In Germany, there’s currently controversy around the comments made by the country’s LGBTQ Commissioner, Sven Lehmann, in relation to modern family formation and the need to update laws on parenthood. Meanwhile over in the US, six states have already enacted laws to allow a court to recognise more than two parents for a child, with experts there saying many other states are headed in the same direction. And here in Australia, back in 2014, our Family Law Council made similar recommendations to the then-Attorney-General George Brandis. So are multi-parent families the future of parenthood?
As in many Western countries including Australia, there is ongoing debate over the need to modernise family law to reflect current realities in family formation. Lehmann says: “Family is as diverse as life itself. We want to give more protection to these family constellations and make sure that they can get legal recognition.”
Conservative politicians have condemned Lehmann’s comments as a “dangerous attack on the family” and of even threatening the very foundations of society. But Lehmann says that a third of German children are being raised in unconventional family situations.
Modern Western families are no longer nuclear, but nor have they been for decades. Families today can be complex and include a mix of genetic, gestational, social and ‘intending’ parents (those not genetically related to the children). Many modern children have ‘patchwork’ or ‘rainbow’ families. (Patchwork families, aka stepfamilies, have at least one parent with a child from a previous relationship, while rainbow families have at least one parent who is LGBTQI.) And then there are the factors of more widespread assisted reproduction and surrogacy.
In reality, kids can consider numerous adults as their ‘parents’. But this often leaves them in legal limbo. For example, in Germany, if a lesbian couple has a child, only the biological mother is automatically recognised as the parent. Her partner has to formally adopt the child in order to obtain parental rights. Progressives argue the planned reform would extend parenthood to each woman, as well as allowing the child’s biological father to be identified as a third parent.
This differs from the ideas put forward here in Australia, where individuals providing genetic material (sperm and egg donors) and surrogates are not considered legal parents. However, the law in Australia is quite vague and therefore requires clarification. Even though commercial surrogacy is not permissible in Australia, it still occurs and this leaves the children with “no secure legal relationship” and uncertainty over parentage. As such, the Family Law Council suggested that “Australian parents who use their own embryos, sperm or eggs in surrogacy, should be recognised as the legal parents of surrogate children”. The Council recommended the introduction of a Status of Children Act and amending the Family Law Act. This would guide the family courts in matters involving parenthood via IVF and surrogacy, whereas they currently have no way of recognising intended parents born via a commercial surrogacy arrangement.
It takes a community…
Progressives in Germany have come up with the concept of a “community of responsibility”. Under this, unrelated adults or those not romantically involved would be able to enter legally binding family-like relationships. In such relationships, the members might be afforded rights traditionally given to spouses, like the ability to access another adult’s medical information.
Differences in ‘custody’ concepts
Unlike in Australia, in Germany there exists the concept of “minor custody” (kleines sorgerecht) which is a form of legal recognition giving stepmothers and stepfathers certain rights. Experts say Lehmann’s ideas could potentially also take this form. This might be something for Australian family law reform to consider as well.
The importance of legal recognition
Critics express fears that children will be “torn between multiple authority figures and multiple households”. They bemoan the unknowns that might exist if multi-parent families are “normalised”. But the whole idea is in the children’s best interests. It’s to give children more stability and protect the parent-child relationships that exist whether Conservatives approve of them or not.
And it isn’t just about acceptance, it’s also about the day-to-day realities, such as being denied benefits (for example, health insurance in the US). There’s also the risk of permanent severance of the relationship if there is a custody dispute or a legal parent dies.
Where to now?
A decade ago the Family Law Council said that scope for recognition of more than two parents should “reflect the social reality” of the family. It recommended that the word “parent” be changed in court orders, with a term like “parent and other significant adults” being used instead. It was also recommended that the definition of “parent” be broadened to cover the needs of indigenous children whose aunts, uncles or grandparents are raising them.
After the Council reported to then-Attorney General George Brandis in 2014, he said he would respond in due course, however it does not appear that this ever occurred. Even with the various family law inquiries that have taken place since, it’s also not clear whether any of the Family Law Council’s recommendations will be put in place.
But it’s hopeful that eventually, family law systems around the world will implement “functional parent doctrines”, aka laws that allow courts to treat a person as a parent, even if the person is not the child’s biological or adoptive parent.
For assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.