Australian Gay & Lesbian Law Blog - "QLD: Fatherhood Just Got More Interesting" 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]


Back in May I posted about how Queensland Attorney Kerry Shine was seeking to amend the Status of Children Act so that the position of IVF dads becamse clear- if they were to donate sperm to single mums or a lesbian couple, then they would not be dads in law.

I had chased up Kerry Shine's office- twice- as to whether the proposed changes would cover men offering sperm to their female friends, but my calls were not returned and I was none the wiser.

Last week a friend told me that he was considering donating sperm via a website: http://www.free-sperm-donations.com/ . He ultimately had second thoughts.

At the time that Kerry Shine made the announcement, he considered that part of the reason for making the changes was so that sperm donors to IVF women would not be fathers and therefore would not be required to pay child support. He proposed that the laws be retrospective to 1988- when the Status of Children Act was enacted!

Because of my friend's situation, I looked over the weekend, and found that tucked in at the back of the Guardianship and Administration and Other Acts Amendment Bill were these proposed changes.

So what do they mean? If enacted, the Bill would make ensure that if a woman other than a married woman were to have a child by a sperm donor- if she were to go through IVF, then the donor will NOT be the father and will never have the rights of fatherhood unless and until he marries her. It doesn't matter if the woman and the man agree that he is to have those rights- that agreement is irrelevant.

However, if the man donates sperm to the mother other than through IVF, then it is possible that he might be considered to be the father, in which case there would be certain rights under the Family Law Act, including the presumption of equal parental responsibility, and the obligation to pay child support.

Although there are two decisions of the Family Court which in part dealt with Victorian legislation which would suggest that the known sperm donor would not be a father or parent under the Family Law Act and under child support legislation, there is no guarantee that that court will follow the same approach with the Queensland legislation, especially when the Attorney expressly stated that part of the purpose of the legislation was so that donors would not have to pay child support. If the legislation that he is proposing does not include known donations other than via IVF, then this of itself raises the possibility that known donors other than through IVF might be treated as fathers and liable to pay child support (and seek to make decisions about the child and spend time with the child, maybe even equal time, relying on the Family Law Act).



[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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ABC Online - "No adoption rights for same-sex couples: Bligh"

Ms Bligh says only about 20 babies are now put up for adoption each year in Queensland.

Queensland Premier Anna Bligh says same-sex couples will not be allowed to adopt children under proposed new laws.

State Cabinet yesterday approved several changes, including allowing de facto couples in long-term relationships to adopt.

The Government has also released a discussion paper on whether to give children and 'birth parents' involved in pre-1991 adoptions more access to information about each other.

Ms Bligh says only about 20 babies are now put up for adoption each year in Queensland.

"In an environment when you have such a small number of babies and such a large number of couples seeking to adopt, the onus is on the state to make a judgement about the best possible placement for a child and the prospect of that being anything other than couples as I have described, we think is very low," she said.

[Link: Original Article]

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Herald Sun - "MPs also choose on gays' fertility rights" by John Ferguson

STATE Cabinet has backed a vote among Labor MPs on legislation covering fertility treatment access for gays and single women.

Premier John Brumby has told the MPs they will have a free vote on assisted reproductive technology (ART) and surrogacy.

The Government is drafting legislation to better enable gay couples and single women to have children and expects it to be tabled this year.

Last week's decision to allow a conscience vote will appease concerns raised by Catholic MPs uncertain about the broadening of treatment, including IVF.

Opposition Leader Ted Baillieu is also set to allow his MPs a free vote, though this depends on the Bill's detail.

Mr Brumby has previously supported a conscience vote on abortion reforms being backed by the Government, making the last half of the year a potentially divisive environment in the State Parliament.

The Premier told MPs the ART issue was complex and the sort of subject on which MPs could determine their position on the basis of their own conscience.

Attorney-General Rob Hulls announced plans to reform ART legislation just before Christmas.

