Recognition of Same-Sex Parenting in Australia

Abstract

Every state and territory in Australia has legislation the object of which is to provide legal certainty regarding the status of children and their parents. Such legislation was introduced in all jurisdictions in the 1970s to address the stigmatisation of children born to women who were not married and to remove notions of ‘illegitimacy’. There have been significant social changes since the inception of these Acts. Forty years later it is now common place that Australian families come in all shapes and sizes. Children may be parented by their biological parent(s) or they may have adoptive parents, foster parents, or live in blended families. The people who parent them may be heterosexual or gay, lesbian, bisexual or transgender (‘GLBT’). They may be single, married, in heterosexual de facto or same-sex relationships. While the law has been slow to recognise legal parentage in some of these circumstances it is now the case that changes to laws in federal and most state/territory jurisdictions recognise and in some instances facilitate same-sex parenting. This article compares the law in South Australia, which is the only jurisdiction yet to recognise and/or facilitate any form of same-sex parenting other than foster care, with those Australian jurisdictions that do. It is timely as there is currently a parliamentary inquiry into same-sex parenting in South Australia, and a private members bill tabled in parliament concerning the recognition of lesbian co-parents of children born as a result of assisted reproductive treatment (‘ART’).