Australian Gay & Lesbian Law Blog - "Children born after donor insemination should be told as soon as possible about their conception" by Stephen Page

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called "Australian Gay and Lesbian Law Blog". [Ed - Rodney Cruise]

It is better for children conceived by donor insemination to be told of their origins at an early age, according to the first large-scale study of people who are aware of their donor conception. If the children are not told until they are 18 or older, they are more likely to have feelings of shock and anger, the 24th annual meeting of the European Society of Human Reproduction and Embryology in Barcelona heard.

The study is one of the first to compare the views of offspring of donor insemination told of their origins during childhood compared with those who only found out in adulthood. The researchers recruited a sample of 165 offspring conceived by sperm donation through the Donor Sibling Registry – a US-based, worldwide website that enables donor offspring to search for their donors and their donor siblings (other donor offspring who share the same donor). The participants answered an online questionnaire consisting of multiple-choice and open-ended questions. They were aged 13-61; 148 (89%) were living in the USA and four (2%) were living in the UK; the majority (approximately three-quarters) were female.

Dr Vasanti Jadva, a research associate at the Centre for Family Research, University of Cambridge (UK), found that children born into mother-only or same-sex parent families were much more likely to be told about their origins before the age of three than were children of heterosexual parents: 63%, 56% and 9% respectively. Indeed, 33% of children in heterosexual families were told about their conception after the age of 18, compared with none in the other two types of families. Two children from heterosexual parents only found out when told by people who were not their parents.

Dr Jadva said: "We asked the offspring how they felt at the time they found out about their conception, excluding those that found out before the age of three as they would have been too young to recall their feelings. For all offspring, the most common feeling was curiosity, irrespective of the age at which they found out. However, there were differences according to the age at which they had been told of their conception, with those told during adulthood more likely to report feeling confused, shocked, upset, relieved, numb and angry."

For instance, 37% of those told when aged 4-11 reported feeling confused, compared to 52% told when aged 12-18, and 69% told when aged over 18. In the respective age groups, 27%, 58% and 75% respectively reported feeling shocked; 16%, 23% and 44% reported feeling upset; 6%, 26% and 38% reported feeling relieved; 6%, 26% and 38% reported feeling numb; and 12%, 13% and 38% reported feeling angry.

Examples of comments made by the participants included:

"I would have appreciated revelation of this information much earlier in my life. Learning of my biological identity at 17 years of age was a traumatic event." A 30-year-old, found out at age 17.

"I am angry because I asked about being 'adopted' several times throughout my childhood and adolescence and told that I was being foolish. I knew." Someone who found out at age 50

"Either tell your kid from the beginning or don't tell them at all, it was one of the most shocking and upsetting moments of my life. I felt alone." A 19-year-old, found out at age 12.

"I was so young I don't remember feeling much more than interested and curious." A 13-year-old who found out at age four.

Dr Jadva said: "With regards to how offspring felt towards their mother at the time of finding out, offspring told in adolescence or adulthood were more likely to report feeling angry about being lied to and betrayal. Those told as children were more likely to state that it made no difference to how they felt towards their mother compared to those told later in life." According to whether they were told between 4-11, 12-18 or over 18, 12%, 29% and 47% respectively felt angry at being lied to, and 12%, 23% and 34% felt betrayal. There were no statistically significant differences in feelings of offspring towards their father at the time of disclosure.

When asked how they felt currently about their conception, the most common response was curiosity, reported by 69% of offspring. There were significant differences for those feeling angry, relieved and shocked, with those told after the age of 18 more likely to report these feelings. By contrast, a 15-year-old, told before the age of three, commented: "I've grown up knowing how I was conceived. I've always been accepting to it because I never knew any different. Now that I am a little older the only thing that's changed is that I'm a bit more curious."

Dr Jadva concluded: "This study shows that age of disclosure is important in determining donor offspring's feeling about their conception. It appears it is better for children to be told about their donor conception at an early age. This finding is in line with research on adoption, which also shows that children benefit from early disclosure about the circumstances of their birth.

"In light of the trend toward greater openness, it is important we recognise that telling offspring of their conception may evoke a sense of curiosity about their origins which could lead them to seek out their donor relations. In fact, we have found that offspring show high levels of interest in contacting not only their donor, but also their donor siblings. Offspring from this study have gone on to find an average of four donor siblings, with a maximum of 13."

[Link: Original Article]

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SX - "A gay dad's journey"

How altruistic surrogacy helped Aussie expat, Jonathan Melrose, become a proud dad.

“Hurry up, she’s here,” Naomi yelled through the cubicle wall.

I was taking a piss at precisely the time that our daughter, her birth mother, Naomi, her partner, Jennifer, and my partner, Derek, were coming back from the delivery suite.

