Review of the Status of Children Act 1996

Submission of the NSW Anti-Discrimination Board

June 2002

Contents

  1. Introduction…………………………………………………………………………. 3
  2. Objectives of the Status of Children Act 1996……………………………………3
  3. Inadequacies of the Status of Children Act 1996………………………………. 3
  4. Child conceived using fertilisation procedure and born to lesbian parents……3

3.2 Section 14(2) irrebuttable presumption……………………………………………4

  1. Parentage testing……………………………………………………………………. 5
  2. Issues outside the ambit of Status of Children Act 1996…………………………6
  3. Conclusions……………………………………………………………………………6

1. Introduction

The ADA makes certain types of discrimination unlawful in many areas of public life. While the Act includes a range of exceptions and exemptions, in general terms the ADA makes unlawful discrimination on the basis of race, sex (including pregnancy and sexual harassment), transgender status, marital status, disability, carer responsibilities, homosexuality and age in a wide variety of areas of public life. The areas of public life covered by the Act include work, education, provision of goods and services, accommodation and the activities of registered clubs.

The Status of Children Act is not an Act, which often comes to the attention of the Anti-Discrimination Board. The Board is mostly concerned with legislation, which causes, promotes or protects (by way of the ADA’s section 54 defence for acts done under statutory authority[1]) discrimination. It is not readily apparent how the Status of Children Act could cause or promote unlawful discrimination, or be used in relation to a section 54 defence under the ADA.

Nonetheless, the Status of Children Act 1996 does enshrine the right of ex-nuptial children to be treated the same as children born within a marriage for legal purposes including in relation to dispositions of property. Although, as we outline below, the Act does not achieve this for all ex-nuptial children. For the most part, the Status of Children Act works in conjunction with the ADA to promote the rights of ex-nuptial children irrespective of the martial status their parents. Whereas the ADA may provide a remedy where children are treated less favourably on the basis of the marital status of their parent, the Status of Children Act proactively mandates non-discriminatory treatment of ex-nuptial children by declaring their legal status to be unaffected by the marital status of their parents.

2. Objectives of the Status of Children Act 1996

The objectives of the Status of Children Act as reflected in the Minister’s Second Reading speech and from the Act itself include:

  • continuing to enshrine the right of ex-nuptial children to be treated the same as children born within a marriage for legal purposes including in relation to dispositions of property; and
  • providing an improved system for determining a child’s parentage including ensuring consistency between Commonwealth and State parentage presumptions.

3. Inadequacies of the Status of Children Act 1996

3.1 Child conceived using fertilisation procedure and born to lesbian parents

In our view the Status of Children Act does not ensure that all ex-nuptial children are treated the same as children born within a marriage, where an ex-nuptial child is conceived using fertilisation procedure and born to lesbian parents.

In relation to presumptions of parentage where a child is conceived through fertilisation procedure, s.14 provides:

  • that man who has provided his sperm for fertilisation procedure, and is not the husband or de facto partner of that woman concerned, is presumed not to be the father of the child (s.14(2))
  • in effect, that where a woman becomes pregnant by fertilisation procedures and is married to or in a de facto relationship with a man, that man is presumed to be the father unless he has not consented to the insemination, although he is not the biological father of the child. (s.14(2) and (6)).

These presumptions ensure that children conceived through fertilisation procedures do not suffer any legal disadvantage or social stigma by ensuring they have the same status under NSW law as other children.

However, the Status of Children Act does not provide the same status for children born to a lesbian couple. Where two women in a relationship decide to conceive a child through artificial insemination, and the birth mother so conceives with the consent of her female partner, the female partner is not recognised as a parent of the child, even though man who has provided his sperm for fertilisation procedure is presumed not to be the father of the child. Children born to lesbian couples are not treated the same as children born within a marriage. This clearly disadvantages those children as they do not have the same rights as other children, for example in relation to dispositions of property related to two parents and their relatives.

The NSW Parliament, Legislative Council's Standing Committee on Social Issues ("the Committee"), in its Inquiry into De Facto Relationships Legislation, recognised children of non-traditional relationships may face disadvantages.[2] The Committee recommended that “the issue of legal recognition of non-biological parentsto ensure children of those in non-traditional domestic relationships are not disadvantaged be fully examined, with a view to amending appropriate legislation if necessary.” [3] These issues raised by the Committee’s report were referred to the NSW Law Reform Commission (LRC) for consideration in its review of the Property (Relationships) Act 1984.

