Wednesday, July 08, 2009

Qld: Same sex parenting briefing paper

Just FYI.
If I knew how to do a fold, I would (any tips?) It's quite long.


Action Reform Change Queensland (ARCQ) is a community-based organisation in Queensland which advocates for lesbian, gay, bisexual and transgender equality through campaigns for legal and social change, and public education. ARCQ was formed in 2003 with participation from individuals and established community groups.
Key Points
· A significant number of same-sex couples either currently have children or aspire to have children.
· Queensland law does not currently recognise the de facto partner of a lesbian mother as a parent when accessing Assisted Reproductive Technology (ART), in contrast to the way it treats the male de facto partner or husband of a heterosexual mother.
· Extending legal recognition to co-parents in same-sex relationships would ensure they can both perform day to day parenting tasks and fulfill their parenting responsibilities.
· Protecting the best interests of a child is one of the most important principles of international law.
· Research demonstrates that children raised by same-sex couples experience the same developmental outcomes as those raised by heterosexual couples.
· HREOC have found that legal discrimination against people in same-sex relationships and their children amounts to the breach of a number of international human rights obligations.
· Access to a regulated system for altruistic surrogacy should be available in Queensland and should not discriminate between couples on the basis of relationship status or sexuality.
· Adoption, parentage presumption and access to altruistic surrogacy should be available to same-sex couples with the non-biological parent recognised as the child’s parent – reform the Adoption Act 1964, Status of Children Act 1978 and the Births, Deaths and Marriages Registration Act 2003.
· A 2008 Galaxy Poll demonstrates that the majority of Queenslanders support law reform.

Protecting the best interests of a child is one of the most important principles of international law and the Convention on the Rights of the Child (CRC) in particular.
A significant proportion of same-sex couples also parent children. 4,386 children live in same-sex families in Australia (ABS, 2007). This figure does not include children of non-resident or single lesbian or gay parents, or adult children living out of home. It is estimated that 20% of lesbians and up to 10% of gay men are parents. One study has found that 42% of young lesbians intend to have children in the future.
Some children are born to one member of a same-sex couple during an earlier opposite sex relationship. Many children are born to lesbian couples using donor sperm and Assisted Reproductive Technology (ART). Some children are being born into and raised by gay male couples with the help of a female friend or through a surrogacy arrangement. A few children may be adopted by one or both members of a same-sex couple.
Under family law, a child’s two legal parents are generally the woman who bears the child (the birth mother) and the male partner of the birth mother, if there is one (the birth father). These are generally the two people who are recorded on the child’s birth certificate as parents, which will be evidence of the legal relationship throughout the child’s life. In Queensland, this includes the male partner of the birth mother where the pregnancy arises from ART, in that it presumes that the male partner produced the sperm even when there is another donor. Alternatively, if a child has been adopted, the child’s legal parents will include the parents who adopt him or her. Adoptive parents can also be added to a birth certificate.
A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The birth mother will be a legal parent under the current family law system. A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent.
The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. But the lesbian co-mother and gay co-father(s) will not be treated in the same way as a birth parent.
Extending legal recognition to co-parents in same-sex relationships would ensure they can both perform day to day tasks without question, such as writing permission notes for school, collecting children from childcare or sport, making decisions in relation to their children’s education, taking a child to the doctor and making decisions in a medical emergency. Addressing the legal status of the parents also gives certainty to the children in relation to inheritance and other legal processes that may relate to the death or illness of a parent. Children would further benefit from the legitimising of their family structures afforded by legal recognition
The failure to recognise gay or lesbian co-parents of a child may breach a child’s right to identity under the articles 7 and 8 of the CRC. It may also breach Australia’s obligation to support and promote the common responsibilities of both parents in raising a child (article 18).
In Western Australia (WA), Northern Territory (NT), the Australian Capital Territory (ACT) and New South Wales (NSW), the birth mother and lesbian co-mother of an ART child are presumed to be the legal parents of the child, if they are in a genuine relationship when the child is born. They are both noted on the child’s birth certificate, to the exclusion of the sperm donor. Tasmania allows children in the care of a same-sex couple to be adopted by the non-biological partner. The Commonwealth and Victorian Governments have recently announced that they will make changes to recognise parents. Queensland and South Australia generally do not recognise children parented by same-sex couples. However, section 18B of the Status of Children Act 1978 provides that Queensland recognises lesbian co-mothers as parents if they are registered in WA, NT, ACT and soon in Victoria.
In the case of a lesbian co-mother of an ART child there is unlikely to be a competing interest. In the case of other lesbian or gay co-parents, there may be consensual agreements between the various people seeking to raise a child. The HREOC Inquiry supported amendments to legislation which open up additional options for a lesbian or gay couple to attain legal status and therefore better protect the best interests of their child.
A considerable amount of sociological and psychological research has been conducted over the past 25 years to examine the effect a parent’s sexual orientation has on the welfare and development of their children. The findings comparing lesbian and gay parents to heterosexual parents refute common stereotypes and concerns about lesbian and gay parenting.
It has been clearly demonstrated that the sexuality of a child’s parents has no connection to the child’s moral and cognitive development, well-being or happiness. When comparing children of heterosexual parents to children of lesbians and gay men no significant differences have been found in the social adjustment, social acceptance, or sociability of the children. Nor has any difference in the children’s peer relations such as quality of friendships or popularity been illustrated. In addition, no discernible differences have been found in the children of heterosexual or homosexual parents regarding a child’s gender role identification or sexual orientation.
The most important factor in a child’s upbringing has been identified as the care and love put into a child’s life. Lesbians and gay men display matched capability at loving and caring for their children as their heterosexual counterparts. For further information see the GLRL report, Meet the Parents.

