Minefield of same sex parenting

Minefield of same sex parenting

If you are gay or lesbian, and thinking of having children, then please oh please get some legal advice before you do so. That way you can at least see the way forward through the minefield, and make decisions fully informed.

Some contentious areas:

  • In a lesbian relationship, the co-mother may not be recognised as a parent. The court might even disbelieve that there was a lesbian relationship and deny the ability of the co-mother to have any relationship with the child.
  • If a known sperm donor donates sperm, then if he engages in intercourse he is not the father. He might under state law be the father if he marries the mother, even if she were in a lesbian relationship at the time of conception.
  • In a lesbian relationship, the timing of whether the co-mother will be recognised under the Family Law Act will depend on how conception occurred (non-intercourse and the co-mother might be recognised, but from intercourse and she will not be) and when it occurred (if they lived in a de facto relationship at conception, she is included, if they did not, she is not)
  • Sperm donor agreements are not legally binding. They give a false sense of security.  
  • If a sperm donor acknowledges paternity, there is then potentially a legal conflict as to whether the co-mother or the sperm donor is recognised as a parent. The law only recognises two parents.
  • Whether or not a sperm donor is able to go to court to see his child will depend on the key facts of the case.
  • Whether a co-mother or sperm donor is recognised as a parent of the child under the Family Law Act will depend on the key facts of the case.
  • Surrogacy may be legal,  illegal, partially regulated or completely unregulated in the jurisdiction in question. Different tests apply from state to state, and internationally, as to the rights of the child, the surrogate and of the intended parents.
  • A lesbian co-mother may be liable to pay child support OR a known sperm donor might be liable to pay child support, depending on the key facts of the case.
  • Overseas birth certificates in which two parents of the same sex are named, may not be recognised for all purposes in Australia.
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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board