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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-05-18 Daily Xml
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Parliamentary Committees

SOCIAL DEVELOPMENT COMMITTEE: SAME-SEX PARENTING

The Hon. I.K. HUNTER (16:27): I move:

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

In May 2010, the Social Development Committee resolved to establish an inquiry to examine how current South Australian laws impact same-sex parents and their children. The terms of reference of 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. The Australian Bureau of Statistics began collecting data on same-sex couples only as part of the 1996 census. Prior to this, no statistical information was gathered on how many people lived in a same-sex partnership in Australia.

Indeed, the committee heard that what data does exist should be treated with some caution as it is likely to underestimate the actual number. In some ways, it is not surprising that the number of same-sex couples in South Australia cannot be easily quantified. Evidence from the inquiry suggested that some people are reluctant to identify that they are in a same-sex partnership, due to community prejudice and discrimination.

Notwithstanding the difficulties in data collection, the committee commenced its inquiry on the premise that some South Australian same-sex couples already have children and others are planning to do so. It might be an appropriate time for me to take the opportunity to thank the other members of the committee for their contribution. First, from the other place, Mr David Pisoni, Ms Frances Bedford, Mr Alan Sibbons and the Hon. Dr Such. It should be noted that the motion to establish an inquiry was moved by Mr Pisoni.

From this chamber, I thank the Hons Ms Jing Lee, Ms Kelly Vincent and Mr Dennis Hood. The committee is a diverse one, and the spirit of cooperation shown by members made it possible to work through the issues in both a reasoned and sensible way. I thank them all for that. I also acknowledge and thank the staff of the Social Development Committee for their contribution. Most of all, on behalf of the committee, I thank those individuals and couples who were prepared to provide intensely personal stories about the challenges they face as same-sex parents.

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 for children. 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, in the context of a heterosexual relationship, the law recognises that biology is not a pre-requisite for parental status.

There is no similar presumption of parentage for same-sex co-parents. In South Australia, 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 committed long-term relationship with her partner and have consented to her partner having the procedure and have expressed a clear intention to co-parent the child. South Australian law does not permit the female co-parent's name to be listed on the child's birth certificate. On this matter South Australia lags behind every other Australian jurisdiction.

So, what does this lack of legal recognition actually mean in people's lives? It may mean that the same-sex co-parent will find it difficult to enrol the child at school or approve school excursions. Far more concerning, however, it may mean that they will be unable to legally give permission for the child to be treated in a medical emergency. It may mean, in the event of the death of a biological parent, that the co-parent will struggle to retain custody of her child, or if the co-parent dies intestate the child may have no claim on that parent's estate.

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. Obtaining such an order can, however, be a costly and complicated process. For those same-sex couples who have used parenting orders to provide some legal protection, evidence suggests that this protection is not comprehensive.

Moreover, the committee heard that parenting orders are generally used when couples separate and there is a conflict in the relationship about where and with whom a 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 a child's parent. Such a change would bring South Australia in line with other Australian jurisdictions and prevent the need for lesbian couples to give birth interstate in order to have the co-parent legally recognised and placed on a 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.

While some witnesses argued that non-biological same-sex parents should not have their name placed on a child's birth certificate because this would introduce inaccuracies (so-called) to birth certificates, the committee does not accept this argument. As mentioned previously, South Australian law already recognises that a biological link to a child is not a pre-requisite for legal parenthood, and such 'inaccuracies' are currently mandated by law in this state.

Another issue to emerge in the course of the inquiry concerns the 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 of regulated clinical settings.

The committee notes that this may place a woman and her child at risk of disease because the donor is not thoroughly screened for genetic diseases or sexually transmitted infections. Furthermore, the use of self insemination in private arrangements may mean that a child born through such arrangements will be denied information about the full circumstances of their birth and genetic background. 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. What evidence was received, however, suggests that surrogacy is not an intervention that will be widely used by same-sex parents. The committee notes that, in November 2009, the South Australian parliament passed the Statutes Amendment (Surrogacy) Act 2009 legalising altruistic gestation or surrogacy in South Australia. This act permits altruistic gestation or surrogacy, 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 that 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 Australian Capital Territory and, in limited circumstances, Tasmania. In South Australia, however, same-sex couples are prohibited from adopting children, yet they are able to foster children. To allow same-sex couples to foster care and then deny them an opportunity to adopt children is not only manifestly unjust, it is entirely hypocritical.

