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Parliament of South Australia
Inquiry into Same-Sex Parenting
THIRTY SECOND REPORT OF THE SOCIAL DEVELOPMENT COMMITTEE
Laid on the Table of the Legislative Council, and ordered to be printed 17 May 2011
FIRST SESSION FIFTY-SECOND PARLIAMENT Social Development Committee Parliament House North Terrace Adelaide SA 5000
Phone: 08 8237 9416 Fax: 08 8231 9630 E-mail: [email protected] TABLE OF CONTENTS
ESTABLISHMENT AND COMPOSITION OF THE COMMITTEE...... I FUNCTIONS OF THE COMMITTEE ...... III TERMS OF REFERENCE ...... V EXECUTIVE SUMMARY...... 1 RECOMMENDATIONS...... 5
BACKGROUND...... 9 METHODOLOGY ...... 9 SCOPE ...... 9 REPORT STRUCTURE ...... 10 SECTION ONE: OVERVIEW...... 13
RESEARCH LITERATURE...... 13 PREVIOUS REPORTS ...... 14 KEY ARGUMENTS OPPOSING SAME-SEX PARENTING ...... 17 KEY ARGUMENTS IN SUPPORT OF SAME-SEX PARENTING ...... 21 AVAILABLE DATA ON SAME-SEX PARENTING ...... 23 SECTION TWO: EXPERIENCES & LEGAL STATUS...... 27
THE EXPERIENCES OF SAME-SEX PARENTS AND THEIR CHILDREN...... 27 THE LEGAL STATUS OF CHILDREN AND NON-BIOLOGICAL PARENTS ...... 31 SECTION THREE: CURRENT LAWS AND THEIR EFFECT...... 43
ASSISTED REPRODUCTIVE TECHNOLOGY...... 43 SELF-INSEMINATION: POTENTIAL HEALTH RISKS...... 47 ADOPTION...... 51 FOSTER CARING...... 54 SURROGACY...... 58 SECTION FOUR: JURISDICTIONAL COMPARISONS...... 63
LACKOF CONSISTENCY WITH COMMONWEALTH LEGISLATION ...... 63 OVERSEAS JURISDICTIONS ...... 66 CONCLUSION ...... 67 APPENDIX A: STUDIES OF CHILDREN RAISED BY LESBIAN AND GAY PARENTS 1986- 2006 ...... 71 APPENDIX B: BIRTH CERTIFICATE EXAMPLE...... 87 APPENDIX C: FAMILY RELATIONSHIPS (SAME SEX PARENTING — RULES RELATING TO PARENTAGE) AMENDMENT BILL 2011...... 89 APPENDIX D: ASSISTED REPRODUCTIVE TREATMENT (ASSISTANCE FOR LESBIANS AND SINGLE WOMEN) AMENDMENT BILL 2011...... 95 APPENDIX E: ADOPTION (SAME SEX PARENTING) AMENDMENT BILL 2011...... 97 APPENDIX F: FAMILY RELATIONSHIPS (SAME SEX PARENTING — SURROGACY) AMENDMENT BILL 2011 ...... 99 LIST OF WITNESSES...... 103 LIST OF SUBMISSIONS...... 105
ESTABLISHMENT AND COMPOSITION OF THE COMMITTEE
The Social Development Committee is established pursuant to Sections 13, 14 and 15 of the Parliamentary Committees Act 1991. Its eight Members are drawn equally from the Legislative Council and the House of Assembly:
Hon. Ian Hunter MLC (Presiding Member) Hon. Dennis Hood MLC Hon. Jing Lee MLC Hon. Kelly Vincent MLC Ms Frances Bedford MP Mr David Pisoni MP Mr Alan Sibbons MP Hon. Dr Bob Such MP
The Committee is assisted by:
Ms Robyn Schutte, Committee Secretary Ms Sue Markotić, Research Officer Ms Cynthia Gray, Administrative Officer (0.3 FTE)
Social Development Committee of the South Australian Parliament i ii Social Development Committee of the South Australian Parliament FUNCTIONS OF THE COMMITTEE
The functions of the Social Development Committee are set out in Section 15 of the Parliamentary Committees Act 1991 and charge the Committee
(a) to inquire into, consider and report on such of the following matters as are referred to it under this Act:
(i) any matter concerned with the health, welfare or education of the people of the State;
(ii) any matter concerned with occupational safety or industrial relations;
(iii) any matter concerned with the arts, recreation or sport or the cultural or physical development of the people of the State;
(iv) any matter concerned with the quality of life of communities, families or individuals in the State or how that quality of life might be improved;
(b) to perform such other functions as are imposed on the Committee under this or any other Act or by resolution of both Houses.