Mr Hulls said that the changes would bring Victoria into line with other states and "better reflect the reality of modern families".

"The reality is that many Victorian children are already born to same-sex couples and to single women and yet those children don't enjoy the same legal protections as others," Mr Hulls said in December.

The changes are set to be based on the recommendations of the Victorian Law Reform Commission.

Under those proposed changes:

GAYS would not be forced to travel interstate for treatment to become pregnant.

A PANEL would be set up to screen people seeking the treatment in a clinic if convicted of a sexual offence.

SURROGACY arrangements would be changed to make it easier for surrogate mothers to receive treatment.

THE ban on commercial surrogacy would continue.

THE mother's female partner would be recognised as a parent of the child who was conceived using treatment.

[Link: Original Article]

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6minutes.com.au - "Medicare to drop gay discrimination" by Michael Woodhead

Medicare discrimination against gay couples will be eliminated from next year with plans to give same sex couples and their children equal rights to Medicare and PBS safety net thresholds, the government has announced.

At the moment, same-sex couples are not considered a family but as two individuals for the safety nets. Likewise, children of same-sex couples are treated as the family member of only one of the parents, creating an additional financial burden by not having everyone included in each safety net.

But new legislation to come into effect from 1 January 2009 will redefine couples and families in the national health and health Insurance acts so that “people in same sex relationships will have access to the same financial entitlements as couples who are either married or in de-facto relationships,” says Medicare Australia.

Medicare has also announced that restrictions on reversal of elective sterilisation have been removed from 1 July to allow fertility restoration.

[Link: Original Article]

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News Limited - "Gay Aussies using Rent-a-Womb Women" by Tamara McLean

MORE than 100 gay Australian couples have paid $80,000 to create a baby using rent-a-womb women in the United States, a fertility clinic says.

The controversial scheme, branded as "one-stop baby shopping", is becoming increasingly popular among professional gay men in Sydney and Melbourne, according to The Fertility Institutes based in Los Angeles.

"We've seen more than 125 gay couples from Australia who have gone home with a baby," said the clinic's medical director, Dr Jeffrey Steinberg.

"We're up to six to eight a month now, which is a four-fold increase over two years ago.

"That makes Australia one of our biggest markets, neck-and-neck with Britain."

The specialist program, the first dedicated to two-father families, allows gay men to pay for surrogate children, a practice which is illegal in Australia.

Couples pick a donor from a list of 400 university students and her eggs are then implanted in a different woman who bears the child.

The process allows sex selection and complete anonymity between the male parents and the donor.

"They are almost all professional, working men who obviously have a bit of money and desperately want a child," Dr Steinberg said.

"They've got busy lives and obviously a lot of restrictions on them down in Australia so it's something we can sort out for them for between $US75,000 and US$80,000."

Surrogacy laws in Australia vary from state to state, with altruistic surrogacy, in which the woman who carries the child is not paid, allowed in some jurisdictions.

State and federal governments are moving to consider nationally consistent law on the practice, however, this is unlikely to be extended to gay couples.

Britain, Canada and many Asian nations are similar, while the US has legalised paid surrogacy for all couples.

One Melbourne couple going through the process, Simon and Tony, say the US situation offered "huge hope" for their wish to be parents.

"We were simply unable to do that here unless we wanted to take the turkey baster option, and that wasn't available to us," said Simon, who requested anonymity.

The couple, whose surrogate is yet to conceive, know of six other Australian couples who have baby through the scheme.

Rod Goodbun, a spokesman for Action Reform Change Queensland, said it was important gay couples had such options available to them in Australia, ideally under an altruistic arrangement.

But Professor Michael Chapman from Sydney IVF said the nation was not ready for such a step, especially if those involved were paid.

"If a service is provided overseas then so be it but community norms at this point in time would not support it here."

[Link: Original Article]

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Same Same - "More Good News for Gay Families" by Christian Taylor

More good news from the Gay & Lesbian Rights Lobby! At the beginning of the month we saw the historical passage of the 2008 Same Sex Relationships Bill through NSW Parliament, which provides equal parenting rights to co-mothers of children born through donor insemination and allows both mums to be listed on their child’s birth certificate.

