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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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Parliamentary Committees

SOCIAL DEVELOPMENT COMMITTEE: SAME-SEX PARENTING

Ms BEDFORD (Florey) (11:05): I move:

That the 32nd report of the committee, on same-sex parenting, be noted.

The Social Development Committee was charged with examining how current South Australian laws impact on same-sex parents and their children. The terms of reference for the inquiry were advertised on 5 June last year. In addition, the committee wrote directly to a number of individuals and organisations with a known interest in the subject matter, inviting them to provide a submission. The inquiry generated a significant amount of community interest; in total, 680 written submissions were received. Submissions came from lobby groups, academics, religious groups and the general community. Importantly, the inquiry also heard direct evidence from same-sex couples who have children or who are hoping to establish their families in the future.

In relation to the first term of reference, the committee did not receive any reliable data on the number of same-sex couples with children living in South Australia. ABS data collection on same-sex couples is a fairly recent feature, having been first collected as part of the 1996 census. Accordingly, there is little point in throwing about possible numbers or percentages here. Indeed, the committee heard that what data does exist should be treated with some caution and is likely to underestimate the actual number. In some ways, it is not surprising that the number of same-sex couples living in South Australia cannot easily be measured. The inquiry heard that some people may be reluctant to identify that they are in a same-sex partnership due to community prejudice and discrimination.

Before continuing, I would like to take this opportunity to thank the other members of the committee for their contribution. First, from the other place, I thank the Hons Mr Ian Hunter, Ms Jing Lee, Ms Kelly Vincent and Mr Dennis Hood; from this chamber, I thank Mr David Pisoni, Mr Alan Sibbons and the Hon. Dr Bob Such. It should be noted that the motion to establish the inquiry was moved by Mr Pisoni. I also want to acknowledge and thank the staff of the Social Development Committee for their contribution. Most of all, though, I thank the individuals and couples who were prepared to share intensely personal stories about the challenges they face as same-sex parents.

By way of background, children come into same-sex led families in a number of different ways; some children were born of a previous heterosexual relationship, others through assisted reproductive treatment services or the use of donor sperm in private arrangements. The committee heard that while same-sex parents face similar challenges to other families, the lack of legal recognition of the non-biological parent creates additional difficulties. This was one of the main areas of concern raised during the inquiry.

At present, under South Australian law, if a married woman becomes pregnant through the use of assisted reproductive treatment with donor sperm, her husband is treated in law as the father of the child and his name is placed on the child's birth certificate. This is despite the fact that he does not have any biological connection to the child; in other words, current law already recognises that biology is not necessarily a prerequisite of parental status. Unfortunately, there is no similar presumption of parentage for same-sex co-parents.

The partner of a lesbian woman who has become pregnant through the use of donor sperm is not recognised in law as a parent, even though she may be in a long-term committed relationship, have consented to her female partner having the procedure and expressed a clear intention to co-parent the child. South Australian law does not permit the woman's name to be listed on the child's birth certificate. The inquiry heard that this lack of legal recognition may mean that the same-sex co-parent is not easily able to enrol the child at school or approve school excursions. However, far more concerning is that it may mean they may not be able to legally give permission for the child to be treated in a medical emergency. It may mean that in the event of the death of the biological parent the co-parent may struggle to retain custody of the child.

The committee was told that one of the only ways a same-sex co-parent can establish a legal relationship with their child is by obtaining a Family Court parenting order. However, the inquiry heard that obtaining such an order can be a costly and complicated process; moreover, the committee heard that parenting orders are generally intended for use when couples separate and there is animosity about where and with whom the child should reside. As such, parenting orders were neither intended nor designed to be used by couples in stable and committed relationships.

The committee has called on the government to introduce legislation as a matter of urgency to amend current parentage laws to recognise the female partner of a birth mother as the child's parent. Such a change would bring South Australia in line with other Australian jurisdictions and prevent the need for lesbian couples to travel to other jurisdictions to give birth in order to have a co-parent legally recognised and placed on the child's birth certificate. In addition, it would help resolve inconsistencies in federal and state legislation which, at present, mean that, in the event of a relationship breakdown, a non-biological same-sex parent is liable to pay child support at the federal level but remain without parental legal status at the state level.

Another issue to emerge in the course of the inquiry concerns eligibility criteria for access to assisted reproductive treatment. In South Australia, laws governing access to assisted reproductive treatment require that a person must have a diagnosis of medical infertility. To date, infertility has been interpreted in a narrow sense within a medical framework. This interpretation has significant implications for same-sex couples, in that it specifically excludes those couples who may not have any medical impediment to achieve pregnancy but whose sexual orientation prevents them from conceiving without some form of assisted reproductive treatment.

The committee heard that some lesbian couples who have been denied access to assisted reproductive treatment in South Australia have travelled to other jurisdictions where laws are far less restrictive, often incurring unnecessary expense and stress. The committee also heard that limited access to assisted reproductive treatment in South Australia may mean that some women will choose to self-inseminate outside the regulated clinical settings.

The committee knows that this may potentially place a woman and her child at risk of disease because the donor is not thoroughly screened for genetic diseases or sexually transmitted infections. On this issue, the committee has recommended that current legislation governing assisted reproductive treatment be amended to incorporate a broadening of the criteria used to define infertility, consistent with provisions contained in Victorian legislation. The committee has also called on the government to improve the capacity for children conceived through the use of donor sperm in private arrangements to access information about their genetic heritage.

The committee received very little evidence in relation to surrogacy. The committee notes that, in November 2009, the South Australian Parliament passed the Statutes Amendment (Surrogacy) Act 2009, legalising altruistic gestational surrogacy in South Australia. This act permits altruistic gestational surrogacy in South Australia, but only to those who are legally married, or have been in a heterosexual de facto relationship for at least three years. The committee does not support the restriction of surrogacy based on this discriminatory criteria and has recommended the law be amended to allow same-sex couples access to this medical intervention, subject to proper assessment.