Here was our daughter, the most precious thing I had ever seen in my entire life – newly born, all wrinkly, yellow and with a most pissed off look on her face.

But let me go back to the beginning.

Derek and I met in 2000, and pretty soon realised that we were a great team and that this was for keeps.

As all our straight friends started getting married and having children we pondered our own futures. Would we be forever the Uncles? We knew we wanted to create a family, but how?

When the UK introduced Civil Partnerships it also lifted the ban on same sex adoption. We thought this was the route for us.

In the middle of this adoption process, Derek’s first cousin, Jennifer, and her partner, Naomi, were visiting us. At breakfast on their second day, Naomi opened a conversation about surrogacy.

“We’ve been thinking about things,” she said, “and we feel that we can help you with creating your family”.

We were gob-smacked. They had thought through all of the associated issues from conception, pre and post natal, legal and health issues and presented us with an almost complete package. All we had to do was say yes. And of course, we said yes!

The following nine months seemed to drag on forever. We spent a lot of time finalising details around the surrogacy and transference of parental rights.

Jennifer was carrying the baby and all of her medical requirements were taken care of by the National Health Service (NHS). They were incredibly supportive.

Finally, the day arrived. I was at work in London and got the call that Jennifer had been taken to hospital. She was fine and the baby was fine but to be safe we’d better get there – soon. I called Derek and within hours we were off.

On June 27, 2006 our beautiful daughter was born via c-section at Irvine Hospital in Scotland.

Derek went into the delivery suite with Jennifer for the birth. He was so overcome he mistook the time, 10:40, for her birth weight!

Since then it’s been a roller coaster ride: late nights, early mornings, vomit and some of the most amazing nappies you have ever seen. But she melts my heart each day when I pick her up from the child minders and she looks at me and says, “I missed you today, Daddy”.

Ever since she was able to focus on faces she has clearly differentiated between her Dada (Derek) and Daddy (me).

One thing we hadn’t considered was how much our daughter would “out” us once she stared talking.

She’s as proud of us as we are of her – as she points us out to strangers saying, “This is my Daddy and this is my Dada”. Sweet.

The great thing about this is just how much people don’t seem to care – they smile sweetly at her and say that’s great, and tell us that we must be very proud. And we are. We are very proud of her.

She is the future. She and her peers will grow up surrounded by all kinds of families, same-sex families will be just another kind.

[Link: Original Article]

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Australian Gay & Lesbian Law Blog - "Family Court case: was father gay?" by Stephen Page

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called "Australian Gay and Lesbian Law Blog". [Ed - Rodney Cruise]

In the recent Family Court case of Craven & Crawford-Craven, Justice Warnick, sitting as the Full Court, had to consider the question of the father saying that he was unfairly branded by the trial judge as a homosexual. The father had sought equal time to the parties' child G, which was rejected by the trial judge, finding that the child should spend more time with the mother.

What was apparent from the trial was that the father and mother had separated and the father now resided with his partner, a Mr J.

The father considered that the issue of homosexuality might be important to the parenting orders that were the subject of the appeal.

In his grounds of appeal, the father said:

"That in considering the lifestyle of the [father] as a homosexual as the Federal Magistrate did ......... and describing the father as homosexual in the key words to the reasons for judgment, the Federal Magistrate erred in that he made that determination when there was no evidence that justified such determination."

The Federal Magistrate said:

"The homosexuality of the father does not, of itself, disqualify him from fully enjoying and fulfilling his role as a parent."


"I accept that the father and his partner are able to provide for [G]’s needs and to parent him effectively. However, as [G] grows older, issues may arise that the father has to deal with in explaining to his son his personal circumstances. That does not mean that [G] should not continue to spend significant time with his father.

"I do, however, think that the separation of [G] from the mother and his sister for extended periods would not be in his best interests. It would prove to be disjointed for [G]. He would be part of the larger family unit for some of the time and would then be effectively an only child in the father’s household whilst he spent time with him. This may prove difficult for [G] to adjust to. This difficulty is highlighted by the fact that it will be only him who is moving between two households whilst his sister stays with the mother. In my view this concern leads me to conclude that the child should spend more time with the mother than with the father, and it would not be in the child’s best interests to spend equal time in both households."


Counsel for the father stated:

"The finding [of homosexuality], whilst not having of itself any consequence, is a finding that was not open to the Trial Judge on the evidence that was before the Court, that is, that the father had a homosexual preference, if that finding reflects upon the determinations which the Trial Judge made...."

