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

Assisted reproductive treatment

The ART Act, which was fully functional by 1 January 2010, allows individual women, and women in heterosexual and lesbian relationships, to access assisted reproductive technology (ART). The ART Act covers the following:

a woman and her partner (if any, of either sex) can access ART to have a child if the woman is “unlikely to become pregnant” without assistance (s 10(2) ART Act); previously, this clause limited ART access to women who for medical reasons could not carry and deliver children, and thereby excluded single women and lesbian couples (see McBain v Victoria [2000] FCA 1009);

prior to receiving ART treatment, a woman and her partner (if any, of either sex) must receive counselling about consenting to the ART procedure (s 13 ART Act);

there is a presumption against access to ART if the woman has a serious criminal record; women with such a record must demonstrate that they should be allowed to access ART (ss 10(2)(b), 14 ART Act);

if the birth mother has a partner at the time of the procedure who consented to the ART procedure, the partner is deemed to be a legal parent of the child, regardless of the partner’s gender; the partner is registered on the child’s birth certificate as a legal parent;

in situations concerning a single woman or a lesbian couple, the man who produced the donor sperm is presumed to not be the father, regardless of whether or not he is known to either woman; this presumption is irrebuttable (s 10C(2) SoC Act);

where donor sperm is used, the donor’s name must be given to Births, Deaths and Marriages Victoria (BDM Victoria); this information may be disclosed to the child, the parents, the child’s descendants, or to the donor, by applying to BDM Victoria (seeContacts”).

Altruistic surrogacy

Altruistic surrogacy involves an unpaid volunteer surrogate (i.e. the birth mother) carrying a child for the intending parents. The surrogate may only be reimbursed for reasonable costs.

In Australia, partial surrogacy, where the surrogate mother provides the egg, is illegal. A donor egg or an egg from the intending mother must be used.

Generally, the sperm will be from one of the intending parents. Altruistic surrogacy is generally used by gay men or by women who are unable to carry a child but who want to have a biological child.

There is an assumption that the surrogate is the child’s legal parent. However, this can rebutted by a substitute parentage order (s 19 SoC Act). Intending parents have six months to apply to the County or Supreme Court for a substitute parentage order. If approved (as is generally the case), the intending parents are named as the legal parents on the child’s birth certificate (ss 20, 21 SoC Act). This can include both males in a same-sex relationship.

Altruistic surrogacy must be approved by the Patient Review Panel (s 39 ART Act), which considers factors including reasons for the surrogacy, the age and circumstances of the surrogate, and whether the people involved have received counselling. For more information about the Patient Review Panel, contact the Victorian Government Department of Health and Human Services (seeContacts”).

Commercial surrogacy

Commercial surrogacy is where the intending parents pay a surrogate to carry a child, and payment results in a material benefit or advantage to the surrogate beyond the reimbursement of reasonable costs. Currently, it is illegal for intending parents to engage in commercial surrogacy in Australia with a surrogate (s 44 ART Act).

It is not illegal in Victoria for individuals and couples to travel overseas for the purpose of commercial surrogacy; however, it is illegal for residents of New South Wales, the Australian Capital Territory and Queensland to do so.

Australian legislation does not automatically recognise intending parents as the legal parents of the child, even if the surrogate has relinquished all rights to the child. Further, unlike in altruistic surrogacy agreements, intending parents in a commercial surrogacy arrangement are unable to apply for a substitute parentage order as these orders are only granted for children conceived in Victoria (s 20 SoC Act). Overseas birth certificates listing the intending parents as the legal parents are not recognised in Australia.

It is possible for the donor father to apply for a declaration of parentage to become the child’s legal father, as was the case in Green, Wilson & Bishop [2014] FamCA 1031. However, it is unclear whether this continues to be the current position of the law. In the more recent case of Bernieres & Dhopal [2015] FamCA 736, Justice Berman refused to award a parentage order to the biological father of a child conceived through an international commercial surrogacy agreement. At the time of writing (30 June 2017), the law in this area is undecided and will depend on the outcome of the Bernieres appeal, which is expected to be released in late 2017. Depending on the outcome, intending parents of international surrogacy agreements will either be able to apply for a parentage order, or an order for parental responsibility.

A parentage order establishes the intending parents as the child’s legal parents. Consequently, the intending parents are granted all the rights and privileges of a regular parent.

A parental responsibility order is one step below a parentage order. It confers on the intending parents the right to make parental decisions on behalf of the child. However, the intending parents are not recognised as the child’s legal parents. Consequently, once the child turns 18, there is no legal connection between the intending parents and the child. The child is not legally recognised as a “child” of the intending parents in their wills, and special provisions must be made to explicitly leave the parents’ estate to the child if the intending parents wish to do so.

If the donor parent’s parentage is established, their partner will be able to adopt the child and also become a legal parent.

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) (“FL Act”), 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 FL Act.

The mother’s argument – that the sperm donor was not a parent by virtue of section 60H(1)(d) of the FL Act, 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 FL Act (because the mother was single) – then the provision in the SoC Act that conclusively presumes the sperm donor not to be a parent does not apply because it is inconsistent with the FL Act. 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 FL Act 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 SoC Act 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.