The committee has recommended that same-sex couples should be allowed to adopt, subject to the same stringent eligibility criteria that apply to opposite sex couples. The committee acknowledges that this recommendation is little more than a symbolic gesture, except in one particular situation: that of step-parent adoption. The reality is that the number of people who wish to be adoptive parents far outweighs the number of children who require adoption. For example, in 2009-10, 23 children were adopted in South Australia. Of these, only two were local adoptions. The remaining 21 were inter-country adoptions.

Even if legislation is amended to allow same-sex couples to be eligible to adopt under local adoption criteria, inter-country adoption will most likely remain closed to them because the countries that participate in these schemes do not allow children to be adopted by same-sex couples. Nevertheless, the ability for same-sex couples to apply to adopt the biological child of the other party to that relationship is an important right, and a change to legislation to allow this to occur is long overdue.

For those who may continue to argue that the current state of play is perfectly fine and requires no change at all, I pose the following questions. Is it fair for the law to deny a child the right to have their non birth mother listed on the birth certificate when the law already recognises that biology is not a prerequisite for legal parenthood? Is it right that a child who is cared for and loved by two women in a committed long-term relationship is at risk of being taken away should the birth mother die? Is it right to deny a child their lived experience, deny them their truth, pretend that they do not have two parents who care for them and love them, pretend that they do not have two sets of extended families that have embraced them as an important and central part of their family? Is it right that same-sex couples can foster care some of the most vulnerable children in our community but are denied an opportunity to adopt?

Contrary to some statements 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 family unit. The committee considers that attaching a narrow boundary to the definition of family serves only to exclude a significant proportion of the South Australian community. The committee recognises that family units are not fixed entities. They have changed over the years and take on different forms in different social and cultural settings. Many children are born into or live in single-parent families, blended families and multigenerational families.

Fundamentally, no child should be disadvantaged or discriminated against in any way because of how they were conceived. The committee heard no compelling evidence that children are disadvantaged by being raised by same-sex parents or that same-sex parents are unfit to look after children. On the contrary, evidence presented by same-sex parents suggests that they strive for their children to be well-adjusted, productive members of our community. The committee has formed the view that how well children develop is largely influenced by the level of cohesion within a family and the support and care children receive rather than the particular formation that a family unit takes.

In addition, the committee heard that there is no basis in any of the credible peer review research to support the claim that same-sex parents are more likely than heterosexual parents to raise lesbian or gay children. Such claims were repeatedly put by those opposing same-sex parents, their prevailing mantra: homosexual parents will raise homosexual children. Of course, the underlying assumption of such concerns is that it is somehow wrong for a child to grow up gay or lesbian. It goes without saying that many of us find such views not only hurtful but deeply offensive and of course quite without any basis in fact.

It saddens me greatly that successive governments have lacked the will to respond to this issue. As a result South Australia lags behind every other Australian jurisdiction. For a state that at one point in his history was considered to be socially progressive, the pace of change on this issue has been far too slow. The committee does not want this report or its recommendations to languish for months without action. 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. This draft legislation is appended to the report.

While the focus of this inquiry was on what legislative reform governments should implement, the committee recognises that the broader community must play a key role in ensuring all children are supported to reach their very best, irrespective of the family unit into which they have been born and/or live. Discriminatory laws that serve only to disadvantage and further marginalise children born of same-sex relationships have no place in a caring and tolerant community.

The committee notes that removing legislative inequality against same-sex families will not necessarily end the disapproval shown by some sections of the community towards these families. However, it will be a very significant and important step in lessening the discrimination and social exclusion experienced by these parents and their children. I commend the report to the house.

Debate adjourned on motion of Hon. J.M. Gazzola.

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