Same-sex couples: Can you both be on the birth certificate?

Published 07 Nov 2017

Becoming a parent is an exciting life moment, both for the person giving birth and their respective partner. There has been some confusion in Australian family law, however, with the role of children conceived through in vitro fertilisation (IVF).

Historically, only the biological mother has been listed on the birth certificate, with the sperm donor being listed as the legal father of the child. There is also some debate over homosexual male couples that have children through surrogacy - what does the law look like in NSW today?

Children born through IVF can now have both mothers on their birth certificate

As of 2008, the law has changed, meaning same-sex female couples who both wish to have their names on their children's birth certificates can do so. In order for this to occur, the second partner's consent needs to be given at the time of conception (presumably via IVF). When the child's birth is registered, both mothers can simply put their respective names on the document.

Certificates can also be changed retroactively, so children born of two women from years past can legally now list both parents. Individuals or parents who wish to change a birth certificate can do so via post, or they can go to the Parramatta Registry Office - no appointment is needed at this branch.

What about same-sex male couples and surrogacy?

Unfortunately, this new law centres specifically around children conceived through IVF, not those born via a surrogate mother. This precludes most same-sex male couples, as paid surrogacy is illegal in Australia, and altruistic (unpaid, except medical expenses) surrogacy is quite rare. As of now, the sperm donor in a same-sex male couple that used a surrogate can apply to the Family Court for parental responsibility, but the other parent may not.

A recent case in NSW was the first in which a homosexual male couple were granted parental guardianship of a child born through altruistic surrogacy, according to the Daily Telegraph. This was a landmark case, as most couples who use a surrogate do so overseas and must go through the child's life without being legally recognised as its parents.

As you can see, the laws surrounding IVF and surrogacy, same-sex couples and parental responsibility are quite complex and subject to change at any time. Surrogacy in particular presents a legal grey area that can become quite messy should the surrogate decide that she wants to maintain guardianship of the child.

In these cases, it is important to seek the help of a Parramatta family lawyer as soon as possible. Reach out to one of our experienced legal specialists at Malouf Solicitors today for more information.

Please call us on 02 8833 2000 to speak with a lawyer

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