This reference to the LRC was in large part motivated by the need to examine the Property (Relationships) Act 1984 in light of the changing social context, “given the increasing numbers of people living together, the increasing social and legal acceptance of a wider range of family forms and the prohibition of discrimination on various grounds including sex, marital status and sexual orientation. Indeed, today recognition is given to many non-marriage like relationships.” [4]
One of the issues the LRC has considered is this issue of children conceived through fertilisation procedures to lesbian couples.[5] The LRC states:

The question must be asked whether it is appropriate to apply the presumption in the context of lesbian relationships, with the effect that the consenting female partner of a woman who conceives a child through artificial insemination is presumed to be the legal parent of the child. As the reasons underlying the application of the presumption in a heterosexual context, namely avoidance of legal disadvantage and giving effect to an intention to be a parent of the child, are equally applicable in a lesbian context, it is difficult to identify any reason why the presumption should not be extended.[6]

The Status of Children Act should apply to all ex-nuptial children irrespective of the sexuality of their parents. Whereas the ADA provides a remedy for children treated less favourably on the basis of the homosexuality of their parent, the Status of Children Act does not proactively mandate non-discriminatory treatment of ex-nuptial by declaring their rights in relation to dispositions of property to be unaffected by homosexuality of their parent(s). The Board has long been of the view that, in isolation, complaints-based systems are inadequate to achieve a non-discriminatory society. Legislation, which mandates equality in a proactive way, such as the Status of Children Act is also necessary.

The ADB recommends that the Status of Children Act is amended to provide that where a woman becomes pregnant by fertilisation procedures and is a de facto relationship with another woman, that woman is presumed to be the parent unless she has not consented to the insemination, although she is not the biological mother of the child.

We submit that this recommendation is consistent with the purpose of the Status of Children Act, which aims to provide an improved system for determining a child’s parentage. It is also consistent with the ADA, which prohibits discrimination on the ground of a person’s marital status or homosexuality, or the marital status or homosexuality of a person’s associate or relative.

Recommendation 1

That the Status of Children Act is amended to provide that where a woman becomes pregnant by fertilisation procedures and is in a de facto relationship with another woman, that woman is presumed to be the parent unless she has not consented to the insemination, although she is not the biological mother of the child.

3.2 Section 14(2) irrebuttable presumption

The ADB understands that it is common for single women, both heterosexual and lesbian, and lesbians couples to enter into arrangements whereby men known to them donate sperm to enable the woman or the couple to have a child. In some cases, such arrangements are entered in to by gay men to enable them to father a child and actively participate in parenting the child. Fertilisation procedures in such circumstances occur in clinic and domestic settings. Although the fertilisation procedures as defined in the Status of Children Act may not have contemplated such procedures occurring outside the clinic settings, it appears that the definition in s.3 would cover such procedures.

The role of men who donate their sperm in such circumstances may vary significantly from no involvement with the child through to an active parenting role. Accordingly, it is not appropriate that an irrebuttable presumption that a man is not to the father of a child always apply where a woman becomes pregnant by means of a fertilisation procedure using sperm obtained from a man who is not her partner.

The ADB is concerned s.14(2) does not recognise the fathering role that some men do play in relation to children conceived through fertilisation procedures. As a result the Status of Children Act does not enable appropriate recognition of the child’s parentage. In essence, the Status of Children Act is premised upon a two-parent model, which no longer reflects the diversity of family life. In the ADB’s view there is a need to examine how the Status of Children Act can better recognise the parentage configurations, which do not neatly fit the two parent model.

For example, we have recommended that where a woman becomes pregnant by fertilisation procedures and is a de facto relationship with another woman, that woman is presumed to be the parent unless she has not consent to the insemination, although she is not the biological mother of the child (see recommendation 1 above). In our view, there are also circumstances where the child’s donor father should be recognised. In some circumstances this may mean acknowledging that a child has two mothers and a father. Such an outcome simply reflects the reality of wider range of family forms, which exist in society.

Ensuring that the Status of Children Act adequately recognises the complexities of non-traditional families is made difficult for a number of reasons. First, there is a need for a degree of flexibility to reflect the choices people are making when negotiating sperm donations. For example, in some instances both gay and heterosexual men are agreeing to donate sperm to single women, both heterosexual and gay, or to lesbians couples solely for the purpose of enabling their friend(s) to have a child. Such men may not want any legal or social parenting obligations. On the other hand some men, particularly gay men, are choosing to donate sperm to a woman or women they know so that they can be an active parent.

Secondly, the ADB also recognises that there may be circumstances where a couple may favour the irrebuttable presumption provided by s.14(2). For example, in the case where heterosexual couple wish to have a child and the man is infertile, they may arrange for the man’s brother to donate sperm for fertilisation procedures. In such circumstances it is likely that the couple may want the certainty that s.14(2) provides.

Even if more flexible options for recognition of multi-parent families where the donor is known were provided for, heterosexual or lesbian couples who want to ensure that the sperm donor is not involved in the life of their child could continue to do so. Accessing sperm without knowing the donor in the clinic setting would be continue to be an option and the irrebuttable presumption in s.14(2) would apply.