Justice Warnick noted that the finding as to homosexuality could not be seen to have affected any relevant determination that the Federal Magistrate made. Indeed, it was clear from the discussion that followed the sentence containing the reference to the homosexuality of the father, that the trial judge saw no relevance in it in the case before him.

Moreover, the trial judge noted that the father may have to, in the future, explain his personal circumstances to his son. Indeed, in the last sentence of the paragraph, he especially rejected any such consequence.

In the following paragraph, the trial judge "set out the basis for rejecting an equal sharing of time between parents. The father’s sexual orientation was not a factor.
In any event, while the husband deposed that psychologists and counsellors had identified him “firmly as bisexual” and therefore a more complete description of the circumstances presented at trial might have been that he was a bisexual, living in a homosexual relationship, it is at least arguable that a reference to the homosexuality of the father is not incorrect, that being one part of his orientation, currently forming a basis for his cohabitation with Mr J."

[Link: Original Article]

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Sydney Star Observer - "NSW to Review Surrogacy Law" by Harley Dennett

Commercial surrogacy that would open up parenting options for gay men will not be considered as part of an in-depth review of Australian surrogacy laws commissioned by NSW Attorney-General John Hatzistergos.

Instead the review will focus on altrustic surrogacy — unregulated in NSW, but banned in many states.

Hatzistergos said there was potential for national consistency, which would be the subject of a consultation paper prepared by the Ministerial Councils for Community Services and Health and expected to be released in the near future.

“Laws in different states and territories are complex and inconsistent, often forcing prospective parents to cross state lines to have children via surrogacy,” Hatzistergos said in a statement.

“I will now be asking the NSW Legislative Council standing committee on law and justice to conduct a full review and report on the issues and this process will allow stakeholders to contribute their thoughts.

“This is an extremely sensitive area, requiring some difficult moral and ethical issues to be resolved.”

He said the first and foremost considera-tion should be the interests of the child.

The review will consider whether the intended parents and surrogate mother should have to meet any criteria, whether the surrogate child should have the right to access information about their genetic parentage, as well as the definition of “altruistic”.

“Another important issue that needs to be considered is whether surrogate mothers should receive reimbursement for reason-able expenses from the commissioning parents, such as hospital fees and medical costs, even though commercial surrogacy will not be allowed,” Hatzistergos said.

Surrogacy for same-sex couples would one of the most pressing issues for the review, he said.

Gay Dads Australia has an online guide at www.gaydadsaustralia.com for local men seeking commercial surrogacy in the US, including where to find the mother and some of the legal obligations before returning to Australia. It estimates the whole procedure can cost up to $200,000 once medical bills are considered.

[Link: Original Article]

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Australian Gay & Lesbian Law Blog - "English Court of Appeal case: child can have three parents" by Stephen Page

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called "Australian Gay and Lesbian Law Blog". [Ed - Rodney Cruise]

In the recent English Court of Appeal case of
In the matter of:
Re A (A Child: Joint Residence/Parental Responsibility), the court affirmed an earlier English decision that a child can have more than two parents.

The question arose when, after the commencement of bitter litigation and the obtaining of a family report that recommended a joint residence between the mother and her former partner, the mother then said that she wasn't sure that her former partner was the father, and it could have been another man, and yes indeed the DNA test showed the other man was A's father.

Not surprisingly, the mother was criticised for her behaviour, as was the former partner, in his case for having set up CCTV in their home without her knowledge!

The interesting legal point was as to what constitutes a "parent". This is of particular relevance in Australia given that the Family Law Act does not adequately define "parent".

Section 4 of the Family Law Act defines "parent" thus:

"parent" , when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.

However, section 60B, in looking at the objects of Part VII, which deals with parenting issues, talks about "both of their parents" and "both their parents" and section 60CC(2) refers to "both of the child's parents". Subsection (3) in various places talks of "each of the child's parents" and (4A)"if the child's parents have separated" again indicating that there can only be two- presumably the biological parents.

The English Court of Appeal, in rejecting the appeal, said that the mother's former partner was a "parent", meaning the children had three parents.

The court followed the decision of the House of Lords in In re G (children), in which Baroness Hale said that there were three types of natural parents:

There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.

But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others.

Re G was a case involving a fight between a lesbian couple about their children. The biological mother, who had used an IVF clinic, tried to stop her former partner from having anything to do with the children. The case, on appeal, turned on the issue of whether the children should be removed from the mother and placed with her former partner. The mother was ultimately successful.

Baroness Hale concluded:

I am sad to see these two women, who deliberately brought these children into the world for them to share, and who both love and want the best for them, locking themselves into the same sort of battles that, sadly, we so often see between mothers and fathers. I hope that they can now move on from this dispute into a happier and more co-operative future for the sake of their children.

[Link: Original Article]

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