Social Development Committee of the South Australian Parliament iii iv Social Development Committee of the South Australian Parliament TERMS OF REFERENCE
The terms of reference for this Inquiry are as follows:
That the Social Development Committee inquire into and report to Parliament on issues relating to same-sex parenting with particular reference to:
a. the number of same-sex couples and same-sex attracted individuals living in South Australia who are parents or aspire to parenthood; b. the experiences of same-sex parents and their children and the social challenges faced by them; c. the legal status of children born to same-sex parents and issues relating to the legal recognition of non-biological parents; d. the current laws that govern eligibility for adoption, assisted reproductive technology (including in-vitro fertilisation), surrogacy and foster caring in South Australia and their impact on same-sex couples; e. the relationship between state and federal legislation in recognising same-sex parents and their children; f. the experience and regulation of interstate and overseas jurisdictions in addressing issues relating to same-sex parents and their children; g. the possible measures that could be introduced to better deal with matters pertaining to same-sex parents and what, if any, legal complexities might arise from the consideration of such changes; and h. any other related matters.
Social Development Committee of the South Australian Parliament v vi Social Development Committee of the South Australian Parliament EXECUTIVE SUMMARY
On 24 May 2010, the Social Development Committee resolved to inquire into and report on same-sex parenting and, in particular, how current South Australian laws impact on same-sex parents and their children.
The Inquiry generated a significant amount of community interest. In total, 680 written submissions were received. Many submissions – both in support of, and in opposition to, same-sex parenting – were part of coordinated campaigns by key interest groups. As such, the Committee received a large number of submissions which were identical or variations of form letters. While the Committee accepted all the submissions it received, it placed greater emphasis on those submissions that addressed the Inquiry’s terms of reference.
The Committee did not receive any reliable data on the number of same-sex couples with children living in South Australia. Indeed, the Committee heard that what data does exist should be treated with some caution and is likely to underestimate the actual number. Evidence suggests that some people may be reluctant to identify that they are in a same sex partnership due to community prejudice and discrimination. Notwithstanding the difficulties in data collection, the Committee commenced its Inquiry on the premise that some South Australian same-sex couples already have children and others are planning to do so.
The Committee heard directly from a number of same-sex couples who have children. Some children who reside within these families were born of a previous heterosexual relationship, others through assisted reproductive treatment services or the use of donor sperm in private arrangements. Over the course of the Inquiry, the Committee has primarily focused its attention on whether these children have the same legal protections and rights as other children.
The Committee heard that while same-sex parents face similar challenges to other families, the lack of legal recognition of the non-biological parent creates additional difficulties. This was one of the main areas of concern raised during the Inquiry.
At present, under South Australian law, if a married woman becomes pregnant through the use of assisted reproductive treatment with donor sperm, her husband is treated in law as the father of the child and his name is placed on the child’s birth certificate. This is despite the fact that he does not have any biological connection to the child. In other words, in the context of a heterosexual relationship, the law recognises that ‘biology’ is not necessarily a key determinant of parental status.
There is no similar presumption of parentage for same-sex co-parents under South Australian law. The partner of a lesbian woman who has become pregnant through the use of donor sperm is not recognised in law as a parent even though she may be in a committed long-term relationship with her partner, consented to her partner having the procedure and has expressed clear intention to co-parent the child. South Australian law does not permit the woman’s name to be listed on the child’s birth certificate. On this matter, South Australia lags behind every other Australian jurisdiction.
1 Social Development Committee of the South Australian Parliament The Committee heard that the lack of legal recognition of non-biological parents can create all sorts of difficulties ranging from minor inconveniences to major issues that may adversely affect the welfare of the child. For example, the same-sex co-parent is not easily able to enrol the child at school or approve school excursions. Nor can they legally give permission for the child to be treated in a medical emergency. Numerous witnesses told the Inquiry that this lack of legal protection, and the emotional instability that accompanies it, is likely to be compounded in the event of the death of the biological parent. The Committee heard that current South Australian law puts children born to same-sex parents in an unequal and unsatisfactory position when compared to children born to heterosexual parents. It also places them well behind children born to same-sex couples in all other Australian jurisdictions.
The Committee was told that one of the only ways a same-sex co-parent can establish a legal relationship with their child is by obtaining a Family Court parenting order. However, obtaining such an order can be a costly and complicated process. For those same-sex couples that have used parenting orders to provide some legal protection, evidence suggests that this protection is not comprehensive. Moreover, the Committee heard that parenting orders are generally used when couples separate and there is conflict in the relationship about where and with whom the child should reside. As such, parenting orders were neither intended nor designed to be used by couples in stable and committed relationships.
