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Same Sex Relationships – Children & Surrogacy Family Law Issues

In 1999, the Government amended the Property (Relationships) Act NSW to include same sex relationships within the definition of “de facto relationships”. This encompasses everyone in the LGBT community (lesbian, gay, bisexual and transgender). Following this, the Government went even further to make it unlawful to discriminate against same sex couples and their families by passing its ‘same sex law reform package’ in November 2008. This reform specifically made it unlawful to discriminate against same-sex de facto couples in areas such as family assistance, superannuation, citizenship, immigration, aged care, social security, pharmaceutical benefits, Medicare safety net, veteran’s entitlements, child support and family law (children, surrogacy, property settlement, etc).

Registration of the Relationship of Same Sex Couples

The NSW Relationships register commenced operation on 1 July 2010. It provides legal recognition for a same gender couple, by registration of the relationship. This may also include the registration of a couple who do not live together.

Any two adults can apply for registration of their relationship provided that at least one of them lives in NSW and that both of them are:

  1. Over 18 years of age;
  2. Not married;
  3. Not in another registered relationship; or
  4. Not related by family.

Same Sex Couples & Children

Under the reformed family law legislation, a child who is born to, or adopted by, a same-sex couple legally will be recognised as a child of both parents. This includes:

  • Children who are born through assisted/artificial conception to lesbian couples;
  • Children who are legally adopted by same sex couples (any couple within the LGBT community)
  • Children who are born under certain surrogacy arrangements that are recognised under the Surrogacy Act 2010 (NSW)

This includes the ability to have both parents names recorded on the child’s birth certificate.

Same Sex Couples & Surrogacy

Surrogacy is a form of “assisted reproductive treatment” (ART) that involves a woman conceiving a child in her uterus for another person or couple, and then legally surrendering that child to the person or couple. The Surrogacy Act 2010 (NSW) commenced in 2011 and distinguishes between commercial and altruistic surrogacy arrangements. Commercial arrangements are illegal in NSW, while altruistic arrangements are legal in NSW.

Commercial arrangements are those that involve some kind of fee or reward being passed from the intended parent/s to the surrogate birth mother. This includes the transference of gifts, items of value, property and any type of material benefit. However, this excludes a number of “reasonable” monetary payments to the surrogate birth mother, in the form of medical, travel, legal and employment (lost wages) expenses. All of these expenses require receipts and need to be formally documented.

It is currently illegal to enter into, advertise for or try to solicit any kind of commercial surrogacy arrangement in NSW. This applies to intended parent/s in NSW who attempt to enter into a commercial arrangement with a surrogate birth mother located anywhere else in the world.

However, intended parents may advertise for an altruistic arrangement, provided the advertising is free (for example, a notice in a hospital).

Altruistic arrangements are those that do not involve any kind of commercial arrangement or advantage (financial or otherwise) to the surrogate birth mother. Altruistic arrangements are very complex and will involve a number of emotional, medical and legal issues, which could require a significant investment from the intended parent/s. It is important that any such arrangement be discussed at length and agreed upon, before any formal agreement is in place. We recommend seeking legal advice from a family lawyer who has experience in surrogacy before entering into an altruistic surrogacy arrangement. Early legal advice could save a lot of time, costs and emotions.

The legal rights of same sex couples vary from State to State and it is important that you know your rights before you make any decisions.

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