In addition to this, now comes the recognition of same-sex couples and their children in the Federal Government’s newly released National Employment Standards. This will guarantee equal entitlement for same-sex couples to carer’s leave, bereavement leave and parental leave as well as rights in relation to flexible working arrangement for parents with children.

“It is encouraging to see the Rudd Labor Government incorporating the HREOC recommendations into the new National Employment Standards,” said Emily Gray, Lobby Co-Convenor. “This will provide the vast majority of families in our community with greater financial and workplace security, ensuring that lesbians and gay men can take leave to care for their partners, children and other family members.”

If passed by parliament, same-sex partners will be treated as members of each other’s immediate family.

“We welcome the sincerity shown by the Rudd Government in getting on with the job of removing discrimination against same-sex couples and call on them to continue this process in any future legislation,” said Peter Johnson, GLRL Co-Convenor, “It’s time for the Coalition to stop delaying same-sex reforms and work with the government to remove discrimination against lesbians and gay men across Australia.”

[Link: Original Article]

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Adelaide Advertiser - "Gay couples lose surrogacy access" by Joanna Vaughan

AN amendment to give same sex couples legal access to gestational surrogacy was rejected by the Upper House last night.
Labor MLC Ian Hunter introduced an amendment to the surrogacy Bill that would allow anyone who had been in a domestic relationship – including those in a same sex relationship – access to gestational surrogacy, on the grounds of making the Bill non-discriminatory to gay couples.

The Legislative Council last night passed the Bill to allow gestational surrogacy, which is a medical process usually used as a last resort when a woman cannot carry a child.

The practice was illegal in South Australia, but allowed in the Australian Capital Territory and New South Wales.

Under the procedure, a fertilised egg is implanted in a surrogate, who carries the child.

Upon birth, the surrogate relinquishes the child to the commissioning couple.

The surrogacy Bill was introduced by Liberal MLC John Dawkins in 2006 following reports that couples had travelled interstate to have the treatment, only to return home to face legal issues.

At the time, it was reported that some parents were so desperate to get their child legally recognised, they were committing medical fraud.

Mr Hunter said although it would be unlikely for gay couples to ever use gestational surrogacy, it was not fair to write legislation that discriminated people on their sexuality.

"We thrashed out the domestic partners bill in this place two years ago, giving same sex couples legal wrights, and now to have new legislation that is discriminatory towards them is just deplorable," he said.

Mr Hunter who chaired a social development committee investigating gestational surrogacy and has previously supported the legislation, said he could not vote for it if his amendment was defeated.

The amendment was easily defeated with all Liberal members, some Labor including Carmel Zollo and Bernard Finnigan and Family First voting it down.

It was supported by Labor MPs Mr Hunter and John Gazolla, Greens MLC Mark Parnell, Democrats Sandra Kanck and Independent Ann Bressington.

[Link: Original Article]

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ABC Online - "Surrogacy change backs biological parents"

A bill to recognise the biological parents of a child born to a surrogate mother has passed the Upper House of the South Australian Parliament in a conscience vote.

Biological parents have not been legally recognised as the parents of a child born through surrogacy.

Amendments were defeated to recognise same-sex couples in the legislation.

Labor MP Ian Hunter thinks the bill is discriminatory because it applies only to heterosexual couples and says he could not support it without the amendments.

"I would love to be able to support a bill which didn't discriminate against gays and lesbians but allowed gestational surrogacy, but I certainly cannot support a bill that enshrines into legislation discrimination once again," he said.

"We fought that battle and we won it and I don't want to retreat."

[Link: Original Article]

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The Age - "Gay parents winners under workplace changes" by Misha Schubert and Ben Schneiders

GAYS and lesbians would win the right to take one year each of unpaid parental leave from 2010 under changes to Labor's employment standards.

