Sunday, 8 July 2012

Qld: perfect today, backwards tomorrow

The proposal in Queensland to remove recognition of lesbian co-mothers will take Queensland backwards, so that it is out of kilter with the laws of every other State, Territory and of the Commonwealth.An effect of the laws is that women who could expect to be recognised as a parent (or for their partner as parent) in Queensland will not be recognised, although that recognition currently applies nationwide.

There are no moves by any other coalition government that I am aware of, in WA, NSW or Victoria, to enact similar proposals.


 The current law

Currently in all States and Territories, including Queensland, and under the federally under the Family Law Act, when a lesbian couple are in a  relationship, and one of them gives birth to a child conceived through artifical insemination of some kind (such as at home from a known donor, or via IVF), then the sperm donor is not recognised as a parent, but the partner of the mother is recognised as the parent, including on the birth certificate.

The LNP's proposal

It is hard to come to grips with the LNP's proposal, if only because:

  • so far we have not had the benefit of any Bill;
  • nor have we had even a press release;
  • all we have had is a statement to the House by the Attorney-General during the civil union laws debate, indicating that it was government policy to change the parentage presumptions under the Status of Children Act, then referring to women who had been helped by Lawrence Springborg to obtain parentage orders; and
  • Neither the Attorney-General nor my local member Tarnya Smith has responded to my request for a meeting so that this issue could be clarified.
 And let's be clear- it is highly unlikely that the Newman government will now say that sperm donors are to be "parents"; all that will happen as can be discerned is to remove the recognition of lesbian partners as "parents". If the Newman government does propose that sperm donors are "parents", then is it prepared to wear the backlash that these men may then be liable to pay child support (although that is dubious given provisions of the Family Law Act) or more likely that donor rates will drop even further because of a fear by potential donors that donors may be parents, and therefore liable to pay child support?

As I set out below, this proposal will mean that women are no longer recognised as "parents" for inheritance purposes, or named on the birth certificates, but will still be liable to pay child support if the parties split up!

The current law in each State, Territory and Federally

I've highlighted the relevant portions.


Queensland

Status of Children Act 1978


Section19C: artifical insemination:
(1) A reference in this section to a fertilisation procedure is a reference to the procedure of artificial insemination.
(2) If semen is used in a fertilisation procedure of the woman, the man who produced the semen has no rights or liabilities relating to a child born as a result of a pregnancy for which the semen has been used.
(3) The woman's de facto partner is presumed, for all purposes, to be a parent of any child born as a result of the pregnancy.

Section19D: donor sperm


(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—
(a) an embryo derived from an ovum produced by her and fertilised outside her body by semen produced by a man who is not her husband; or
(b) for the purpose of fertilising an ovum inside her body, an ovum produced by the woman together with semen produced by a man other than her husband.
(2) If the woman has undergone a fertilisation procedure as a result of which she has become pregnant, the man who produced the semen has no rights or liabilities relating to any child born as a result of a pregnancy for which the semen has been used.
(3) The woman's de facto partner is presumed, for all purposes, to be a parent of any child born as a result of the pregnancy.
 Section19E: donor embryo or egg


(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—
(a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or
(b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by a man other than the first-mentioned woman's husband.
(2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant—
(a) the woman is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b) the other woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.
(3) The woman's de facto partner is presumed, for all purposes, to be a parent of the child.
(4) Also, the man who produced the semen has no rights or liabilities relating to any child born as a result of a pregnancy for which the semen has been used.
 NSW

Status of Children Act 1996

Section14 (1A)-(3)

(1A) When a woman who is the de facto partner of 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.
Note: “De facto partner” is defined in section 21C of the Interpretation Act 1987 .
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).

ACT

Parentage Act 2004

Section 11(3)-(5)

  (3)     If the ovum used in the procedure was produced by another woman, that other woman is conclusively presumed not to be the mother of any child born as a result of the pregnancy.
    (4)     If the woman undergoes the procedure with the consent of her domestic partner at the time of the procedure, the domestic partner is conclusively presumed to be a parent of any child born as a result of the pregnancy.
    (5)     If semen used in the procedure was produced by a man other than the woman's domestic partner at the time of the procedure, the man who produced the semen is conclusively presumed not to be the father of any child born as a result of the pregnancy.

 Victoria

Status of Children Act 1974

Section 13(1)

(1) If a woman undergoes a procedure as a result of which she becomes
pregnant-

   (a)  the woman is presumed, for all purposes, to be the mother of any child
        born as a result of the pregnancy; and



   (b)  the woman's female partner is presumed, for all purposes, to be a
        legal parent of any child born as a result of the pregnancy if she-

   (i)  was the woman's female partner when the woman underwent the procedure
        as a result of which she became pregnant; and

   (ii) consented to the procedure as a result of which the woman became
        pregnant; and

   (c)  the man who produced the semen used in the procedure is presumed, for
        all purposes, not to be the father of any child born as a result of
        the pregnancy, whether or not the man is known to the woman or her
        female partner.

Section 14(1)


(1) If a woman undergoes a procedure using a donor ovum as a result of which
she becomes pregnant-

   (a)  the woman is presumed, for all purposes, to have become pregnant as a
        result of fertilisation of an ovum produced by her and to be the
        mother of any child born as a result of the pregnancy; and

   (b)  the woman's female partner is presumed, for all purposes, to be a
        legal parent of any child born as a result of the pregnancy if she-

   (i)  was the woman's female partner when the woman underwent the procedure
        as a result of which she became pregnant; and

   (ii) consented to the procedure as a result of which the woman became
        pregnant; and

   (c)  the man who produced the semen used in the procedure is presumed, for
        all purposes, not to be the father of any child born as a result of
        the pregnancy, whether or not the man is known to the woman or her
        female partner; and

   (d)  the woman who produced the ovum used in the procedure is presumed, for
        all purposes, not to be the mother of any child born as a result of
        the pregnancy.

