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Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called “Australian Gay and Lesbian Law Blog“. [Ed - Rodney Cruise]


Back in May I posted about how Queensland Attorney Kerry Shine was seeking to amend the Status of Children Act so that the position of IVF dads becamse clear- if they were to donate sperm to single mums or a lesbian couple, then they would not be dads in law.

I had chased up Kerry Shine’s office- twice- as to whether the proposed changes would cover men offering sperm to their female friends, but my calls were not returned and I was none the wiser.

Last week a friend told me that he was considering donating sperm via a website: http://www.free-sperm-donations.com/ . He ultimately had second thoughts.

At the time that Kerry Shine made the announcement, he considered that part of the reason for making the changes was so that sperm donors to IVF women would not be fathers and therefore would not be required to pay child support. He proposed that the laws be retrospective to 1988- when the Status of Children Act was enacted!

Because of my friend’s situation, I looked over the weekend, and found that tucked in at the back of the Guardianship and Administration and Other Acts Amendment Bill were these proposed changes.

So what do they mean? If enacted, the Bill would make ensure that if a woman other than a married woman were to have a child by a sperm donor- if she were to go through IVF, then the donor will NOT be the father and will never have the rights of fatherhood unless and until he marries her. It doesn’t matter if the woman and the man agree that he is to have those rights- that agreement is irrelevant.

However, if the man donates sperm to the mother other than through IVF, then it is possible that he might be considered to be the father, in which case there would be certain rights under the Family Law Act, including the presumption of equal parental responsibility, and the obligation to pay child support.

Although there are two decisions of the Family Court which in part dealt with Victorian legislation which would suggest that the known sperm donor would not be a father or parent under the Family Law Act and under child support legislation, there is no guarantee that that court will follow the same approach with the Queensland legislation, especially when the Attorney expressly stated that part of the purpose of the legislation was so that donors would not have to pay child support. If the legislation that he is proposing does not include known donations other than via IVF, then this of itself raises the possibility that known donors other than through IVF might be treated as fathers and liable to pay child support (and seek to make decisions about the child and spend time with the child, maybe even equal time, relying on the Family Law Act).



[Link: Original Article]

How altruistic surrogacy helped Aussie expat, Jonathan Melrose, become a proud dad.

“Hurry up, she’s here,” Naomi yelled through the cubicle wall.

I was taking a piss at precisely the time that our daughter, her birth mother, Naomi, her partner, Jennifer, and my partner, Derek, were coming back from the delivery suite.

Here was our daughter, the most precious thing I had ever seen in my entire life – newly born, all wrinkly, yellow and with a most pissed off look on her face.

But let me go back to the beginning.

Derek and I met in 2000, and pretty soon realised that we were a great team and that this was for keeps.

As all our straight friends started getting married and having children we pondered our own futures. Would we be forever the Uncles? We knew we wanted to create a family, but how?

When the UK introduced Civil Partnerships it also lifted the ban on same sex adoption. We thought this was the route for us.

In the middle of this adoption process, Derek’s first cousin, Jennifer, and her partner, Naomi, were visiting us. At breakfast on their second day, Naomi opened a conversation about surrogacy.

“We’ve been thinking about things,” she said, “and we feel that we can help you with creating your family”.

We were gob-smacked. They had thought through all of the associated issues from conception, pre and post natal, legal and health issues and presented us with an almost complete package. All we had to do was say yes. And of course, we said yes!

The following nine months seemed to drag on forever. We spent a lot of time finalising details around the surrogacy and transference of parental rights.

Jennifer was carrying the baby and all of her medical requirements were taken care of by the National Health Service (NHS). They were incredibly supportive.

Finally, the day arrived. I was at work in London and got the call that Jennifer had been taken to hospital. She was fine and the baby was fine but to be safe we’d better get there – soon. I called Derek and within hours we were off.

On June 27, 2006 our beautiful daughter was born via c-section at Irvine Hospital in Scotland.

Derek went into the delivery suite with Jennifer for the birth. He was so overcome he mistook the time, 10:40, for her birth weight!

Since then it’s been a roller coaster ride: late nights, early mornings, vomit and some of the most amazing nappies you have ever seen. But she melts my heart each day when I pick her up from the child minders and she looks at me and says, “I missed you today, Daddy”.

Ever since she was able to focus on faces she has clearly differentiated between her Dada (Derek) and Daddy (me).

