Deemed parenting for same-sex couples: fact sheet

This fact sheet was issued by the TGLRG in August 2009.

The issue

Under the Status of Children Act 1974, the same-sex partner of a woman who has a child through artificial reproductive technology such as IVF cannot be presumed to be the other legal parent of the child.

This presumption does occur when a partner is of the opposite sex.

History of the issue

In 2003 the Bacon Labor Government moved to eliminate legal discrimination against same-sex partners with the Relationships Act 2003.

This Act amended the Status of Children Act to allow non-biological mothers to have the same parenting rights and responsibilities as non-biological fathers when children are conceived through ART.

That part of the Relationships Act was supported by a majority of Opposition MPs. But was defeated by one vote in the Legislative Council.

The Community Development Committee conducted a subsequent inquiry into deemed parenting. It recommended reform.

Case for reform

Recognising and protecting existing families

Tasmania's fertility clinics allow partners in same-sex relationships access to their services.

As a result, some Tasmanian children are born through fertility treatment to same-sex couples.

At the moment, only the biological mother of these children can be deemed to be their legal parent.

This means these children suffer the legal, emotional and financial insecurity associated with having only one legal parent rather than two.

It also means the co-mother has no legal protection or recognition of her parenting role.

For example, in the absence of a legally-defined parenting role, a non-biological co-mother may not be recognised by hospital authorities to make emergency medical decisions for her child, or by school authorities to attend parent teacher nights and collect her child from school. If a biological parent dies, her child is legally parentless, and may be taken from his or her other mother by a biological relative.

Tasmania is lagging behind

The Commonwealth and all other states and territories except Queensland and South Australia now legally recognise co-mothers (the Queensland Government has announced that its laws will change this year).

Reform at a federal level has created untenable inconsistencies, for example co-mothers are recognised for responsibilities such as child support but not for rights associated with next-of-kin in state law.

Reform in other states means co-mothers who are recognised elsewhere have no recognition when moving to Tasmania.

Historical precedents

Up until the 1970s children were legally disadvantaged if their parents were not married. Discriminating against children because of their parents' gender is just as inappropriate. Put another way, we must not punish children for what some people see as the sins of their parents.

Since 2003 same-sex couples have been able to apply for known-child adoption. Same-sex couples are also permitted to be foster parents. If Tasmanian law and policy recognises same-sex parenting in these circumstances, it should also recognise deemed parenting for same-sex partners.

Case against reform (with responses)

Family Court parenting orders are sufficient

Parenting orders can provide a temporary solution. But they are limited in time and in scope and do not provide families and children with full legal security. For example, they cannot guarantee inheritance.

Known-child child adoption is sufficient

In Tasmania we allow people in same-sex relationships to apply to adopt their partner’s biological children. However, this is a long and expensive process, and the Supreme Court is increasingly unwilling to grant any known-child adoption applications.

All children need a mother and a father

This is an irrelevant argument. The choice we face is not whether children should have a mother and a father or two mothers, but whether they have one legal parent or two.

We also disagree with this statement because scientific evidence shows that children raised by two mothers are not disadvantaged in any way. Love makes a family, not parental gender.

Allowing the names of two mothers on a birth certificate “denies reality” and "falsifies official documents"

This is wrong for the same reason it is wrong to claim that putting the name of a non-biological father in a birth certificate “denies reality”.

Recognising the parenting role of a non-biological parent by including their name on their child’s birth certificate recognizes the truth of who cares for and raises that child.

Not including the name of a non-biological parent on a birth certificate perpetuates the legal lie that the child only has one parent when in fact they have two.