While some witnesses argued that the non-biological same-sex parent should not have their name placed on a child’s birth certificate because this would introduce inaccuracies to birth certificates, the Committee does not accept this argument. As indicated earlier, South Australian law already recognises that a biological link to a child is not a prerequisite for legal parenthood.
The Committee has called on the government to introduce legislation, as a matter of urgency, to amend current parentage laws to recognise the female partner of a birth mother as the child’s parent.1 Such a change would bring South Australia in line with other Australian jurisdictions and prevent the need for lesbian couples to travel to other jurisdictions to give birth in order to have the co-parent legally recognised and placed on the child's birth certificate. In addition, it would help resolve inconsistencies in federal and state legislation relating to legal parentage which, at present, mean that in the event of a relationship breakdown, a non-biological same-sex parent is liable to pay child support at the federal level but remain without parental legal status at the state level.
Another issue to emerge in the course of the Inquiry concerns eligibility criteria for access to assisted reproductive treatment. In South Australia, laws governing access to assisted reproductive treatment require that a person must have a diagnosis of medical infertility. To date, infertility has been interpreted in a narrow sense within a medical framework. This interpretation has significant implications for same-sex couples in that it specifically excludes those couples who may not have any medical impediment to achieve pregnancy but whose sexual orientation prevents them from conceiving without some form of assisted reproductive treatment.
1 The Committee notes that during the course of the Inquiry, the Hon. Tammy Franks MLC introduced the Family Relationships (Parentage) Amendment Bill 2010. The Bill aims to provide better legal protection to children born to same-sex couples by enabling two women in a same sex relationship to be recorded as parents on the birth certificate of their child. The Bill was passed in the Legislative Council on Wednesday 24 November 2010. It was still before the House of Assembly at the time that this report was being finalised. 2 Social Development Committee of the South Australian Parliament The Committee heard that some lesbian couples who have been denied access to assisted reproductive treatment in South Australia have travelled to other jurisdictions where laws are far less restrictive, often incurring unnecessary expense and stress.
The Committee also heard that limited access to assisted reproductive treatment in South Australia may mean that some women will choose to self-inseminate outside of regulated clinical settings. The Committee notes that this may potentially place a woman and her child at risk of disease because the donor is not thoroughly screened for genetic diseases or sexually transmitted infections. Furthermore, the use of self- insemination in private arrangements may mean that a child born through such arrangements will be denied information about the full circumstances of their birth and genetic background.
On this issue, the Committee has recommended that current legislation governing assisted reproductive treatment be amended to incorporate a broadening of the criteria used to define infertility, consistent with provisions contained in Victorian legislation. The Committee has also called on the government to improve the capacity for children conceived through the use of donor sperm in private arrangements to access information about their genetic heritage.
The Committee received very little evidence in relation to surrogacy. What evidence was received, however, suggests that surrogacy is not an intervention that will be widely used. The Committee notes that in November 2009, the South Australia Parliament passed the Statutes Amendment (Surrogacy) Act 2009 legalising altruistic gestational surrogacy in South Australia. This Act permits altruistic gestational surrogacy in South Australia but only to those who are ‘legally married’ or in a heterosexual de facto relationship for at least three years. The Committee does not support the restriction of surrogacy based on this discriminatory criteria and has recommended the law be amended to allow same-sex couples access to this medical intervention subject to proper assessment.
In relation to adoption laws, same-sex couples are eligible to adopt a child in Western Australia, New South Wales, the Australian Capital Territory and, in limited circumstances, Tasmania. In South Australia, however, same-sex couples are prohibited from adopting children yet they are able to foster children. The Committee notes the inherent double standard of current South Australian legislation that, on the one hand, deems same-sex couples as suitable parents to foster children—many of whom have come from troubled and difficult circumstances—and on the other, denies them the right to adopt a child. The Committee has recommended that same-sex couples should be allowed to adopt, subject to the same stringent eligibility criteria that apply to opposite sex couples.
Contrary to some evidence put before the Inquiry, the Committee does not accept that affording same-sex couples the same legal rights as heterosexual couples will lead to the social disintegration of the family unit. The Committee considers that attaching a narrow boundary to the definition of ‘family’ serves only to exclude a significant proportion of the South Australian community. The Committee recognises that family units are not fixed entities; they have changed over the years and take on different forms in different social and cultural settings. Many children are born into, or live in, single parent families, blended families or multi-generational families.
