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Surrogacy and LGBIT family issues- what now for the ACT?

By July 7, 2016No Comments

By Cristina Huesch

A new ACT bill, the ‘Justice Legislation Amendment Act 2016’ has been passed into law by the ACT Government although the commencement date has not yet been fixed (the default date is 29 August 2016).

Once commenced, this Act will amend the following laws which are relevant to family law type issues:

Births, Deaths and Marriages Registration Act 1997;
Births, Deaths and Marriages Registration Regulation 1998;
Parentage Act 2004

The language of some laws will change. “Mother” will become “birth parent”. (A birth parent will be the person who literally gave birth).  Some reference to ‘his or hers’ will now be to ‘the person’s” which show a move away from the binary male/female descriptions in much legislation. A reference to ‘father or other parent’ will now simply say ‘other parent (other than the birth parent).’ The reference to ‘mother’ or ‘father’ may now be used to describe either or both parents of a child.

Much of the gender-specific language about parents in the Parentage Act 2004 is changed.For example, entire sections now speak of a child ‘born to a person’ and ‘the person’s spouse, civil union partner or civil partner’.

A person can apply to have their birth certificate registered to reflect the sex they believe they are (with provisions for some clinical treatment to have taken place OR the person to be an intersex person). Also, parents of a child can request changes to a certificate to reflect the above, on behalf of their child. Both parents need to make the application, unless there is only one parent (the other not known or died).

The new amended laws will have some particular requirements for the evidence and documents to be filed with the application for a new birth certificate.

The Act will also set out changes impacting surrogacy.

Where someone undergoes IVF for example, they will conclusively be presumed to be the parent of the child born. A woman who donates an egg will be conclusively presumed NOT to be a parent, and a sperm donor will also conclusively be presumed NOT to be a parent.

If the birth parent undergoes IVF (or similar) with the consent of her partner, it is that partner who is presumed to be the parent of the child (not the egg or sperm donor). It will be very interesting to see how this plays out in real life particularly in situations for example where a lesbian couple ask a gay friend to donate sperm via ‘turkey baster’. (In fact the new law proposes that it is irrelevant whether the ‘procedure’ was medically assisted or not, so long as no old fashioned sexual intercourse took place.)

This area of law is complex and constantly evolving. The Family Law Act, Child Support legislation, the Territory’s Care & Protection laws and the Parentage Act all intersect and in some places overlap or alternatively miss bits leaving various cases to be decided on the very unique circumstances of each case (at times different judges making different decisions).

If you have any legal questions or issues arising from surrogacy, adoption, or LGBIT related issues in the ACT, please do not hesitate to contact our team of experienced family lawyers, headed by Cristina Huesch, Accredited Specialist, for further advice.


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