But the move could face resistance in the Senate, where conservatives have flagged their unease over gay parenting.

Unveiling its final draft of a legal safety net, the Rudd Government also conceded the need to protect a lost tribe of workers.

Labor yesterday asked the Australian Industrial Relations Commission to create a generic award to cover workers falling outside the award system. It aims to guarantee all lower-paid workers 10 basic conditions, including the minimum wage.

But Prime Minister Kevin Rudd came under fire in Parliament for refusing to guarantee that no worker would be worse off under the safety net. Instead, he attacked the Coalition's WorkChoices regime.

Deputy Opposition Leader Julie Bishop seized on his refusal to give a guarantee, contrasting it with his pledge earlier this year that no working family would be worse off under laws to abolish workplace agreements.

Labor's proposed safety net includes 10 statutory conditions and 10 award conditions. Since its first draft was released in February, the Government has acceded to employer demands that workers must hold a job for at least 12 months before they can request flexible conditions such as working from home.

It also made changes to parental leave, which would give gay parents the same rights as the rest of the community. Nationals senator Barnaby Joyce suggested the move showed the Government was not genuine in its commitment to marriage.

"If you say you believe in marriage between a man and a woman, you have got to be fair dinkum about it, you can't draw a line in the sand somewhere around Western Australia," he said. "The best outcome for a child is a happy family made up of a man and a woman."

If the Coalition opposes the change, Labor would need the votes of the Greens, Family First's Steve Fielding and independent Nick Xenophon in the Senate. Australian Christian Lobby chairman Jim Wallace said the move was an "inevitable consequence" of the broader push to enshrine equality for same-sex couples.

Industrial lawyers said the Government's work standards left many questions unanswered. FCB partner Ben Gee described them as a "lovely statement of aspirational workplace rights" but "there aren't any penalties or sanctions".

Australian Chamber of Commerce and Industry chief executive Peter Anderson said the standards would add "costs and inflexibility to business management" but were not extreme.

ACTU secretary Jeff Lawrence said they did not go far enough and unions would push for improvements.

[Link: Original Article]

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MCV - "Relationships and the Law"

Gay marriage, same-sex entitlements, lesbian parents: Australia is in the midst of an important and sometimes confusing debate about legally recognising same-sex couples and their families.

MCV has prepared this special feature to guide you through your rights in state and federal law.

Our guide has been prepared by Australia’s most respected gay human rights advocates and academics. It also includes links to further information.

MARRIAGE

Same-sex marriage is presently recognised in the Netherlands, Belgium, Canada, Spain, South Africa, and, in the USA, in the states of Massachusetts and California.

However, the Australian Marriage Act was amended in 2004 to prohibit any recognition of same-sex marriage in this country.

Some constitutional experts believe the states can enact same-sex marriage laws but this has not yet happened.

If you plan to marry overseas make sure you understand local law. For example, visitors can easily marry in Canada, but it is much harder to obtain a divorce than in Australia.

You should also be aware that your marriage will not be legally recognised when you return to Australia.

Despite opposition from both major parties, support for same-sex marriage is relatively high in Australia (57% according to recent polls).

If you would like to contribute to the campaign for same-sex marriage visit Australian Marriage Equality

CIVIL UNIONS

There is no national civil union scheme in Australia although such schemes do exist at a state level.

There are civil union registries in Tasmania and the ACT. Victoria will have a registry by the end of this year.

These registries provide couples with a way to immediately access all available relationship entitlements in state law, and soon federal law; and to prove their relationship entitlements if challenged in situations like medical emergency.

Registries also provide personal relationships with the official, symbolic recognition of government, and through it, society.

Australia’s registries recognise same and opposite-sex couples, as well as companionate partners in Tasmania and Victoria.

Couples should contact their local Registry of Births, Deaths and Marriages to find out how to have their civil union registered.

