Recognition of Lesbian and Gay Families in Australian Law — Part Two: Children
| Author | Jenni Millbank |
| DOI | 10.22145/flr.34.2.1 |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| Subject Matter | Article |
RECOGNITION OF LESBIAN AND GAY FAMILIES IN
AUSTRALIAN LAW — PART TWO: CHILDREN
Jenni Millbank*
I INTRODUCTION ..................................................................................................205
II FAMILY FORMATION......................................................................................... 208
(i) Adoption of unrelated children ..............................................................................208
(ii) Surrogacy..............................................................................................................212
(iii) Access to fertility services and reproductive technologies ..................................217
III PARENTAL STATUS OF CHILDREN BORN THROUGH ASSISTED
REPRODUCTION .............................................................................................232
(i) Sperm donors.........................................................................................................233
(ii) Co-mothers ...........................................................................................................246
IV CONCLUSION........................................................................................................258
I INTRODUCTION
This article discusses the legal regulation of parenting in lesbian and gay families in
Australia. This landscape of regulation includes laws that govern such families both
before and after they are formed; that is, laws controlling access to potential family
formation options in addition to laws that govern the status of parents and children in
families that are formed through alternate means. There have been a number of
important developments in these areas in recent years, including: challenges to laws
that restrict access to fertility services; reforms to adoption laws in three jurisdictions;
and deemed parental status for co-mothers in lesbian families formed through assisted
reproduction in three jurisdictions. This article will detail how the new parental status
reforms interrelate, including difficult questions regarding the recognition of this new
parental status in other States and their interaction with federal law.
There is a large and burgeoning literature, mostly generated in the United States
('US') and United Kingdom ('UK'), discussing research findings about the well-being of
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* Associate Professor of Law, University of Sydney. Thanks to Reg Graycar and Isabel
Karpin for comments on an earlier draft, and to Melissa Gangemi and Aleardo Zanghellini
for discussion of the issues in recent years. Thanks also to Melissa Gangemi and Tiffany
Hambley for their invaluable research assistance. The information in this paper is up to
date as at 11 August 2006. The first paper in this research project, focusing on couple-based
rights, was published in the previous issue of the Federal Law Review.
206 Federal Law Review Volume 34
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children born into lesbian and gay families.1 This article does not engage with the
'deficit model in which prospective lesbian or gay parents are assumed to lack the
attributes essential for effective parenting.'2 Nor do I pursue debate as to whether
equal legal treatment is deserved. Rather, I proceed on the basis that lesbian and gay
families exist, are expanding, and require forms of legal recognition that reflect their
lived experiences and needs.
There continues to be little information available on lesbian and gay family forms in
Australia generally, although there have been an increasing number of small-to
medium-scale surveys generated by community-based groups in recent years.
Moreover there is some limited census data available since same-sex cohabiting
couples were included in its questions in 1996. Of the 20 000 same-sex couples who
recorded their relationship in the 2001 Australian census, five per cent of gay male
couples were living with children, while 19 per cent of lesbian couples were living with
children.3 This data is limited by the fact that it only indicates the number of same-sex
couples who declared their relationship and who are living with minor children. Thus it
does not include lesbians and gay men raising children as sole parents, nor does it
include lesbians and gay men who are non-resident parents — of whom men are likely
to make up the larger share. A 2005 Australian health survey of over 5000 lesbian, gay
and bisexual respondents, Private Lives, found that 3.7 per cent of men and 15.9 per
cent of women were living with a child. Again, this information only recorded those
currently living with children. Smaller-scale Australian surveys have found that
lesbians are around twice as likely as gay men to have children; and suggest that
around 20 per cent of lesbians and 10 per cent of gay men have children.4 This is
consistent with survey data from the US.5
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1 This literature, and some small scale Australian data, is reviewed in Jenni Millbank, 'From
Here to Maternity: A Review of the Research on Lesbian and Gay Families' (2003) 38
Australian Journal of Social Issues 541. For more recent research concerning older children
see: Jennifer Wainright, Stephen Russell and Charlotte Patterson, 'Psychosocial
Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex
Parents' (2004) 75 Child Development 1886. For a focus on alternate forms of reproduction
rather than the sexuality of parents, see: Ruth McNair, Outcomes for Children Born of ART in
a Diverse Range of Families, Victorian Law Reform Commission Occasional Paper (2004).
2 Ruth McNair, 'From GP to Political Activist for the New Family' in Heather Grace Jones
and Maggie Kirkman (eds), Sperm Wars: The Rights and Wrongs of Reproduction (2005) 227,
229.
