The Attorney-General’s Office has published the Family Law Council report on Parentage and the Family Law Act, which examines surrogacy issues and Indigenous custom.
The report considers whether the outcome of a family law matter is affected by the way in which a child’s family is formed and who is considered to be a ‘parent’ under the Act.
It also reflects a concern to ensure that as far as possible children are not disadvantaged by the nature of their family or the way in which it was formed.
The Council report made 19 recommendations, including a general recommendation that the Australian Government introduce a federal Status of Children Act which would provide a clear statement of parentage laws for the purposes of all the laws of the Commonwealth.
The Council also believed that a more inclusive definition of parent was needed in theFamily Law Act.
The Council identified two specific areas of inconsistency between the Family Law Act and State and Territory laws dealing with parentage.
The first issue was the inconsistency between the definition of parents in the Family Law Act and the more inclusive definition of parents in State and Territory statutes that define parents to include people recognised as parents according to Aboriginal and Torres Strait Islander tradition or custom.
The second area was the inconsistency in approach to the parental status of known donors of genetic material where single women had children as a result of assisted reproductive technologies.
The Council said the most appropriate course to assist the Family Courts in the meantime would be to address the concerns that underpinned current State and Territory surrogacy laws.
This would include concerns about exploitation of surrogates and the protection of children’s identity rights, whilst also recognising the need to ensure that children born of illegal surrogacy arrangements were not disadvantaged by a lack of legal status.
The Council said the family courts should have a power to affect a post-birth transfer of parentage from the surrogate (and her partner) to the intended parents where certain safeguards had been met.
It said the grant of citizenship by descent did not mean the intending parents were considered legal parents in Australian law and this meant these children were vulnerable if there is no legally-recognised parent in Australia.
Many intending parents did not seek parenting orders when they returned to Australia. There had been only 19 reported cases dealing with overseas surrogacy arrangements in the Family Courts, while there had been many hundreds of children born to Australian couples through overseas surrogacy arrangements.
This meant that the great majority of children born as a result of surrogacy arrangements overseas did not have the legal protection of having a legally-recognised parent in Australia.
The Council said it was in the best interests of children born from international surrogacy arrangements that a child had at least one parent in Australia who was legally recognised as a parent.
It believed a process of parentage transfer, subject to judicial oversight, was the preferred option pending an international regulatory response to the issue of overseas surrogacy arrangements.
The Council recommended that the Government enact a separate piece of legislation to provide for legal recognition of Torres Strait Islander customary adoption.
The report can be found at this PS News link.