal with lesbian couples. It stated that, where a woman who is in a de facto relationship with another woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure, the de facto partner of the pregnant woman is conclusively presumed to be a parent of the unborn child and is a parent of any child born as a result of the pregnancy.
Western Australia's Registry of Births, Deaths and Marriages allows for registration of a parent other than a 'mother' and/or 'father' on the birth documents of the child. The birth registration form provides same-sex couples with the option of describing themselves as 'mother' and ‘parent’; 'mother' and ‘mother’; or 'parent' and 'parent'. Provided proper consent has been given by both the woman and her same-sex partner, the partner will conclusively be presumed to be the parent of any resulting child.
The Surrogacy Bill 2007 was passed by the Legislative Assembly (Lower House) in September 2007, and was referred to the Standing Committee on Legislation within the Legislative Council (Upper House) in November 2007. It was sent back to the Legislative Council (with amendments to ban single people and same-sex couples from altruistic surrogacy arrangements) for a third reading in June 2008. The legislation was passed on 4 December 2008.