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The Family Court in Sydney handed down a decision on August 3 concerning a surrogacy arrangement which, although involving opposite-sex couples, will have consequences on surrogacy arrangements entered into by gay male couples.
In Re: Michael: Surrogacy Arrangements, a woman and her husband wanted to have a child. The woman previously had her eggs harvested and stored, but she could not conceive. Her mother volunteered to carry the embryo and surrender the child at birth. The surrogate mother was in a de facto relationship with another man.
The decision looked at provisions of the Family Law Act concerning who is a parent in artificial conception procedures and surrogacy.
In Australia, laws concerning surrogacy are state-based.
Under NSW’s Family Law Act, a person named on a birth certificate as a parent is deemed to be a legal parent of that child.  In surrogacy arrangements involving gay male couples as the intending parents (usually overseas arrangements), some countries can issue birth certificates naming the sperm donor or both men as parents.  Depending upon where the child was born and which country issued the birth certificate, this was previously enough to deem the men named on the birth certificate as parent(s).
However, the Family Law Act also provides that where a child is conceived as a result of an artificial conception procedure the woman who gave birth is deemed a parent as is her married or de facto partner. Where a surrogacy arrangement is involved, the child will not have the DNA of the surrogate mother or her partner yet they are still deemed parents. Changes to the legislation in December 2008 made it clear that a sperm donor who is not in a marriage or de facto relationship with the birth mother is not deemed a parent.
The decision in Re: Michael provided that even though there was a birth certificate naming the sperm donor as the father, the section of the Family Law Act deeming the surrogate mother and her partner as parents prevailed over the section deeming the sperm donor as a parent because of birth registration.
The consequence of this decision for gay male couples having children through surrogacy arrangements overseas is that birth certificates naming either or both of them as parents will not be sufficient to deem them parents under current Australian law. To acquire parental responsibility they will need to apply to a court for a parenting order.
There is room for more law reform.

info: Paul Boers is an Accredited Specialist (Family Law) at Craddock Murray Neumann, and also volunteers at the Inner City Legal Centre providing family law advice, particularly concerning same-sex relationships.

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