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The law specifically states who is considered to be the mother and father of the child, when the child is conceived through artificial conception with donated genetic material.
Changes were made to the Family Law Act 1975 some time ago that recognise the role of both partners as parents, in a same sex de facto relationship.
When a child is born to a female same sex couple, the law presumes the child’s mother to be the partner who carried the pregnancy and gave birth to the child.
The child is a child of both de facto partners, provided:
Who provided the genetic material, or whether the genetic material is provided by several different people, is not relevant.
This means it is not relevant whether both donor sperm and donor ova were used, such that the child has no biological relationship to either parent.
Both same sex partners can be listed as “parents” on the child’s Birth Certificate.
Note though that only the partner who carried the pregnancy and gave birth to the child can be listed as the child’s mother.
In some Australian States, female same sex couples can have a child through a surrogacy arrangement.
In those circumstances both partners would also be recognised as the child’s parents under both State and Federal Law and both parents could be listed on the child’s Birth Certificate.
Even though the definition of “parent” includes heterosexual de facto couples and female same sex couples, it does not cover male same sex couples.
This is because the definition of parent refers to a child born to a woman.
Accordingly, the definition of parent in the Federal Family Law Act 1975 and various State Acts do not assist male same sex couples who wish to be recognised as parents of a child.
Many Australian States do not allow adoption by same sex de facto couples.
Different laws apply in each State to surrogacy arrangements.
Generally speaking, if a male same sex couple has a child through a lawful surrogacy arrangement, the partners would be recognised as the child’s parents under State and Federal law and both parents could be listed on the child’s Birth Certificate.
Michelle Beatty, Senior Lawyer
Other Questions answered in the Same Sex & De Facto Relationships Section
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