Victorian legislation

 

Domestic relationships

The SLAR Act (and the subsequent SLFAR Act) changed a range of state Acts to introduce the legal concept of “domestic relationship”.

The narrow or principal definition of domestic relationship is “a person to whom the person is not married but with whom the person is living as a couple in a genuine domestic basis irrespective of gender”.

The objects of the SLAR Act and SLFAR Act are:

to recognise the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner; and

to prevent discrimination under legislation specified in the schedules by ensuring that all couples irrespective of gender have the same rights and obligations while at the same time recognising the importance of a commitment to a long-term relationship and the security of children.

Approximately 55 Acts were amended, mainly concerning property, inheritance, stamp duty, compensation schemes, superannuation, health, guardianship, employment, criminal and consumer laws. All amended statutes took effect by July 2002. The amendments introduced the legal concept of domestic relationship, defined either narrowly or broadly depending on the particular obligation or benefit listed in the SLAR Act (schs 1–7).

The narrow or principal definition of domestic relationship is “a person to whom the person is not married but with whom the person is living as a couple in a genuine domestic basis irrespective of gender”.

Discrimination

Discrimination on the grounds of “gender identity”, “lawful sexual activity” and “marital status” is prohibited under Victorian law. As a result of the SLAR Act, “marital status” now includes being a “domestic partner”, that is irrespective of gender for the purposes of the Equal Opportunity Act 2010 (Vic) (“EO Act”).

Legislation that excludes or is plainly limited to, certain classes of people or relationships is not a kind of discrimination that can be challenged under the EO Act. On the other hand, if, for example, a childcare centre refused to accept the child of an unmarried individual or of people in a domestic relationship, the EO Act may be of assistance.

Also, complaints about discriminatory state legislation can be successful where it can be shown that there has been a contravention of a Commonwealth anti-discrimination law (see Jenni Millbank (1997) “Every Sperm is Sacred?”, Alternative Law Journal, 22, 3, pp. 126–9; www.altlj.org).

Assisted reproductive treatment and surrogacy

The ARTA was passed on 4 December 2008 and was fully operational by 1 January 2010. It corrects major discriminations against same-sex parents and provides legal security for children of same-sex parents, including the following:

a woman and her partner, if any, and irrespective of gender, can access assisted reproductive technology (ART) procedures if the woman is “unlikely to become pregnant” without that assistance;

the SoCA is amended to provide that the female partner of the birth mother is presumed, for all purposes, to be the legal parent of any child born as a result of the pregnancy if she was the partner at the time of the procedure and she consented to the procedure;

the man who produced the semen is presumed for all purposes not to be the father, whether or not he is known to either woman;

these presumptions are irrebuttable (i.e. not open to question) and prevail over any conflict, except in relation to surrogacy arrangements;

the ARTA provides for the registration of the non-birth mother as the parent on the child’s birth certificate;

the ART provider must provide the donor’s name to the registrar of Births, Deaths and Marriages, which can then be disclosed to the child, the parents, the child’s descendants or the donor by application to the registrar;

the ARTA opened up “altruistic” (unpaid) gestational surrogacy in Victoria as an option for gay men to become parents, and allowed for recognition of parents (including both partners in a gay male couple) of children conceived through surrogacy agreements. Gestational surrogacy requires the use of a donated egg; using the surrogate’s own egg is not allowed. ART providers may carry out procedures under surrogacy arrangements if approved by the Patient Review Panel established by the ARTA, which must be satisfied that all parties have received counselling, legal advice and have considered the possibility of a change in intended arrangements (e.g. the commissioning parents decide not to continue with the arrangement or the surrogate does not want to relinquish the child);

commercial surrogacy is illegal in Australia. However, in Victoria, it is not illegal to travel overseas for the purpose of commercial surrogacy. Although, this is illegal for residents of the ACT, NSW and Queensland;

the commissioning parents of a child born under a surrogacy arrangement can apply for a substitute parenting order, which irrebuttably presumes the parents will be named as the child’s legal parents where both parents consented to the arrangements.

Application forms and information on the changes can be obtained from Births, Deaths and Marriages Victoria at www.bdm.vic.gov.au. For more information, visit the Rainbow Families Council at www.rainbowfamilies.org.au.

Case study: the status of sperm donors

Groth & Banks [2013] FamCA 430 involved a single woman not in a relationship with the man who provided a sperm donation for her to undergo an artificial conception procedure at an IVF clinic.

The sperm donor sought parenting orders that he spend time with the child, and a declaration that he the child’s parent. The court declared him to be a parent of the child, ordered shared parental responsibility and substantial periods of overnight contact.

The court found that under various provisions of the Family Law Act 1975 (Cth) (“FLA”), reference was made to “both parents”, implying that it was impossible to have more than two legal parents.

The birth mother was presumed to be a parent by virtue of section 60H of the FLA.

The mother’s argument – that the sperm donor was not a parent by virtue of section 60H(1)(d) of the FLA, which provides conclusively that the child is not the child of the donor of genetic material – was rejected by the court. The court held that the displacement of parentage of the donor in section 60H(1)(d) does not apply because none of the section 60H(1) categories applied in this case. The determinative factor being that the mother was not married or in a de facto relationship.

The court accepted that the sperm donor in this case provided the sperm donation with the express intention of parenting the child; and on the basis that section 60H did not preclude him from parentage, the court declared him to be a parent of the child. The court held that in these circumstances – that is, where a sperm donor is considered to be a parent under the FLA (because the mother was single) – then the provision in the SoCA that conclusively presumes the sperm donor not to be a parent does not apply because it is inconsistent with the FLA. Section 109 of the Constitution provides that where there is an inconsistency between a state law and a Commonwealth law, the latter prevails to the extent of the inconsistency.

It remains clear that if the birth mother had been in a married or de facto relationship at the time of conception, her married or de facto partner (regardless of gender) would have a presumption of parentage under section 60H(1)(c) of the FLA activating the displacement of parentage on the part of the sperm donor in section 60H(1)(d).

For lesbian couples using a known donor – provided they were in a domestic relationship at the time of conception and the non-birth mother consented to the conception procedure – they will both be presumed to be a parent of the child and a declaration of parentage will not be available to the sperm donor. There will be no inconsistency between Commonwealth and state laws, and accordingly the SoCA provides that a man who produced the semen is presumed for all purposes not to be the father, whether or not he is known to either woman.