Couples can also enter a municipal civil union in Sydney and Melbourne, or a British civil union at a British Consulate. These unions can provide evidence of the existence of a relationship in some circumstances, but they confer no legal rights in Australian law and are largely symbolic.

ACT - City of Sydney - Tasmania - Relationships Tasmania - City of Melbourne - City of Yarra

DE FACTO COUPLES

Australian federal law gives married and opposite-sex de facto couples the same legal rights and responsibilities.

The Federal Government is currently extending the definition of de facto partner to include same-sex partners across all federal laws, beginning with superannuation in mid-2008 and ending with social security in mid-2009.

Other areas where relationship entitlements will be extended include taxation, immigration and workplace entitlements.

All Australian states and territories give opposite-sex de facto couples the same legal rights and responsibilities as married couples. They also give same-sex de facto couples the same entitlements in areas like wills and intestacy, property division and state taxes and pensions.

Parenting rights are not yet extended to same-sex partners in Victoria, NSW, Queensland and South Australia.

Definitions of what constitutes a de facto relationship differ between the states. With the exception of Tasmania there is usually a requirement that de facto partners live together for a certain period before qualifying for relationship entitlements.

Human Rights & Equal Opportunity Commission

YOU AND YOUR CHILD

Laws dealing with family and children are split between state and federal governments.

Some states, including WA, Tasmania and the ACT, allow co-parents in same-sex relationships to adopt their partner’s children. WA and the ACT allow same-sex partners to adopt children relinquished by other people.

Most states allow women in same-sex relationships to access IVF and other fertility services. The exception is Victoria where reform is expected soon. Some states including WA, the ACT and the NT allow co-mothers to be deemed legal parents of children born through fertility treatment. Reform is expected soon in NSW, Victoria and Tasmania.

The Family Court allows child custody disputes to be resolved if the parents are in a same-sex relationship. Disputes over child support and property division are still resolved in state Supreme Courts, but reform is also imminent.

Only the ACT recognises surrogacy arrangements between surrogate mothers and same-sex couples. Surrogacy is available in other countries such as the US, but these arrangements are not automatically recognised in Australia.

None of the other countries with which Australia has adoption protocols allows same-sex partners to adopt their children.

Victorian Gay & Lesbian Rights Lobby

Myths and facts about civil unions

Myth: The registries we have in Australia are second-rate civil union schemes.
Fact: Australia’s state registries grant a wider range of rights to a wider range of couples, and with greater ceremonial recognition than most overseas civil union schemes including in the UK and Europe.

Myth: Registering a relationship is like registering a dog.
Fact: A relationship is registered in the same way as a birth, death or marriage: on a register, in a registry, by a Registrar.

Myth: A state relationship certificate has less legal standing than a marriage certificate.
Fact: A certificate guarantees immediate and incontestable access to all relationship rights, just like a marriage certificate.

Myth: A registry is a poor substitute for marriage.
Fact: Registries were never intended as a substitute for marriage for same-sex couples, but to sit alongside marriage as a way to recognise a wider range of partners who can’t or don’t wish to marry.

Myth: Existing registries don’t allow couples to have ceremonies.
Fact: Registries are designed to allow couples to have their relationships recognised in the manner of their choosing, either with a formal ceremony or without.

[Link: Original Article]

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SX - "Getting with the program" by Jenni Millbank

Same-sex parenting reforms have finally been approved, marking the end of a very long road. But the journey is far from over, writes Jenni Millbank.

Last week saw a major victory for our families in NSW, with the passage of the underwhelming titled Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (law reform can be satisfying but I never said it was sexy).

These reforms ensure that same-sex couples are recognised as de facto relationships across all areas of NSW law (the ‘missing pieces’ left over from the 1999 reforms, with the continued and vexing exception of adoption) and strengthen anti-discrimination protection on the basis of same-sex relationship status.

Most importantly, it finally provides parenting recognition from birth to co-mothers of children conceived through donor insemination, making them legal parents in all areas of NSW law. Both mothers can be recorded as parents in the birth register, can have their children listed as siblings, and can both appear on their child’s birth certificate.