The 2006 Census reported 24,681 same-sex couples in Australia (ABS, 2007). The Australian Bureau of Statistics acknowledges this figure is an underestimate as some couples may be reluctant to publicly disclose their same-sex relationship status, or may be unaware that same-sex couples will be counted in the Census.
Queensland has recognised same sex de facto couples since reform in 2002. The Discrimination Law Amendment Act 2002 (Qld) amended a wide range of existing Acts to introduce the term ‘de facto partner’ as a category of ‘spouse’ or to replace the term ‘de facto spouse’ with ‘de facto partner’. The new definition of ‘de facto partner’ is as follows: either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.Thus, a same sex partner in Queensland now has access to entitlements available to a ‘spouse’.
The Tasmanian reforms in 2003 introduced a relationship register alongside the introduction of the term ‘significant relationship’. A couple (same-sex or opposite-sex) who registers their relationship as a significant relationship will have prima facie proof of the existence of that relationship. Tasmanian law does not require the couple to live together in order to prove a significant relationship. A registered couple has prima facie proof of the existence of their relationship, so cohabitation need not be a fundamental element of proving a ‘significant relationship’. Registration of a relationship does not confer legal rights in itself but it may assist in demonstrating the existence of a de facto relationship. Civil union laws are now in place in the ACT as from May 2008. The new laws allow same sex couples to enter a legally recognised civil partnership. They also allow a civil ceremony to be conducted by the Registrar General.
Both NSW and Victorian consultations with the gay, lesbian, bisexual and transgender community highlight a significant level of desire for symbolic and ceremonial forms of relationship recognition. 80% of Victorian respondents and 74% of NSW respondents thought marriage should be available to Australian same-sex couples. In NSW, 70% of participants also believed civil unions should be available.
There are various models of civil unions in other countries.
Sometimes it is difficult for a couple to provide the evidence necessary to prove the criteria for a genuine domestic relationship. This may be particularly difficult for a same-sex couple who has not yet declared their sexuality to friends, family or workplaces for fear of the public reaction. Further, some same-sex couples have told stories of decision-makers who are resistant to the possibility that a same-sex couple can be a genuine couple.
Several people told the HREOC Inquiry that a formal ‘piece of paper’ could assist same-sex couples in proving the genuineness of their relationship and in asserting the rights that flow from such a relationship. The NSW Law Reform Commission believes that the advantages of registration schemes include greater certainty and recognition. They comment:
Registration has the benefit of certainty. That certainty removes the need for legislative preconditions such as requiring cohabitation. The parties to a relationship can be readily identified, and have demonstrated that they know about, and agree to be bound by, the legislation and its provisions. It would give people who do not wish or are legally unable to marry, such as gay and lesbian couples, the opportunity to have their relationship registered and formally recognised by the State. It also provides a system of recognition for people who do not wish to live together, but want to acknowledge their relationship of mutual support.
The ALP National Conference passed a motion on 27th April 2007 stating in part:
Labor will take action to ensure the development of nationally consistent, state-based relationship recognition legislation that will include the opportunity for couples who have a mutual commitment to a shared life to have those relationships registered and certified...based on the scheme that has existed in Tasmania since 2004.
These sentiments were echoed by Labor during the 2007 federal election. The then Shadow Attorney General, Joe Ludwig, gave repeated commitments to Lesbian, Gay, Bisexual and Transgender communities around Australia that a Rudd Labor Government would act on the Inquiry’s recommendations as a first term priority and negotiate nationally consistent, state-based relationship recognition legislation.
The Victorian Government is at present considering its options with regard to which model of registry arrangement it will adopt. It is understood that there is serious consideration of duplicating arrangements that were adopted in Tasmania.
It is important to acknowledge that a relationship recognition scheme will not satisfy all lesbian and gay couples, many of whom aspire to full equality through marriage or desire the option to choose marriage as do heterosexual couples. However, a relationship recognition scheme with a ceremonial element would be a significant step towards addressing these aspirations and removing the sense of social exclusion that lesbian and gay couples currently experience.
The lesbian, gay, bisexual and transgender community commissioned a Galaxy Poll in 2008 to explore the views of Queenslanders on a number of key issues. In summary, the poll found that:
· 60% of Queenslanders think that same sex couples should be able to have a civil union.
· 67% of Queenslanders think that children with same sex parents should have both parents recognised by law.
· 96% of Queenslanders think that more should be done to prevent homophobic bullying against gay and lesbian students in Queensland schools.

June 2009

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