One thing we hadn’t considered was how much our daughter would “out” us once she stared talking.

She’s as proud of us as we are of her – as she points us out to strangers saying, “This is my Daddy and this is my Dada”. Sweet.

The great thing about this is just how much people don’t seem to care – they smile sweetly at her and say that’s great, and tell us that we must be very proud. And we are. We are very proud of her.

She is the future. She and her peers will grow up surrounded by all kinds of families, same-sex families will be just another kind.

[Link: Original Article]

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called “Australian Gay and Lesbian Law Blog“. [Ed - Rodney Cruise]

In the recent Family Court case of Craven & Crawford-Craven, Justice Warnick, sitting as the Full Court, had to consider the question of the father saying that he was unfairly branded by the trial judge as a homosexual. The father had sought equal time to the parties’ child G, which was rejected by the trial judge, finding that the child should spend more time with the mother.

What was apparent from the trial was that the father and mother had separated and the father now resided with his partner, a Mr J.

The father considered that the issue of homosexuality might be important to the parenting orders that were the subject of the appeal.

In his grounds of appeal, the father said:

“That in considering the lifestyle of the [father] as a homosexual as the Federal Magistrate did ……… and describing the father as homosexual in the key words to the reasons for judgment, the Federal Magistrate erred in that he made that determination when there was no evidence that justified such determination.”

The Federal Magistrate said:

“The homosexuality of the father does not, of itself, disqualify him from fully enjoying and fulfilling his role as a parent.”

“I accept that the father and his partner are able to provide for [G]’s needs and to parent him effectively. However, as [G] grows older, issues may arise that the father has to deal with in explaining to his son his personal circumstances. That does not mean that [G] should not continue to spend significant time with his father.

“I do, however, think that the separation of [G] from the mother and his sister for extended periods would not be in his best interests. It would prove to be disjointed for [G]. He would be part of the larger family unit for some of the time and would then be effectively an only child in the father’s household whilst he spent time with him. This may prove difficult for [G] to adjust to. This difficulty is highlighted by the fact that it will be only him who is moving between two households whilst his sister stays with the mother. In my view this concern leads me to conclude that the child should spend more time with the mother than with the father, and it would not be in the child’s best interests to spend equal time in both households.”

Counsel for the father stated:

“The finding [of homosexuality], whilst not having of itself any consequence, is a finding that was not open to the Trial Judge on the evidence that was before the Court, that is, that the father had a homosexual preference, if that finding reflects upon the determinations which the Trial Judge made….”

Justice Warnick noted that the finding as to homosexuality could not be seen to have affected any relevant determination that the Federal Magistrate made. Indeed, it was clear from the discussion that followed the sentence containing the reference to the homosexuality of the father, that the trial judge saw no relevance in it in the case before him.

Moreover, the trial judge noted that the father may have to, in the future, explain his personal circumstances to his son. Indeed, in the last sentence of the paragraph, he especially rejected any such consequence.

In the following paragraph, the trial judge “set out the basis for rejecting an equal sharing of time between parents. The father’s sexual orientation was not a factor.
In any event, while the husband deposed that psychologists and counsellors had identified him “firmly as bisexual” and therefore a more complete description of the circumstances presented at trial might have been that he was a bisexual, living in a homosexual relationship, it is at least arguable that a reference to the homosexuality of the father is not incorrect, that being one part of his orientation, currently forming a basis for his cohabitation with Mr J.”

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Commercial surrogacy that would open up parenting options for gay men will not be considered as part of an in-depth review of Australian surrogacy laws commissioned by NSW Attorney-General John Hatzistergos.

Instead the review will focus on altrustic surrogacy — unregulated in NSW, but banned in many states.

Hatzistergos said there was potential for national consistency, which would be the subject of a consultation paper prepared by the Ministerial Councils for Community Services and Health and expected to be released in the near future.

“Laws in different states and territories are complex and inconsistent, often forcing prospective parents to cross state lines to have children via surrogacy,” Hatzistergos said in a statement.

“I will now be asking the NSW Legislative Council standing committee on law and justice to conduct a full review and report on the issues and this process will allow stakeholders to contribute their thoughts.

“This is an extremely sensitive area, requiring some difficult moral and ethical issues to be resolved.”

He said the first and foremost considera-tion should be the interests of the child.

The review will consider whether the intended parents and surrogate mother should have to meet any criteria, whether the surrogate child should have the right to access information about their genetic parentage, as well as the definition of “altruistic”.