These changes will apply to children who have already been born as well as those born after the passage of the law. There is a simple process for mothers to apply to the Births, Deaths and Marriages Registry to add the second mother to the birth certificate.

This is a huge achievement for community activism and grass roots law reform because we devised our own solutions and then slogged away until the government realised they were the right ones. These reforms reflected the proposals devised by the NSW Gay and Lesbian Rights Lobby in And then the Brides Changed Nappies in 2002 and 2003. I am so proud of the Lobby’s commitment and professionalism over the years; this simply would not have happened without them.

These changes bring NSW into line with similar laws now in place in Western Australia, the Northern Territory and the ACT (with Victoria set to follow later this year), and will help to bring pressure to achieve the same kind of recognition in federal law in the near future.

This system is far more accessible, equitable and broad-reaching than second-parent adoption, in place in many US states, because it does not require a court process. Rather, recognition applies automatically from birth and simply requires that the co-parent consented to assisted conception, regardless of whether conception took place through a clinic or informally at home.

Some press reports have misrepresented the changes as removing rights from fathers, including gay fathers. Nothing could be further from the truth. These changes add a mother to lesbian-led families that previously only had one legal parent.

Sperm and egg donors are not legal parents under current law anywhere in Australia, even if they have a relationship with the child and even if they have been listed on the birth certificate. If mothers have listed a donor as the father in the past this did NOT make him a legal father, but it should be noted that he will only be removed from the birth certificate with his permission or following a court hearing.

Of course there is still more to be done. We need to work together to make adoption open to all and to ensure that parental rights are also included in the new federal reforms. If genuine multiple-parent caregiving is happening in lesbian and gay families we should pursue modes of recognition that can accommodate the needs of such families.

In my view it is also time to create a careful and transparent scheme for the transfer of parental status to commissioning parents in surrogacy arrangements, including gay fathers who have children through this process. But these goals shouldn’t detract from celebrating the magnitude of what we achieved last week.

Jenni Millbank is a Professor of Law at the University of Technology, Sydney. She is the lead author of And then the Brides Changed Nappies report, published in 2002.

[Link: Original Article]

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SX - "Hope for prospective HIV-positive dads" by Katrina Fox

HIV-positive gay men who want to become fathers can do so in the US, thanks to new developments in assisted reproduction technology and legislation changes in California.

Growing Generations, the US’s largest surrogacy agency, has launched a new program that provides surrogacy and egg donation services to men with HIV and allows them to use their own sperm to create biological families.

“Reproductive technologies have developed to the extent where they can now identify and separate the virus from semen so they can have virus-free semen used for insemination,” Anthony Brien, moderator for social networking group Gay Dads NSW, told SX.

The group has invited Kim Bergman from Growing Generations to give a talk next week on surrogacy options for gay men, including those who are HIV-positive. While surrogacy is not permitted under Australian law, those who can afford it can travel to the US, contract a surrogate to carry a child for them and then bring that child back to Australia.

“We have a number of dads in Australia who are parents that way,” Brien said.

ACON CEO Stevie Clayton said there is an option for HIV-positive men’s sperm in Australia to be ‘washed’ to remove HIV. “But this process can be prohibitively expensive,” Clayton told SX.

Gay Dads NSW information night with speakers Kim Bergman from Growing Generations and gay men who have gone through the surrogacy process will be held on Monday, June 16, 7pm at Twenty10 offices, 43 Bedford St, Newtown. RSVP to GaydadsNSW-owner@yahoogroups.com.

[Link: Original Article]

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Joy 94.9 - Allegro Non Troppo - "Gay Dads!"

Gay Dads! Homosexuals wanting to be parents is a quite a political and ethical hot potatoe at the moment. Why? Why do so many politicians consider that Gay men (In particular) in relationships or single, do not qualify as having qualities to make them good parents? In this show we look at 2 situations, Damien in Adelaide who does long term foster care with the blessing of all governments and communities, and Jason and Adrian who used overseas surrogacy to become parents.

