Modern families have become so complex that some children consider several adults to be their “parents’’, the council concludes in a 210-page report released by Attorney-General George Brandis yesterday.
“The use of reproductive technologies and surrogacy to create families has also increased the number of potential parents that a child may have, including a mix of genetic, gestational, social and intending parents,’’ the report states.
“The law should provide scope for the recognition of more than two people to have parental responsibility for a child where that reflects the social reality of that family.’’
The council recommends that when a Family Court judge makes parenting orders, the word “parent’’ be substituted with a term such as “parent and other significant adults’’.
Custody should be granted to “more than two persons where that supports the child’s best interest’’.
The government’s advisory council calls for commonwealth legislation to clarify that sperm donors, egg donors or surrogate mothers are not legal “parents’’.
It recommends the government introduce a status of children act, to help the Family Court determine the parentage of children born through IVF and surrogacy.
The Family Law Act should be changed to “clarify that donors of genetic material are not legal parents’’, it says.
Australian parents who use their own embryos, sperm or eggs in surrogacy, however, should be recognised as the legal parents of surrogate children.
The report reveals that hundreds of Australian children born to surrogate women overseas now have “no secure legal relationship” to the genetic parents who are raising them in Australia.
“There is currently no capacity for the family courts to recognise or accord parental status to intended parents where children are born as a result of a commercial surrogacy arrangement,’’ the report says.
“Council is conscious that the number of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically in the past several years, despite the existence of Australian laws prohibiting such arrangements.
“As a consequence, it would seem that a large number of young children are growing up in Australia without any secure legal relationship to the parents who are raising them.”
The council recommends the Family Court should be given new powers to transfer legal parentage from the surrogate parents.
A judge would need to be satisfied the surrogate mother had given her “full and prior informed consent’’, as some surrogate mothers overseas have used a thumbprint to “sign” a contract.
The council warns that Australian parents are relying on DNA tests to prove a surrogate child is a “citizen by descent’’, apply for a passport and bring the child back to Australia. However, “the grant of citizenship by descent does not mean the intending parents are considered legal parents in Australian law’’.
The council also supports a wider definition of “parent” in indigenous communities, to embrace aunts, uncles or grandparents raising children.
It calls for legalisation of the customary adoption practice of Torres Strait Islanders, known as kupai omasker.
“Customary adoption is a widespread practice within Torres Strait Islander communities,’’ the report says. “It is used to maintain inheritance of traditional land, to ensure that family members who cannot have children due to infertility are able to raise a child, and to strengthen alliances between families.”
Mr Brandis said the government would respond to the recommendations “in due course’’.