In relation to adoption laws, same-sex couples are eligible to adopt a child in Western Australia, New South Wales, the ACT and, in limited circumstances, Tasmania. In South Australia, however, same-sex couples are prohibited from adopting children yet they are able to foster children. This double standard should be removed. The committee has recommended that same-sex couples should be allowed to adopt, subject to the same stringent eligibility criteria that applies to opposite sex couples.

The committee recognises that such a recommendation runs the risk of creating false hope for some same-sex couples. The reality is that the number of people who wish to be adoptive parents far outweighs the number of children who require adoption. Moreover, even if legislation is amended to allow same-sex couples to be eligible to adopt under local adoption criteria, inter-country adoption will remain closed to them. Nevertheless, the ability for same-sex couples to apply to adopt the biological child of the other party to that relationship is an important one and a change to legislation to allow this to occur is long overdue.

Contrary to some evidence put before the inquiry, the committee does not accept that affording same-sex couples the same legal rights as heterosexual couples will lead to the social disintegration of the current known family unit. The committee recognises that family units are not fixed entities. They have changed over the years and taken on different forms in different social and cultural settings. Many children are born into, or live in, single-parent families, blended families or multigenerational families. Fundamentally, no child should be disadvantaged or discriminated against in any way in their lives because of how they were conceived.

In conclusion, the committee heard no persuasive evidence that children are disadvantaged by being raised by same-sex parents. It did, however, hear ample evidence from a significant number of same-sex couples whose lives and that of their children have been, and continue to be, adversely affected by current South Australian legislation.

The committee also heard repeatedly that South Australia lags behind every other Australian state when it comes to protecting the rights of children born to same-sex parents. As such, the committee is keen to see its recommendations acted upon as soon as possible. To this end it has, in accordance with its legislative functions and powers, instructed the Office of Parliamentary Counsel to draft legislation in line with its recommendations.

Finally, while the focus of this inquiry was on what legislative reform the government should implement, the committee notes that the broader community must play a key role in ensuring all children are supported to reach their very best, irrespective of the family formations into which they are born or live. I hope this report and its recommendations go some way towards meeting this aim, and I commend the report of the committee to the house.

The Hon. R.B. SUCH (Fisher) (11:15): I was privileged to be part of this committee. I think it highlights in a general way the importance and the value of committees if people on those committees go about them in a constructive way, without trying to score political points. On the committee we had the Hon. Dennis Hood, who clearly has a different view to the majority of the committee; I respect that. However, the value of the committee process is that you can hear from the community and various groups in the community—church groups or whatever—and they can put their view, and the committee can then weigh up that information and make recommendations.

South Australia, as I recall, is the only state that does not formally recognise same-sex parenting by way of information on birth certificates and so on. We had many same-sex parents who presented to the committee. I think nearly all of them were lesbian parents. The point that came across is that they desperately wanted a child, and, in fact, they already had a child as a result of actions. In some cases they had to pay $30,000 or more to get imported semen from the United States or travel interstate for IVF-type treatments at great cost. To anyone who heard those parents, it was obvious that they really wanted a child.

In contrast, we can say there are many heterosexual couples who do not really want the child they have, and the child suffers as a result. Some people argue that you need a male and a female or a mother and father as parents. If you look at history, sadly, a lot of war widows managed to successfully bring up a child or children in the absence of the father. So, for example, with a lesbian couple where you have two mothers, I cannot see the logic of suggesting that having two mothers is worse than having one, or that it would be less adequate than one mother.

It was quite clear that these couples—the parents—felt they were discriminated against, and in reality they are because, when they travel, they cannot show a birth certificate that carries the sort of information that authorities overseas want. Many of them—contrary to what people think—acknowledged that there had been a donor father, and in some cases they may want that listed on a birth certificate, and I think that is fine.

It was interesting that, contrary to the stereotypes, some of the lesbian parents—some of whom had a son, which some people might see as a bit of a paradox—said to the committee that there was no way they were trying to bring up their son as some sort of female-orientated person. They often brought their children to the hearings, actually. In one case, a boy, who had been provided with dolls and things like that, threw the dolls away to get on with his trucks, cars and so on. So, from the evidence we heard, there is no deliberate attempt to turn boys into girls or to artificially feminise them in some social experiment.

The lesbian parents we heard from made a great effort to ensure that the boy, or boys, had male role models. In some cases, it was the sperm donor, but in other cases it involved the extended family. Many of these people, contrary to what you might think, were active churchgoers and well accepted in their church communities. I think, like any minority group in the community, people tend to stereotype them and discriminate against them and, as I said before, there have been plenty of war widows who have raised children and those people have turned out to be fine individuals and citizens.

The committee, by a clear majority, supported reform. The committee did not want to see a continuation of the discrimination against these people and felt that the system should change so that if they wanted to have the reality of the parents on the birth certificate, then that should happen. I think this is an historic report. It does not accord with the views of a lot of people in the community, and I recognise that, as typified by the Hon. Dennis Hood.

I surveyed my electorate and over 400 people responded. The majority of the ones who responded did not support same-sex parenting. You might ask why I am supporting it. You cannot say that 400 out of 23,000 when it is not done as a proper stratified random sample is scientific, so you cannot categorically say that the majority of the 400 who were against it are typical of my electorate. I do not believe they are and certainly would not be if the situation was explained to them, as was explained to the committee.

I commend this report and all the members on it. It is a good example of how our committee structure can work and does work with fairly minimal resources, and I think the community benefits from that sort of activity by members of parliament working in a constructive way to address issues of concern in the community.

Debate adjourned on motion of Mr Pederick.

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