Click here to listen CD Quality Mono Quality

[Link: Original Article]

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The Age - "Gay couples face long wait for equal rights" by Misha Schubert

DISCRIMINATION against gay couples in federal laws will continue for months, after the Opposition last night vowed to delay any changes until all the proposed reforms are put before the Parliament.

After an emotionally charged debate last night, the House of Representatives passed laws to give gays and lesbians the right to inherit their partner's public sector superannuation or death benefits.

But the Coalition will use its Senate majority to send the bill to an inquiry that will consider giving the same rights to other interdependent couples.

It also flagged that it would not support making such changes until it sees all of the same-sex reform bills proposed by Labor.

Opposition Leader Brendan Nelson last night gave in-principle support to the reforms to end discrimination against gay couples, but warned that undermining marriage may be a consequence of passing such laws.

Dr Nelson said any delay was the responsibility of the Government — not his party. "It is more important that this be done properly, than it be done immediately," he said.

Labor MP Shane Neumann insisted the changes would not undermine the special place of marriage but merely gave gay partners the same entitlements to payments.

"The God that I worship at my church I don't think is offended in the least bit by the fact of this legislation," he said.

Liberal MP Stuart Robert warned that by replacing references to a "marital relationship" with a "couple relationship" in the super laws, it may "slowly chip away at the institution of marriage".

He also opposed moves in the bill to give inheritance rights to the children of a non-biological gay parent, arguing it would support the practice of gay IVF.

And he asserted that "health insurance funds should not be legally bound to recognise homosexual couples and children as families — some funds may have an ethical objection to this and they should retain the right to uphold their views as to what constitutes marriage and family life."

Labor MP Arch Bevis accused Dr Nelson of opting to "pander to that more extreme right-wing conservative group behind him on the Opposition benches" by refusing to pass the laws quickly.

Queensland Labor MP Graham Perrett urged the Parliament not to deprive same-sex couples of their entitlements "for one minute more than is necessary". He told of his two gay brothers, Nick and Simon, who had found it difficult to come out in a small country town.

"I hope that one day my darling brother Nick will be the beneficiary of the changes before the House," he said.

Shadow treasurer Malcolm Turnbull hit back at critics who accuse the Coalition of delaying the end of discrimination, arguing the Government was free to backdate the laws to whenever it chose.

"That would ensure that those people who are concerned that they might die or their partner might die before this becomes the law of the land, that concern can be set aside and the Parliament can focus on getting the legislation right," he said.

"So let's stop the suggestion that the Liberal Party is homophobic."

[Link: Original Article]

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Australian Gay & Lesbian Law Blog - "NSW: Bill passes Upper House" by Stephen Page

(Stephen Page) previously reported that New South Wales Attorney-General John Hatzistergos had introduced a Bill to Parliament to amend 55 pieces of legislation, including now providing a presumption that where a woman gives birth and is in a lesbian relationship and going through IVF, then her partner will also be deemed to be a parent.

This Bill, with amendments, has now passed the Upper House and is on its way to the Lower House.

Fred Nile's most significant amendment was to allow fathers to be shown on the birth certificate for children of lesbian couples, if the fathers wanted to. Here is what he (and Hatzistergos) said:


[Fred Nile]Insert after clause 5 (2):

(3) If the particulars supplied to the Registrar under section 14 of the Act specify that:

(a) a parent who is the father of the child wishes to be identified in the Register as the father, or

(b) a parent who is the birth mother of the child wishes to be identified in the Register as the mother,

or both, the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.

