Sunday, 25 May 2008

NSW Bill to amend numerous Acts

NSW Attorney-General John Hatzistergos has now put the bill before the Parliament to allow lesbian couples to both be recognised as parents on the their child's birth certificates.

The Miscellaneous Acts (Same Sex relationships)Bill 2008 also amends numerous other bills, to remove discrimination in NSW law so that there is a clear defintion of "spouse" which includes same sex couples and de facto couples.

Lesbian parenting amendments

In an Australian first, the Bill, if passed, will contain the the following presumption:

When a woman who is in a de facto relationship with another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.

The key term, of course, is "fertilisation procedure". Having sex with a man will still result in his being presumed to be the father.

The amendments are retrospective to when the child was born, although there are exceptions,including for wills executed before commencement.

Changes to other Acts

All up 55 pieces of legislation or regulation are altered so that there is a consistent definition of "spouse". This includes the following legislation:
-Charles Sturt University By-Law
-Co-operative Housing and Starr-Bowkett Societies Act
-Greyhound and Harness Racing Administration Act
-Industrial Relations Act
-Irrigation Areas (Reduction of Rents) Act
-Sydney Cricket and Sports Ground Act
-Water Industry Competition Act


  1. Stephen

    A question on your take of the NSW proposed amendments. Does "fertilisation procedure" include DIY (ie self insemination at home)? If it does, then those men entering co-parenting arrangements will automatically be removed from the "parent" role by being removed / replaced on the birth certificate by the lesbian's partner. Of course, I have a feeling that they were not previously considered to be the parent anyway, as DIY meant he was a sperm donor and therefore not legally a parent in any case.

    Am I reading this right?

    Rodney Cruise

  2. Rodney

    Sorry to wax jargonesque, but here goes...


    "fertilisation procedure" is not defined in the amendments but in section 3 of the Status of Children Act. It includes "artificial insemination" which is not defined in that Act. I take it that artificial insemination is any form of insemination of a woman that is not the old fashioned way, so giving a sperm donation and using ye goode olde turkey baster would be artificial insemination.

    Now for the trickier bit. Because of this Bill, guys who donate sperm would NOT be parents under the NSW Status of Children Act.

    They may possibly remain parents for child support purposes and family law purposes. In re Patrick (1992) Justice Guest considered the rather defective definition of "parent" under the Family Law Act and said that in considering that Act, judges should look to presumptions in State legislation, in this case the NSW Status of Children Act.

    In Re Mark (1993) Justice Brown in the Family Court looked at the definition of "parent" under the Family Law Act and said that in her view the Family Court should NOT look at State presumptions, but look at the reality of a "parent" who "begats" a child. A sperm donor causes the child to be born, and is therefore considered a father.

    Unfortunately, there is no definitive Full Family Court decision to aid us and this will remain a grey area.

    If a guy is not a parent, then he may not have to pay child support, may have difficulty seeing the child, or be able to persuade the court that eh should have some involvement.

    If he is a parent, then he would ordinarily have to pay child support, and will be presumed to be equally responsible for long term decisions AND the court can consider whether 50/50 time should be split between the parents.

    So it does make a difference.

    Finally, Queensland is proposing retrospective changes (back to 1988!) so that sperm donors are not presumed to be parents. I have tried but failed to get clarification from Attorney-General Kerry Shine's office as to whether this covers known sperm donors not going through an IVF clinic.