For many gay couples, the thought of having children together is both joyful and daunting, not only for the sheer challenges and richness of raising a family, but the significant obstacles both legal and operational, to making this happen. Perhaps one of the biggest challenges facing same-sex couples is societal prejudice which culminates in lack of services, support and suitable legislation. Whereas heterosexual couples can conceive a child without any need for legal intervention, the road for the same sex couple or single must revolve to a large extent around the law and what is and isn’t legal.
According to the 2002 NSW Gay and Lesbian Rights Lobby Inc report, around 10% of gay men and 20% of lesbians are parents. In a female same sex couple, the conception of a child will occur usually through one partner conceiving via an artificial insemination with either a known, (50%-70%), usually gay donor, or an anonymous sperm donor. Between half and two thirds of gay sperm donors later have some contact with the child.
In a male same sex couple, conception is through entering into a surrogacy arrangement, where either one or both donate sperm or where the sperm is from an anonymous donor. A surrogate is a woman who carries a child for a couple/single person and gives the child to them once it is born. She may be the baby's biological egg donor (traditional surrogacy) or be implanted with someone else's fertilized egg (gestational surrogacy). Surrogacy agreements are either commercial (Fee paying) or non-commercial, (altruistic - where the surrogate agrees to receive no payment or reward). An application for parentage has to be made to the court by the intended parents to obtain rights to the surrogate child.
The other option is adoption, which is legally placing a person under the age of 18 permanently with a parent or parents other than the birth parents. Around 500 adoptions occur per year in Australia and the first legal Australian gay adoption was in Western Australia in 2007, by a male same sex couple.
The Legal Side
Since national changes on 1 July 2009, same-sex couples receive the same level of recognition as de facto opposite-sex couples in federal legislation including tax, health, superannuation, and aged care. However, things still remain different state to state regarding assisted reproduction.
Legally across Australia, artificial insemination is referred to as reproductive technology and at a state level, the laws regulating artificial insemination and surrogacy vary considerably, as each state either has their own act, or no state legislation at all. Navigating through this can be enormously draining and emotional.
Most state differences relate to access and eligibility for assisted reproductive services, legal rights and acknowledgement of parentage for LGBT people, and is changing quite regularly, therefore it is wise to seek specialist legal advice around this before proceeding. For example, Queensland released new legislation on surrogacy in February 2010.
If you are thinking of using a Sperm Bank, most children of sperm bank donor material have no access rights to identifying information and the donors are required to waive any parental rights over your child. Some sperm banks may permit the child to access the donor once the child becomes an adult. The advantage of using a sperm bank is anonymity and they will test semen for diseases and collect health and genetic information from donors so this can inform your choices. The disadvantages of using a sperm bank are that they can be expensive and they freeze semen which can cause it to be less vigorous than fresh sperm and therefore it may take you longer to get pregnant. In regard to single women accessing sperm, donors must give specific consent for their sperm to be used for single women.If you usean unknown donor for insemination, or a surrogacy arrangement, you may need to consider how you will speak to your children about who their donor father is or biological parents are.
If you choose to get pregnant using a known donor such as a close friend, or relative of your partner, the advantages are that you know his personality, family history, physical and mental health, and he might be open to being involved in the child's life if you wish. You don't have to pay for the sperm, although you may have to pay a doctor to inseminate you and the donor to have screening tests for HIV, and other STI’s. Should the relationship with the known donor deteriorate, you will need to consider what the plan will be as he may apply for parenting orders over your child.
Victoria, South Australia, Queensland, Tasmania, and the Australian Capital Territory (ACT) all have legislation regulating surrogacy. If you are interested in doing non-commercial surrogacy in Australia, it is strongly recommended that you seek legal advice around the specific Act that relates to the state in which you reside, before proceeding,as it may be that onlythe birth parents are lawfully deemed to be the legal parents and the child will be registered in their name. As a gay couple you may need to apply to the court for parentage to gain legal right to the children.
All states must comply with The National Health and Medical Research Council (NHMRC) guidelines which state that clinics must not facilitate surrogacy arrangements unless every effort has been made to ensure that participants have a clear understanding of the ethical, social and legal implications of such arrangements; and have undertaken counselling to consider the social and psychosocial significance for the child and themselves.
Most often gay men seek surrogacy in the U.S.A. as generally the legal system accommodates their needs more fully.
