Talking Turkey

Is my girlfriend considered to be a parent?

Recent amendments to the Family Law Act mean that your girlfriend may be considered a parent. 

Is the artificial insemination donor considered to be my child’s father?

No.  The donor is not legally the child’s father. 

Do I put the donor’s name or my partner’s name on the birth certificate?

If the donor is named on the birth certificate, the Department of Foreign Affairs and Trade may require you to get his consent before you get a passport for the child.

If you are claiming a Centrelink pension, Centrelink may require you to take steps to obtain child support from the person named as the father on the birth certificate.  If the donor’s name is on the birth certificate you will need to provide evidence to Centrelink that the child was conceived by donor insemination which means that the donor is not considered a parent for child support purposes.

Recent amendments to the Status of Children’s Act (NSW) and the Births, Deaths and Marriages Registration Act 1995 mean that your partner can be on the Birth Certificate.

Is the donor liable for child support?

No.  The donor is not liable for child support payments, even if he is on the birth certificate.  This is because he is not considered, at law, to be the child’s parent.

However, if the donor has promised that he will assist you financially in caring for the child and he then changes his mind, a Court may make orders to enforce his promise.

Does the donor have rights to see the child?

Under the Family Law Act 1975, orders are made in relation to children, having regard to what is in the children’s ‘best interests’ and not because of rights of parents or other adults.

However anyone who can show that they have an interest in the ‘care, welfare and development’ of a child can apply to the Family Court for orders in relation to the child, including orders to spend time with the child. 

The Family Court has been known to made orders for the donor to see the child.  Each case depends on the particular facts of the relationships between the child and the parties.

What if there is a ‘no child contact’ agreement between the donor and I?

This type of agreement is not enforceable but can be useful to show the intentions of the parties if the donor seeks to change the agreement.

Can my girlfriend apply to the Family Court for orders in relation to the child

Yes she can.

In 2005 the principal solicitor of Clayhills Solicitors, Ms Nici Clayhills acted for the non-biological mother who was seeking orders in relation to the child of the relationship.  The result was a very positive one for the non-biological mum. 

The Sydney Morning Herald ran a front-page article, “Mum v Mum: the new custody battle” (by Adele Horin, September 7, 2005)

“Two Sydney women who had a long-term relationship have started a custody battle for a three-year-old boy conceived through donor insemination.

The non-biological mother claims she has been the psychological and emotional parent since the boy was born, and that he has spent more time with her in the years since the couple separated. The looming Family Court battle highlights a dilemma in lesbian relationships where both women may agree to have a child, and raise it together, but only one can give birth. Under NSW law the partner who does not bear the child has no legal rights as a parent.

Nic Clayhills, solicitor for the non-biological mother, said homosexuals had progressed since the 1970s from fighting for rights to recognise difference, to fighting to be accepted as normal.

"That involves wanting the mortgage, the dog, the child and the marriage," he said. "And it's extending to disputes in the Family Court."