The Status of Children Act and its predecessor, the Children (Equality of Status) Act 1976, reflect changing attitudes to towards children born to de facto heterosexual couples and the need to reduce the social stigma and legal inequities which had favoured children born to married couples. We are now at the point where the Status of Children Act needs to respond to the diversity of family life in Australia as it actually exists, not as it once may have been, or as some may wish it to be. As the Hon Chief Justice Alastair Nicholson has stated:

It is precisely this diversity of individuals and families and their circumstances, which presents in family law matters every day. Sexual orientation is no basis upon which to make assumptions about the quality of an individual’s relationships or the parenting capacities of a person.[7]

The trend towards non-traditional families is one, which is likely to continue as we see greater social acceptance of such families. Recognition of the parentage of children form non-traditional families can play an vital role in reducing the social stigma for such children. The Status of Children Act can and ought to play a role in recognising and reflecting the diversity of family life in Australia.

Recommendation 2

That the consideration should be given to options for recognition of parentage where a woman becomes pregnant by means of a fertilisation procedure using sperm obtained from a man known to her and who is not her partner.

4. Parentage testing

There is increasingly awareness of the sensitivity of genetic information as the use of genetic testing becomes more common. The use of genetic testing raises a range of complex issues such as concerns about discrimination on the basis of a person’s genetic make-up and also the ethical and privacy implications of genetic testing.

The Australian Law Reform Commission (ALRC) and Australian Health Ethics Committee (AHEC) currently have a reference to examine the protection of human genetic information. The ALRC and AHEC Issues Paper considers the use of DNA evidence in establishing paternity.[8] We have considered the issues raised in the Issues Paper to determine whether there is a need for amendments to the Status of Children Act or regulations to respond to issues of concern.

The focus of the concerns in relation to the use of DNA evidence in establishing paternity raised in the Issues Paper relate to “matters of ethics, informed consent, quality control, post-test counselling, and privacy in relation to `mail order paternity testing' by private laboratories.”[9] The question posed by the Issues paper is:

Should genetic testing to establish paternity be regulated so that it may be conducted only by accredited laboratories, or only under the supervision of the courts, in order to meet concerns regarding informed consent, counselling and quality control?

The Status of Children Act or regulations already provide that testing is conducted only by accredited laboratories and with the supervision of the courts. The Status of Children Act,, in conjunction with the Status of Children Regulations 1998, provide that applications may be made to the Supreme Court for a declaration of parentage (s.21). In proceedings where the parentage of the child is an issue the Supreme Court may make an order requiring the parentage testing procedure to be carried out (s.26). Accordingly, there is no need for amendments to these provisions.

Theregulations in relation to testing procedures and reports for the purpose of establishing paternity provide that parentage testing can only be conducted by an accredited laboratory (reg. 7) and body samples taken by a prescribed person under the regulations (reg.22). The Act provides that it is an offence to take a body sample purportedly for the purpose of giving effect to a parentage testing order unless the person is qualified person (s.33).

5. Issues outside the ambit of Status of Children Act 1996

The NSW LRC’s in its review of the Property (Relationships) Act 1984 also considers in detail the lack of legal recognition of functional parent/child relationships[10] and the impact of this on both parents and children.[11] This lack of recognition of functional parent/child relationship can occur regardless of whether the biological parent and a non-biological parent of the child are in an opposite sex or same sex relationship. The LRC does acknowledge that particular attention needs to be given to functional parent/child relationships arising in a same sex relationship because this is an area of particular concern.[12]

We do not propose to increase the range of parentage presumption provided under the Status of Children Act 1996 to address this deficiencies. In the ADB’s view these issues are better addressed in the context of the LRC’s review, where broader legislative reform can be recommended.

6. Conclusions

It is the ADB’s view that strong legislative statements which support the right of ex-nuptial children not be disadvantaged as a consequence of the marital status or homosexuality of their parent(s) continues to have relevance today. As this submission has outlined, there is a need for reform of the Status of Children Act to ensure consistency is achieving this for all ex-nuptial children.

1

ADB submission, June 2002

[1] Section 54 provides that an act which would otherwise be unlawful will not be unlawful if it was necessary in order to comply with any other Act, whether passed before or after the ADA.

[2]NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform, Report 20, Parliamentary Paper 127, 1999 at pages 77, 82, 83.

[3]Ibid at page 82.

[4]NSW Law Reform Commission, Discussion Paper 44 - Review of the Property (Relationships) Act 1984, April 2002, at paragraph 1.15.

[5]Ibid, at paragraphs 3.15 - 3.16 and 3.91 - 3.98.

[6]Ibid, at paragraphs 3.97 - 3.98.

[7] The Hon Chief Justice Alastair Nicholson, The Changing Concept of the Family - The Significance of Recognition and Protection, Australian Journal of Family Law, 1997 Volume 11, at page 19.

[8] Australian Law Reform Commission (ALRC) and Australian Health Ethics Committee (AHEC), Protection of the Human Genetic Information, Issues Paper 26, October 2001, pages 414 - 415.

[9]Ibid, at paragraph 14.63, page 415.

[10] functional parent/ child relationships are defined as “a person who acts as a child’s parent but is not his/her biological, adoptive or presumptive parent.

[11]NSW Law Reform Commission, Discussion Paper 44 - Review of the Property (Relationships) Act 1984, April 2002, Chapter 3.

[12]Ibid, at paragraph 3.3.