Gay Dads Australia

Stephen Page, my favourite blogger on all things legal and GLBTI has published some notes on the new Surrogacy laws that come into force this week in Queensland.  Visit his blog at Australian Gay and Lesbian Law Blog.

Queensland’s Surrogacy Act 2010 starts Tuesday. The latest of the states to legalise altruistic surrogacy, the Queensland scheme has a number of unique features:

• the starting point is that altruistic surrogacy from Tuesday will be legalised. Until Tuesday, to have engaged in altruistic surrogacy in Queensland has been an offence. Whilst there has been some doubt about the Tasmanian laws, Queensland seemed alone in criminalising all forms of surrogacy.
• the odd position of State boundaries remains. Only Queenslanders will be able to access the Queensland scheme. This is because the ability to obtain orders for intended parents can only be accessed by Queenslanders. This in turn will probably limit the use by IVF clinics of to whom they offer their services. Conversely, there is no limit in NSW, but there is no ability in NSW to have intended parent orders, as adoption is the only option (and adoption is not available to all).
• Queensland continues to ban commercial surrogacy. It is an offence to engage in commercial surrogacy in Queensland. This criminalisation not only affects the doctors and nurses, but the intended surrogate and the intended parents, too.
• Queensland couples who have gone to an overseas commercial surrogacy clinic and returned with a baby will (with some  exceptions) still need to obtain a Re Mark order from the Family Court recognising that both parents can make parental decisions. These are not hard to get, if done properly. There are some tricks of the trade to ensure that they are obtained in as straightforward and cheap manner as possible. Adoption for these couples is unlikely to be possible under Queensland’s scheme.

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Stephen Page of the wonderful Australian Gay and Lesbian Law Blog has published some guidelines for prospective lesbian parents in Queensland.  He is one of my favourite bloggers and worth subscribing to his feeds.

1. Get legal advice before the child is conceived!
Once the child is conceived, too late! Same sex parenting can be a legal minefield about legal rights and responsibilities. Don’t create a mess and then wonder what went wrong.

2. At the time of conception, you must live in a de facto relationship.
If you don’t live together in a de facto relationship, the laws don’t apply to you. The mother will be    presumed to be single. Overseas same sex marriages are not recognised in Australia. Being in a de facto relationship at any time during the pregnancy, or at the time of birth; but not conception, is too late.

3. The form of conception must be artificial.
If your partner had sex with the man, resulting in conception, the laws do not apply to you. The man is the father, both by genetics and law. IVF is not required. A turkey baster or syringe is sufficient.

4. Your partner should not be married.
There seem to be conflicting, or potentially conflicting rules if the mother of the child is married. It is quite possible that the mother might be married and in a de facto relationship with another woman eg the mother separated from her husband some years before, but never bothered to get divorced.

5. The father must not be shown on the birth certificate.
If he is, then you cannot have him removed from the birth certificate without a court order. Good luck!

6. The birth must have been in Queensland.

7. The birth can have been at anytime.
The change is retrospective: it can be anytime before, on or after 1 June, 2010.

8. You’re shown as "parent" and your partner is shown as "mother" on the birth certificate.

9. Two’s company, three’s a crowd.
There is only allowance for up to two people to be recognised on the birth certificate: the mother; the mother and father, or mother and partner.

10. Both you and your partner fill out the form.
Lesbian co-parents will be recognised for the first time in Queensland law on their children’s birth certificates, starting this Tuesday 1 June.

The changes are contained in the Surrogacy Act 2010 which was passed earlier this year, but does not take effect until Tuesday. That Act made changes to both the Status of Children Act 1978 (which governs presumptions about parentage of children) and the Births, Deaths and Marriages Registration Act 2003, which (obviously) deals with the registration of births, deaths and marriages.

[Source: Original Article]