Talking Turkey

Am I as the co-parent considered to be the child’s parent?

Recent changes to the Family Court mean that in the event that the co-mother was in a de-facto relationship with the biological mother at the time of conception and consented to the procedure then she is considered a parent under the Family Law Act.

Recent changes to the Status of Children’s Act 1996 (NSW) extends to same sex partners of birth mothers the presumptions applying under that Act in relation to children born as a result of a pregnancy achieved by a fertilization procedure.

S11(1) of the Status of Children’s Act 1996 (NSW) says:

”A person is presumed to be a child’s parent if the person’s name is entered as the child’s parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction.”

Recent changes to the Births Deaths and Marriages Registration Act 1995 provides for co-parents to be on the Birth Certificate.

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

No. The donor is not considered at law to be the father of the child.  If you are in a lesbian relationship at the time of the child’s birth then the child is regarded at law as not having a father.

Am I liable to pay child support for the child?

Yes, you may be liable for payment of child support.

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 interest 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 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 happens to the child if my girlfriend (the biological mum) and I split up?

Come and see Clayhills Solicitors.

We can act for you and apply to the Family Court or the Federal Magistrate’s Court for orders in relation to the child

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."