When the Marriage Act 1961 was amended last year to recognise marriages, irrespective of the gender of the parties, laws about who was a parent may not have kept up. Each of the States and Territories will now need to look at their laws to ensure that who is recognised as the spouse of a person who gave birth is recognised as a parent when there has been a child born through the help of assisted reproductive treatment.
Commonwealth
law provides the saving grace, but it would be very helpful if State and
Territory laws were consistent. The
example that I give is under the Status
of Children Act 1978 (Qld). This Act
covers parentage presumptions, i.e. who is a parent of a child. Just because someone is genetically a parent
does not make them the parent as a matter of law. Division 2 is called: Parentage presumptions of children conceived by fertilisation
procedures. Subdivision 1 concerns
interpretation. Subdivision 2 concerns
fertilisation procedures of married women with their husbands consent. Subdivision 2A is called Fertilisation procedures – women with female de facto partners’ consent. Subdivision 3 is for everyone else: Fertilisation procedures – other married
women and unmarried women. For a
lesbian couple who have married, this division does not apply to them. Section 20 makes plain:
“This
subdivision applies if –
(a) a married woman undergoes a fertilisation procedure
other than with her husband’s consent; or
(b) a woman who is not married and does not have a de
facto partner or civil partner undergoes a fertilisation procedure; or
(c) a woman who has a de facto partner undergoes a
fertilisation procedure other than with her partner’s consent; or
(d) a woman who has a civil partner undergoes a
fertilisation procedure other than with her partner’s consent.”
So
it seems as though married lesbian couples are not covered under parentage
presumptions. Therefore you might think
that neither woman is recognised as a parent. Instead, the woman who gave birth will
generally be recognised under our law as the mother. This is because the focus of the law since
700CE, in the time of the Emperor Justinian, is that the mother is always
certain, i.e. she is the one who gave birth.
The
status of her wife is not provided for under the Queensland legislation.Under Queensland law, therefore, when a child is born through assisted reproductive treatment to a married lesbian couple, only the birth mother is recognised as a parent.
Family Law Act to the rescue
Section
60H of the Family Law Act provides that both women are the
parents. Under section 109 of the Commonwealth Constitution where the
State and Federal laws are inconsistent, the Federal law prevails to the extent
of the inconsistency. Section 60H(1) provides:
“(1) If:
(b) either:
(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;
(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.”
It
is possible that a clerk at the Registrar of Births, Deaths and Marriages may,
in relying on the State legislation, refuse to recognise the non-birth mother as
a parent on the birth certificate. To
have done so would be in breach of the Family
Law Act, inconsistent Federal legislation.
Hopefully that day will not come to pass. Let’s wait and see.
The sooner that State and Territory legislation is checked, and amended to be consistent with the equal marriage changes, the better.
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