Adoption for same-sex couples differs from state to state with some states making this available and others only allowing foster care as an option. Other states allow single LGBT applicants but they are considered less of a priority than couples, and lengthy waiting lists can make it virtually impossible. Individuals may usually only adopt a child with special needs or in cases of exceptional circumstances. In November 2009, The Rev. Fred Nile introduced the same sex adoption referendum proposal into NSW parliament proposing the requirement for a referendum prior to any change of NSW legislation. Again, seeking up to date legal advice is strongly recommended.
The Human Side
What about the Children:
These days, there are many different combinations and permutations of family; same sex couples, heterosexual couple with children, single parents, and those who have re-partnered into a blended family. Thus children are now exposed to this variety of pictures of what makes a family. Depending upon the openness of the environment in which your children are raised and exposed to, responses from peers and others can vary: children’s feelings may range anywhere from feeling different from their peers who may have a mum and dad living in the same household to feeling proud of having “two mums and two dads”. Being involved in your child’s school and community to advocate for diversity can be a way of feeling empowered and modelling acceptance to your child. As well as this, involving yourself in LGBT parenting support groups can expose your child to other families that are similar in nature. Familiarising yourself with community agencies that are LGBT friendly can help with knowing where to go for support.
A number of LGBT couples will have children included from a prior opposite sex relationship, and along with any other blended family, face the challenge of integrating prior partners and children into the new family, and establishing rules and roles for everyone. Sometimes counselling can be a great help with this process as a way of sorting through issues that are raised.
Often same-sex parents are conditioned to be concerned with how their children will be affected by growing up in a household of same-sex parents. Surrounding children with positive role models is important, and research shows it is more about the quality of the parenting, than the gender of the parents, when it comes to the children’s wellbeing. A research review of 81 studies of one- and two-parent families, including gay, lesbian and heterosexual couples conducted by the University of Southern California, found that "No research supports the widely held conviction that the gender of parents matters for child well-being," and that they are “statistically indistinguishable” from children from heterosexual couples in areas such as self esteem, social adjustment and school performance.
As with any parenting role, assisting your child to form secure attachments to both care-givers and helping them to feel special, loved and secure will be an important part of their development. Familiarising yourself with the basic developmental tasks of children at different stages, and reading parenting literature will assist with being sensitive to their needs.
What happens if the relationship ends?
According to S.60H of the Family Law Act (1975) apresumption of parentage will apply only to the birth mother and at present, whether the sperm donor is known or not, there appears to be no presumption of parentage in his favour and thus he will have no parental rights/responsibility. Legal advice from a specialised practitioner is recommended to determine the rights pertaining to your case.
For more information or to make an appointment to speak to one of our counsellors please call 1300 364 277.
- For information on state laws relating to artificial insemination and surrogacy try: http://www.dh.sa.gov.au/reproductive-technology
- The Donor Conception Support Group of Australia Inc. firstname.lastname@example.org (02) 9793 9335
- information on the international surrogacy process, contracts and other useful tips and resources.
- information about artificial insemination and factors involved
- Assisted Reproductive Technology & Adoption Position Paper Three: Surrogacy
- LGBT rights in Australia http://en.wikipedia.org/wiki/LGBT_rights_in_Australia
http://www.legislation.qld.gov.au/Bills/53PDF/2009/SurrogacyB09.pdf 2009 surrogacy bill for qld.
Australian Sperm Donor Registry
A database of donors, a fee is payable to access contact details of potential donors.http://www.australianspermdonorregistry.net/
- Stacey, J., & Biblarz, T. J how does the gender of parents matter?
- Journal of Marriage and Family, Volume 72, Issue 1
- Stacey, J., & Biblarz, T. J. (2001). (How) does the sexual orientation of parents matter? American Sociological Review, 66, 159 – 183.
- Millbank, J. Meet the Parents: A Review of the Research on Lesbian and Gay Families. Gay and Lesbian Rights Lobby (NSW), 2002. Available from: URL:
- Meet the parents [pdf]
- http://www.aifs.gov.au/afrc/bibs/samesex.html - Australian Institute of family studies- for research articles on same sex families
- Pride and joy: a resource for prospective lesbian parents in Victoria.
Produced by the Royal Women’s Hospital. Melbourne, 2003. Available from the Royal Women’s Hospital, Phone 03 9344 2000
- Millbank, J- And then ... the brides changed nappies: Lesbian mothers, gay fathers and the legal recognition of our relationships with the children we raise
Gay and Lesbian Rights Lobby of NSW, 2003, 26p, and Online