“Another important issue that needs to be considered is whether surrogate mothers should receive reimbursement for reason-able expenses from the commissioning parents, such as hospital fees and medical costs, even though commercial surrogacy will not be allowed,” Hatzistergos said.

Surrogacy for same-sex couples would one of the most pressing issues for the review, he said.

Gay Dads Australia has an online guide at www.gaydadsaustralia.com for local men seeking commercial surrogacy in the US, including where to find the mother and some of the legal obligations before returning to Australia. It estimates the whole procedure can cost up to $200,000 once medical bills are considered.

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Ms Bligh says only about 20 babies are now put up for adoption each year in Queensland.

Queensland Premier Anna Bligh says same-sex couples will not be allowed to adopt children under proposed new laws.

State Cabinet yesterday approved several changes, including allowing de facto couples in long-term relationships to adopt.

The Government has also released a discussion paper on whether to give children and ‘birth parents’ involved in pre-1991 adoptions more access to information about each other.

Ms Bligh says only about 20 babies are now put up for adoption each year in Queensland.

“In an environment when you have such a small number of babies and such a large number of couples seeking to adopt, the onus is on the state to make a judgement about the best possible placement for a child and the prospect of that being anything other than couples as I have described, we think is very low,” she said.

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STATE Cabinet has backed a vote among Labor MPs on legislation covering fertility treatment access for gays and single women.

Premier John Brumby has told the MPs they will have a free vote on assisted reproductive technology (ART) and surrogacy.

The Government is drafting legislation to better enable gay couples and single women to have children and expects it to be tabled this year.

Last week’s decision to allow a conscience vote will appease concerns raised by Catholic MPs uncertain about the broadening of treatment, including IVF.

Opposition Leader Ted Baillieu is also set to allow his MPs a free vote, though this depends on the Bill’s detail.

Mr Brumby has previously supported a conscience vote on abortion reforms being backed by the Government, making the last half of the year a potentially divisive environment in the State Parliament.

The Premier told MPs the ART issue was complex and the sort of subject on which MPs could determine their position on the basis of their own conscience.

Attorney-General Rob Hulls announced plans to reform ART legislation just before Christmas.

Mr Hulls said that the changes would bring Victoria into line with other states and “better reflect the reality of modern families”.

“The reality is that many Victorian children are already born to same-sex couples and to single women and yet those children don’t enjoy the same legal protections as others,” Mr Hulls said in December.

The changes are set to be based on the recommendations of the Victorian Law Reform Commission.

Under those proposed changes:

GAYS would not be forced to travel interstate for treatment to become pregnant.

A PANEL would be set up to screen people seeking the treatment in a clinic if convicted of a sexual offence.

SURROGACY arrangements would be changed to make it easier for surrogate mothers to receive treatment.

THE ban on commercial surrogacy would continue.

THE mother’s female partner would be recognised as a parent of the child who was conceived using treatment.

[Link: Original Article]

Medicare discrimination against gay couples will be eliminated from next year with plans to give same sex couples and their children equal rights to Medicare and PBS safety net thresholds, the government has announced.

At the moment, same-sex couples are not considered a family but as two individuals for the safety nets. Likewise, children of same-sex couples are treated as the family member of only one of the parents, creating an additional financial burden by not having everyone included in each safety net.

But new legislation to come into effect from 1 January 2009 will redefine couples and families in the national health and health Insurance acts so that “people in same sex relationships will have access to the same financial entitlements as couples who are either married or in de-facto relationships,” says Medicare Australia.

Medicare has also announced that restrictions on reversal of elective sterilisation have been removed from 1 July to allow fertility restoration.

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MORE than 100 gay Australian couples have paid $80,000 to create a baby using rent-a-womb women in the United States, a fertility clinic says.

The controversial scheme, branded as “one-stop baby shopping”, is becoming increasingly popular among professional gay men in Sydney and Melbourne, according to The Fertility Institutes based in Los Angeles.

“We’ve seen more than 125 gay couples from Australia who have gone home with a baby,” said the clinic’s medical director, Dr Jeffrey Steinberg.

“We’re up to six to eight a month now, which is a four-fold increase over two years ago.

“That makes Australia one of our biggest markets, neck-and-neck with Britain.”

The specialist program, the first dedicated to two-father families, allows gay men to pay for surrogate children, a practice which is illegal in Australia.

