SA parenting laws: a slap in the face

Are recent amendments to the Family Relationships Act 1975 equal rights or a slap in the face? Guest writer Poppy Matters asks.

Since the 1970s there has been an attempt from the legislature to recognise the changing social landscape of Australian families. Legal changes over the past 40 years have brought about recognition of families who come in many shapes and sizes; including same-sex families. One recent area of change has been around the ability of same –sex couples to register both names of the parents on the birth certificate of their child.

Until very recently same-sex parents have not both been able to be recognised on the birth certificate of their children. In December 2011 the Family Relationships (Parentage) Amendment Bill was made law and thus amendments were made to the Family Relationships Act 1975 that ostensibly rectified South Australia’s lagging position on recognition of same-sex parents and children of same-sex families. The Bill acts retrospectively and allows couples who qualify to have the non-birth parent’s name added to their child’s birth certificate even where their child was born before the Bill was accepted.

For a same-sex couple to qualify to register the non-birth parent on their child’s birth certificate, the non-birth parent must meet the legal requirements set out in the Family Relationships Act, which are:

• They must have been living together on a genuine domestic basis and have been doing so for at least three years (or three  of four years preceding the child’s conception); and
• The child must have been conceived through a legally recognised fertilisation procedure; and
• The procedure must have been undertaken with the consent of the non-birth partner; Or
• They must both be a party to a recognised surrogacy agreement (to which only married couples can legally qualify).

Ignoring the obvious discrimination this leaves in place against same-sex male couples looking to father a child, there are still many female couples whose dual parentage will be unrecognised. The main reason for this is that to qualify as a co-parent on a birth certificate, the birth mother must have conceived through a fertilisation procedure; which means an assisted insemination or assisted reproductive treatment [ART] within the meaning of the Assisted Reproductive Treatment Act 1988. This excludes all couples who have self inseminated from both being able to be registered on the birth certificate of their child.

Furthermore presently in order to qualify for ART a woman has to be, or appear to be, infertile, or there must be a high risk that she may become infertile in the future. This means that a woman who is fertile cannot obtain the treatment and, as such, has no way to have the non-birth parent recognised on the birth certificate.

The perverse reality of the current situation is that a non-birth parent can only be registered on a birth certificate if the woman who birthed the child was “lucky” enough to be infertile and as a result went through great expense, pain and risk to undergo ART.

It should be noted that there is presently before parliament a Bill, the Assisted Reproductive Treatment (ART) Amendment Bill 2012, which would allow women to receive reproductive fertilisation treatment(s) when in all the circumstances there is reason to believe she would not be able to fall pregnant without ART. However, even if passed this would not improve the position of same-sex couples who cannot afford to undergo a fertilisation procedure, or the many who have already conceived a child through self-insemination when this was the only option available to them.

Now that seems more like a slap in the face than equal rights to same-sex couples.

Poppy Matters is a lawyer at Camatta Lempens who specializes in family law matters and same sex and different sex de facto matters.