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How will law reforms announced last week by the NSW Attorney-General impact lesbian mothers? Katrina Fox reports.
Deb Gavan is unable to enrol her son Riley in school. If he gets sick and needs to go to hospital, she’s not allowed to fill out the paperwork. “The hospital doesn’t accept me as his mother,” she tells SX.
These are just some of the difficulties she and other lesbian non-birth parents face on a regular basis.
Gavan has been with her partner Louise for 14 years. Four and a half years ago they decided to have a child together through donor insemination, with Louise giving birth. Despite trying to list Gavan on the birth certificate, the couple were unsuccessful. “The hospital was adamant that we had to be sensible and put ‘father unknown’,” she laments.
Now things are set to change, with last week’s announcement by the NSW Attorney-General that new laws would be introduced to recognise co-mothers as legal parents of children born through donor insemination. Amendments to the Status of Children Act will retrospectively grant parenting presumptions to lesbian couples who conceived through IVF.
In addition around 50 pieces of legislation are to be amended to ensure de facto couples, including same-sex couples, are treated the same as married couples, and changes will be made to the NSW Anti-Discrimination Act to protect lesbian couples from discrimination that may arise from them disclosing their same-sex relationship. One of the key reforms is allowing both mothers to be listed on the birth certificate.
“This means a huge amount to people – they sense themselves as a parent, they have the right to make medical decisions for their child and they are recognised as a parent in schools without the need to get orders from the Family Court,” says Jenni Millbank, Professor of Law at the University of Technology, Sydney and author of the 2003 Gay & Lesbian Rights Lobby of NSW report And then the Brides Changed Nappies.
The Nappies report proposed a host of law reforms to recognise same-sex parents and afford them the same rights as their heterosexual counterparts. It followed investigations by the Law Reform Commission that began in 1999 into how relationship law disadvantaged same-sex couples. The Commission’s report was completed in 2006 but was only released last week.
Millbank says it is “super exciting” that the Commission “adopted the entire framework of all the recommendations from the Nappies report”. But while she believes the Attorney-General’s proposed reforms are a step forward, they do not go far enough, most notably the omission of adoption and surrogacy.
“When it comes to parenting [the Attorney-General] said ‘yes’ to presumptive parenting for lesbian parents from birth and that’s fantastic because it’ll cover probably 80 per cent of same-sex families living in that model,” Millbank says. “But he said he won’t do any form of adoption.
There are different issues with adoption – one is step-parent adoption where you’ve had a partner come into the relationship later. So presumptive parenting works if you have a child through any form of assisted conception, at home or in a clinic, and your partner agrees to that process so it’s a joint enterprise. But suppose you’re a single mum, you go through it alone, then meet a girl six months later and she becomes the other parent: 10 years go by and she can’t formally get legal recognition of that relationship.”
And while the proposed reforms cover the child’s inheritance rights, accident and compensation, and guardianship, being state-based they do not extend to issues around social security, migration, Medicare, social security or family law, which all fall under federal jurisdiction.
This is particularly important if the couple breaks up, or if the birth parent dies. “That’s ... really difficult because they’re a parent under state law but it’s family law that determines parental responsibility and that doesn’t automatically reflect state law,” Millbank says.
For Gavan, this is her biggest fear. “That just terrifies me – the thought that Lou could die tomorrow and I’m not considered Riley’s next of kin and her family could walk in and take him,” she explains. “I’d be nervous telling them that something had happened to her to that extent because it’s a very precarious situation for us to be in.”
Also unclear is whether the non-birth parent would be recognised as such if the couple moved interstate. Even though WA, NT and the ACT have already enacted these kinds of reforms recognising same-sex parents, with Victoria set to do so this year, there is no automatic recognition of another state’s laws, according to Millbank.
“They’d be presumed to be the parent until someone can prove otherwise,” she says. “There’s considerable ambiguity as to if the laws of other states would accord status granted by another state; it’s messy.”
Then there’s the issue of language. While it’s encouraging to see the government attempt to recognise same-sex parents, not all lesbian parents are happy with terms such as ‘co-mother’ being used. “I don’t see myself as a co-mother,” Gavan asserts.
“The three of us clearly think [Riley] has two mothers. He understands the biological difference, but to him there’s absolutely no social difference. Recently the hairdresser asked him about his father, and he roared out laughing, ‘I don’t have a daddy, I have two mums!’ When he meets other children he says, ‘How many mums or dads do you have?’ He has a much more fluid idea about family structure and language.”
But despite their shortfalls, Gavan is “thrilled” about the proposed reforms, particularly the prospect of being listed on her child’s birth certificate.
“It’s incredible,” she says. “I don’t know how we’ll mark the event, but we’ll do something to celebrate ... maybe have a special Mothers’ Day.”
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