Tasmania

Status of Children Act 1974

Section 10C(1A)-(4)

 (1A) Where a woman is in a significant relationship, within the meaning of the Relationships Act 2003, with another woman and, with the consent of that other woman, undergoes a fertilization procedure as a result of which she becomes pregnant, the consenting woman is, for the purposes of the law of the State, to be treated as if she were the parent of any child born as a result of that pregnancy.
      (1B) Subsection (1A) is taken to have commenced on the day on which the Relationships Act 2003 commenced.
      (2) Where a woman undergoes a fertilization procedure as a result of which she becomes pregnant, any man, not being her husband or her partner in a significant relationship, within the meaning of the Relationships Act 2003, who produced semen which was used in the fertilization procedure, shall, for the purposes of the law of the State, be treated as if he were not the father of any child born as a result of the pregnancy.
      (3) Where a woman who is married or in a significant relationship, within the meaning of the Relationships Act 2003, undergoes a fertilization procedure as a result of which she becomes pregnant and the ovum used for the purposes of the fertilization procedure was taken from another woman, the first-mentioned woman shall, for the purposes of the law of the State, be treated as if she were the mother of any child born as a result of that pregnancy.
      (4) Where a woman undergoes a fertilization procedure as a result of which she becomes pregnant, and another woman produced the ovum used for the purposes of the fertilization procedure, that other woman shall, for the purposes of the law of the State, be treated as if she were not the mother of any child born as a result of that pregnancy.
South Australia

Family Relationships Act 1975

Section 10C (1)-(4)

(1)         A woman who gives birth to a child is, for the purposes of the law of the State, the mother of the child (whether the child was conceived by the fertilisation of an ovum taken from that woman or another woman).
        (2)         If—
            (a)         a woman becomes pregnant in consequence of a fertilisation procedure; and
            (b)         the ovum used for the purposes of the procedure was taken from another woman,
then, for the purposes of the law of the State, the woman from whom the ovum was taken will be taken not to be the mother of any child born as a result of the pregnancy.
        (3)         If a woman who is legally married or in a qualifying relationship undergoes, with the consent of her husband or domestic partner (as the case requires), a fertilisation procedure in consequence of which she becomes pregnant, then, for the purposes of the law of the State, the husband or domestic partner
            (a)         will be conclusively presumed to have caused the pregnancy; and
            (b)         will be taken to be—
                  (i)         in the case of a husband or male domestic partner—the father; or
                  (ii)         in any other case—a co-parent,
of any child born as a result of the pregnancy.
        (4)         If—
            (a)         a woman becomes pregnant in consequence of a fertilisation procedure; and
            (b)         a man (not being the woman's husband or, if she is in a qualifying relationship, her domestic partner) produced sperm used for the purposes of the procedure,
then, for the purposes of the law of the State, the man—
            (c)         will be conclusively presumed not to have caused the pregnancy; and
            (d)         will be taken not to be the father of any child born as a result of the pregnancy. 

Western Australia

Artificial Conception Act 1985

Section 6A

(1)         Where a woman who is in a de facto relationship with another woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure in consequence of which she becomes pregnant, then for the purposes of the law of the State, the de facto partner of the pregnant woman —
            (a)         shall be conclusively presumed to be a parent of the unborn child; and
            (b)         is a parent of any child born as a result of the pregnancy.
        (2)         In every case in which it is necessary to determine for the purposes of this section whether a de facto partner consented to her de facto partner undergoing an artificial fertilisation procedure, that consent shall be presumed, but the presumption is rebuttable.

Northern Territory

Status of Children Act 

Section 5DA

  (1)     Where a woman who is the de facto partner of another woman undergoes, with the consent of the other woman, a fertilization procedure as a result of which she becomes pregnant, the other woman is, for all purposes of the law of the Northern Territory, to be presumed to be a parent of:
        (a)     the unborn child; and
        (b)     a child born as a result of the pregnancy.

Commonwealth

The Family Law Act brings the State and Territory laws into a seamless whole, a system that the Queensland government has decided must end at the Tweed. The Family Law Act does this by:

The effect of the latter is that even if the Newman government were to abolish the presumption in Queensland concerning lesbian co-mothers, the co-mother although she would not be recognised for inheritance purposes in Queensland, and would not be able to be named on the birth certificate in Queensland, would still be a "parent" under the Family Law Act, and therefore liable to pay child support!

In other words, the Queensland proposal would remove the happy recognition of "parenthood" at the time it matters, when the child is born, and on the birth certificate, but not at a sad moment- namely relationship breakdown, when a woman who has been denied under State law to be called a "parent" would nevertheless have to pay child support because she would be considered to be "parent" under the Family Law Act.

Family Law Act 1975

Section 60H

             (1)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
                     (b)  either:
                              (i)  the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
                             (ii)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
                     (c)  the child is the child of the woman and of the other intended parent; and
                     (d)  if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
             (2)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
                     (b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
             (3)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
                     (b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
             (5)  For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
             (6)  In this section:
"this Act" includes:
                     (a)  the standard Rules of Court; and
                     (b)  the related Federal Magistrates Rules.

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