Couples pick a donor from a list of 400 university students and her eggs are then implanted in a different woman who bears the child.

The process allows sex selection and complete anonymity between the male parents and the donor.

“They are almost all professional, working men who obviously have a bit of money and desperately want a child,” Dr Steinberg said.

“They’ve got busy lives and obviously a lot of restrictions on them down in Australia so it’s something we can sort out for them for between $US75,000 and US$80,000.”

Surrogacy laws in Australia vary from state to state, with altruistic surrogacy, in which the woman who carries the child is not paid, allowed in some jurisdictions.

State and federal governments are moving to consider nationally consistent law on the practice, however, this is unlikely to be extended to gay couples.

Britain, Canada and many Asian nations are similar, while the US has legalised paid surrogacy for all couples.

One Melbourne couple going through the process, Simon and Tony, say the US situation offered “huge hope” for their wish to be parents.

“We were simply unable to do that here unless we wanted to take the turkey baster option, and that wasn’t available to us,” said Simon, who requested anonymity.

The couple, whose surrogate is yet to conceive, know of six other Australian couples who have baby through the scheme.

Rod Goodbun, a spokesman for Action Reform Change Queensland, said it was important gay couples had such options available to them in Australia, ideally under an altruistic arrangement.

But Professor Michael Chapman from Sydney IVF said the nation was not ready for such a step, especially if those involved were paid.

“If a service is provided overseas then so be it but community norms at this point in time would not support it here.”

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More good news from the Gay & Lesbian Rights Lobby! At the beginning of the month we saw the historical passage of the 2008 Same Sex Relationships Bill through NSW Parliament, which provides equal parenting rights to co-mothers of children born through donor insemination and allows both mums to be listed on their child’s birth certificate.

In addition to this, now comes the recognition of same-sex couples and their children in the Federal Government’s newly released National Employment Standards. This will guarantee equal entitlement for same-sex couples to carer’s leave, bereavement leave and parental leave as well as rights in relation to flexible working arrangement for parents with children.

“It is encouraging to see the Rudd Labor Government incorporating the HREOC recommendations into the new National Employment Standards,” said Emily Gray, Lobby Co-Convenor. “This will provide the vast majority of families in our community with greater financial and workplace security, ensuring that lesbians and gay men can take leave to care for their partners, children and other family members.”

If passed by parliament, same-sex partners will be treated as members of each other’s immediate family.

“We welcome the sincerity shown by the Rudd Government in getting on with the job of removing discrimination against same-sex couples and call on them to continue this process in any future legislation,” said Peter Johnson, GLRL Co-Convenor, “It’s time for the Coalition to stop delaying same-sex reforms and work with the government to remove discrimination against lesbians and gay men across Australia.”

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AN amendment to give same sex couples legal access to gestational surrogacy was rejected by the Upper House last night.
Labor MLC Ian Hunter introduced an amendment to the surrogacy Bill that would allow anyone who had been in a domestic relationship – including those in a same sex relationship – access to gestational surrogacy, on the grounds of making the Bill non-discriminatory to gay couples.

The Legislative Council last night passed the Bill to allow gestational surrogacy, which is a medical process usually used as a last resort when a woman cannot carry a child.

The practice was illegal in South Australia, but allowed in the Australian Capital Territory and New South Wales.

Under the procedure, a fertilised egg is implanted in a surrogate, who carries the child.

Upon birth, the surrogate relinquishes the child to the commissioning couple.

The surrogacy Bill was introduced by Liberal MLC John Dawkins in 2006 following reports that couples had travelled interstate to have the treatment, only to return home to face legal issues.

At the time, it was reported that some parents were so desperate to get their child legally recognised, they were committing medical fraud.

Mr Hunter said although it would be unlikely for gay couples to ever use gestational surrogacy, it was not fair to write legislation that discriminated people on their sexuality.

“We thrashed out the domestic partners bill in this place two years ago, giving same sex couples legal wrights, and now to have new legislation that is discriminatory towards them is just deplorable,” he said.

Mr Hunter who chaired a social development committee investigating gestational surrogacy and has previously supported the legislation, said he could not vote for it if his amendment was defeated.

The amendment was easily defeated with all Liberal members, some Labor including Carmel Zollo and Bernard Finnigan and Family First voting it down.

It was supported by Labor MPs Mr Hunter and John Gazolla, Greens MLC Mark Parnell, Democrats Sandra Kanck and Independent Ann Bressington.

[Link: Original Article]