3 Australian Bureau of Statistics, Year Book Australia 2005: Population — Same-Sex Couple
Families (2005).
4 Marian Pitts, Anthony Smith, Anne Mitchell, Sunil Patel, Private Lives: A Report on the
Health and Wellbeing of GLBTI Australians (2006). Surveys of readers of a Sydney-based
magazine in 1996 and 1999 found around 20 per cent of lesbians respondents had children;
a figure in accord with census data: see Lesbians on the Loose, March 1996 (reporting on the
1996 survey, which had 732 respondents); Significant Others, 'Australian Lesbians Get
Used to Being Called Mum' (Press Release, 30 March 2000) (reporting on the 1999 survey,
with 386 respondents). In a 2001 Victorian survey of 670 lesbians, gay men, bisexual and
transgender people, 21 per cent of respondents reported that there were children in their
family: see Victorian Gay and Lesbian Rights Lobby, Everyday Experiments: Report of a
Survey into Same-sex Domestic Partnerships in Victoria (2001), 13–14. A 2005 follow-up survey
found 18.6 per cent of respondents had children: see Ruth McNair and Nikos Thomacos,
Not Yet Equal: Report of the VGLRL Same Sex Relationships Survey 2005 (2005) 41. This latter
2006 Lesbian and Gay Families in Australian Law 207
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Australian studies of lesbian and gay parents have indicated that of those with
children, around half those children were born through previous heterosexual
relationships.6 It is clear that the proportion of children born into same-sex
relationships in Australia is increasing, and the use of assisted reproduction is a key
aspect of this trend.7
Family formation options for those in same-sex relationships include surrogacy or
adoption of a child either domestically or through inter-country adoption, although, as
we will see, these avenues are effectively rendered moot by several interrelated forms
of legal regulation. For lesbians there are additional birth options, not available to gay
men, of pregnancy through assisted reproductive technologies such as anonymous
donor insemination or the use of a known (though often uninvolved) donor. Finally,
lesbians and gay men may form families together using known donor insemination
(either at home or through a clinic) with the aim of some form of joint parenting.
Access to each of these parenting options will be explored below, before moving on to
consider in detail the issue of parental status for families formed through assisted
reproduction.
Parental status is an important issue. Legal consequences vary as between children
born through sexual and non-sexual means. Certain legal rules or presumptions apply,
irrespective of intention, and most legal consequences cannot be derogated from
through individual agreements. So, for example, if a lesbian chooses to eschew the
difficulties in accessing assisted reproduction to instead become pregnant through sex
with a man, he will be a legal father, regardless of the intentions of both parties.8 When
children are born through non-sexual means, the applicable laws deeming parentage
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report is limited by the fact that it does not indicate the respective figures for men and
women, nor does it indicate whether the children reside with the couple or whether they
were born into the relationship, or into previous relationships.
5 See Fiona Tasker, 'Lesbian Mothers, Gay Fathers, and Their Children: A Review' (2005) 26
Journal of Development and Behavioral Pediatrics 224.
6 A study of the health care experiences of 92 lesbian and gay families involving 167 children
found that 44 per cent of first-born children were conceived in previous heterosexual
relationships, while 46 per cent were conceived through donor insemination: Katja
Mikhailovich, Sarah Martin and Stephen Lawton, 'Lesbian and Gay Parents: Their
Experiences of Children's Health Care in Australia' (2001) 6 International Journal of Sexuality
and Gender Studies 181. The 'Lesbian and Gay Families Project' surveyed 136 women in
Victoria and found that 52 per cent of current parents had children through previous
heterosexual relationships, while 36 per cent were through donor insemination and 6 per
cent through invitro fertilisation ('IVF'): Ruth McNair et al, 'Lesbian Parenting: Issues,
Strengths and Challenges' (2002) 63 Family Matters 40. See also a survey of 84 mothers at the
2000 Sydney Lesbian Parenting Conference which found that 76 per cent had conceived
through self-insemination: discussed in Millbank, 'From Here to Maternity', above n 1.
7 In one recent study among 43 lesbians who were trying to conceive, only 2 per cent used
intercourse, while 44 per cent self-inseminated, 33 per cent used clinic-based insemination
(and a further 2 per cent used both) while 13 per cent were using IVF: McNair et al,
'Lesbian Parenting', above n 6.
8 In ND v BM (2003) 31 Fam LR 22 ('ND'), a lesbian couple had an express agreement with a
man that he was to be a sperm donor with no legal rights or liabilities. The Family Court
held that the fact that the pregnancy was achieved through sex rather than assisted
conception meant that legal presumption of parental status applied, regardless of the
intentions of all concerned to the contrary.
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