Victorian legislation

28 Jan

Written By For Good Digital

The goal of the Relationships Act 2008 (Vic) (‘Relationships Act’) is to align the rights of couples in domestic relationships (i.e. de facto couples – whether or not same-sex) with those of heterosexual and married couples.
Section 35(1) of the Relationships Act provides a broad definition of ‘domestic relationship’: A registered relationship or the relationship between two adult persons who are not married to each other but are a couple, where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person for a fee or on behalf of another person or organisation (e.g. charity).
People in same-sex relationships or heterosexual domestic relationships have the right to register their relationship with Births, Deaths and Marriages Victoria to provide legal recognition of the relationship and easier access to certain entitlements without first having to prove the relationship exists.
Section 4AA of the Family Law Act 1975 (Cth) (‘FL Act’) defines the term ‘de facto relationship’ and lists a number of factors that a court may consider when determining if a de facto relationship exists in the circumstances.
Discrimination on the grounds of ‘gender identity’, ‘lawful sexual activity’ and ‘marital status’ is prohibited under Victorian law.
As a result of the Statute Law Amendment (Relationships) Act 2001 (Vic) (‘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.
The EO Act contains some religious exemptions to discrimination; for example, in sections 82 and 83.
In determining who should be offered employment and the conditions of that employment, section 14 of the Sex Discrimination Act 1984 (Cth) makes it unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status.

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 is 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 be rebutted by a substitute parentage order (Status of Children Act 1974 (Vic) (‘SoC Act’) s 19). Intending parents have six months to apply to the County Court 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 (SoC Act ss 20, 21). This can include both males in a same-sex relationship.
As of November 2014, all children born in Victoria through an altruistic surrogacy agreement in another state have their parentage legally recognised.
Altruistic surrogacy must be approved by the Patient Review Panel (ART Act s 39). This panel considers factors including the reasons for the surrogacy, the surrogate’s age and circumstances, and whether the people involved have received counselling and legal advice. For more information about the Patient Review Panel, see www.health.vic.gov.au/patient-care/assisted-reproduction.
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 (ART Act s 44).
In Victoria, it is not illegal for individuals and couples to travel overseas for the purpose of commercial surrogacy; however, this is illegal for residents of New South Wales, the Australian Capital Territory and Queensland.
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 (SoC Act s 20). Overseas birth certificates listing the intending parents as the legal parents are not recognised in Australia.
Section 60HB of the FL Act leaves it open to each state and territory to regulate the status of children born through surrogacy.
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 a donor parent’s parentage is established, their partner will be able to adopt the child and also become a legal parent.
In the case of Masson v Parsons [2019] HCA 21, at the time of her child’s conception, Ms Parsons was in a same-sex relationship that was not a de facto relationship. Mr Masson was the child’s biological father and registered on the child’s birth certificate as the father. Mr Masson played an active role in the child’s life.
At first instance, Mr Masson was considered to be a legal parent of the child; the trial judge made orders providing for the child to spend extensive time with Mr Masson.
Then Ms Parsons sought to relocate to New Zealand with the child, but as a consequence of the orders made by the trial judge, Ms Parsons was not permitted to relocate.
On appeal to the High Court, the decision of the Full Court of the Family Court was overturned. It was held that the effect of section 60H of the FL Act is to expand rather than to restrict the range of persons who may qualify as a parent of a child born via an artificial conception procedure.
Even though section 60H does not specifically mandate that sperm donors be recognised as parents, it does not exclude them from being recognised as such where they fall within the ordinary meaning of ‘parent’.
In this case, Mr Masson was found to be a parent within the ordinary meaning of the term.
It remains clear that if a birth mother was in a married or de facto relationship at the time of conception, her married or de facto partner (regardless of gender) has 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 are both presumed to be a parent of the child and a declaration of parentage is not 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.
It can also be derived from the case law that although there is scope for sperm donors to be considered parents, the circumstances in which this will occur are rare.