The amendment seeks to address the criticism that the bill's wording seems to devalue the role of the father in that it gives the appearance that the father would not be shown on the birth certificate in this circumstance. What appeared to be an omission and a downgrading of the role of the father has caused a deal of concern about the legislation as a whole; indeed, most of the criticism has focused on that aspect. I have been endeavouring, as have other members, to find a way of resolving that situation. The Attorney General has indicated that it was never the Government's intention to make any statement in the legislation about the role of the father or the importance of fatherhood. If that is the case—and I believe it to be the case—I seek the Government's support for the amendment and the support of Opposition members by way of a conscience vote.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [11.22 p.m.]: The Government will support the amendment. As I clearly indicated in my second reading speech, it is not the Government's intention to modify the way birth certificates are issued in the sense of removing the names of mothers and fathers. Indeed, the current practice in relation to the naming of mothers and fathers has been an administrative practice that is not regulated by specific provisions. However, in order to allay any concerns we are happy to support the amendment.

Click here for Hansard of the debate.

[Link: Original Article]

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ABC Online - "Rights Win for Lesbian Families"

The rights of New South Wales children with lesbian parents have been expanded under legislation passed by the State Government.

The law clears the way for children from lesbian couples to inherit money from their non-birth parent and receive workers' compensation on behalf of their non-birth parent.

It also allows both mothers to appear on their child's birth certificate.

NSW Attorney-General John Hatzistergos says the Bill is a big step.

"It means that the non-birth parent will have obligations to that child in the same way that every other parent has," he said.

"It also means that child will have the same relationship with the non-birth parent as they do with their birth parent."

Mr Hatzistergos says shadow attorney-general Greg Smith defied his own party in voting against the Bill.

"The Opposition is hopelessly divided on this issue but it's important to recognise that the vote was carried 64 to 11," he said.

"With Mr Smith being one of the few leading spokespersons within the Opposition voting against the legislation, he not only defied his leader but also the leader of the National party."

Emily Gray, from the Gay and Lesbian Rights Lobby, says many Liberal MPs, who voted against the reforms, were confused about the meaning of reforms.

"A lot of that was stemming from the fact that they believed that fathers would be removed from birth certificates following these reforms and that's just simply not true at all," she said.

Ms Gray says the changes have been long-awaited.

"With 71 per cent of the Australian population now supporting equal rights for same-sex couples, it's about time that this equality came through," she said. "We're really happy that it has."

[Link: Original Article]

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Sydney Star Observer - "Rudd's Broken Promise" by Emily Gray & Peter Johnson

In response to the 2007 pre-election survey from the Gay and Lesbian Rights Lobby and ACON, Kevin Rudd and the Australian Labor Party promised the following: “Labor is committed to equality for gay men, lesbians and same-sex couples and, if elected, will remove provisions which discriminate on the basis of sexuality, with the exception of the Marriage Act.”

Last week the federal government indicated that it would not be including the Family Law Act 1975 in its first raft of reforms to provide equality for same-sex couples. A few weeks ago the Rudd government announced its plans to introduce equal rights for lesbian and gay couples in many areas. We will have the same super benefits, tax breaks and access to healthcare as straight couples. The Rudd Labor government has decided not to include the Family Law Act 1975 at this time. If they continue to exclude it, this will be a broken promise.

The omission of the Family Law Act 1975 from the package of announced reforms will have a number of discriminatory impacts for our community. A lesbian co-mother will not be recognised as a “parent” in child-related court proceedings in the Family Court. This creates uncertainty for a child in the event of a relationship break-up. This also means that a birth mother cannot pursue child support through the Child Support Scheme from the co-mother in the event of a break-up. Already, lesbian parents have to go to enormous financial and personal costs to secure child support for their children and resolve conflicts on the breakdown of a relationship.

Leaving out this reform will also contribute to discrepancies between federal and state law, leaving couples uncertain about their rights and the rights of their children. We are talking about a significant number of people. An estimated 20 percent of lesbians have children and this figure is likely to be increasing. The 2006 Census recorded at least 4,386 children living in same-sex families in Australia. This change is necessary to ensure the majority of same-sex families are treated equitably. It is in the best interests of these thousands of children to have the economic and emotional security which comes with the legal recognition of their families

[Link: Original Article]

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