3 Social Development Committee of the South Australian Parliament The Committee heard no compelling evidence that children are disadvantaged by being raised by same-sex parents or that same-sex parents are unfit to look after children. On the contrary, evidence presented by same-sex parents suggests they aspire and strive for their children to be well-adjusted, healthy and productive members of the broader community. The Committee has formed the view that how well children develop is largely influenced by the level of cohesion within a family and the support and care children receive rather than the particular formation that a family unit takes.
The Committee is disappointed that, despite repeated requests, the Attorney General's Department did not provide a written submission nor give oral evidence to the Inquiry. This lack of response hindered the Committee in gaining an overview of the key legal issues relating to same-sex parenting during the early stages of the Inquiry.
The Committee is also disappointed that the State's Social Inclusion Unit declined an invitation to provide a written submission to the Inquiry arguing that same-sex parenting issues do not form part of its current areas of work. The Committee notes that many of the issues raised during the Inquiry highlighted the disadvantageous position of same-sex parents and their children and emphasised their legal exclusion and social vulnerability.
The Committee considers that all children, irrespective of the family units into which they are born or live, deserve the full protection of the law. The Committee has spent many months hearing evidence from a wide range of individuals and groups. It has carefully considered the arguments put forward in relation to this Inquiry. In framing its recommendations, the Committee has taken care to put forward changes that it considers are necessary to better protect children born into families led by same-sex couples. To ensure that the required changes to current laws are expedited, the Committee has, in accordance with its legislative functions and powers, instructed the Office of Parliamentary Counsel to draft legislation in line with its recommendations (see Appendices C, D, E and F).
The Committee thanks all those organisations and individuals who made submissions and gave evidence to the Inquiry. In particular, it thanks those couples who provided first-hand information about their day-to-day experiences and shared their deeply personal stories with the Committee.
4 Social Development Committee of the South Australian Parliament RECOMMENDATIONS
RECOMMENDATION 1
Legal Parentage The Committee recommends that, as a matter of urgency, the Attorney-General introduce legislation to amend the Family Relationships Act 1975 (SA) to:
allow the female partner (non-birth mother) of a woman (birth mother) who has undergone a fertilisation procedure to be legally recognised as the parent of a child born through such a procedure, providing that the partner consented to the treatment by which the birth mother conceived the child;
extend the presumption of parentage to the non-birth mother through the insertion of the gender neutral terms of ‘domestic partner’ and ‘co-parent’ into a number of the Act’s existing provisions;
ensure the non-birth mother is able to be registered on the child’s birth certificate, by making any consequential amendments to any other relevant legislation; and
ensure the legislation is drafted so that it applies to children already born to such arrangements.
The Committee further recommends that appropriate training on the proposed changes and operation of the Act be provided to all persons and parties responsible for its administration.
RECOMMENDATION 2
Access to Assisted Reproductive Technology The Committee recommends that the Minister for Health introduce legislation to amend the Assisted Reproductive Treatment Act 1988 (SA) to remove barriers that preclude lesbian and/or single women from accessing assisted reproductive technology. The amendments should seek to broaden the meaning of ‘infertile’ by replacing sections 9(1)(c)(i) and (ii) of the Act with the following wording: “if, having regard to all of the circumstances of a particular woman, the woman would be unlikely to become pregnant other than by the use of assisted reproductive treatment;”.
RECOMMENDATION 3
Access to Screening and Counselling The Committee recommends that the Minister for Health ensure that women who make private arrangements to self-inseminate have ready access to proper screening and/or counselling services. The Committee further recommends that the Minister for Health ensure that such access is provided on condition that:
5 Social Development Committee of the South Australian Parliament all necessary donor identifying information is made available to the relevant accredited fertility clinic; and all information is properly recorded so that any child born as a result of self- insemination is able to access their genetic and biological history.
RECOMMENDATION 4
Adoption The Committee recommends that the Minister for Families and Communities introduce legislation to amend the Adoption Act 1988 (SA) to: extend eligibility for adoption to same-sex couples; and ensure that same-sex couples are subject to the same stringent eligibility criteria that apply to opposite sex couples.
RECOMMENDATION 5
Foster Care The Committee recommends that the Minister for Families and Communities take immediate steps to ensure that: all staff, both government and non-government, involved in placing children in foster care are aware that under the Family and Community Services Act 1972 (SA) same-sex couples are eligible to foster care; and assessment processes relating to foster care are implemented fairly and in a non-discriminatory manner.
RECOMMENDATION 6
Surrogacy The Committee recommends that the Attorney-General introduce legislation to amend the Statutes Amendment (Surrogacy) Act 2009 (SA) to extend eligibility for altruistic gestational surrogacy to same-sex couples and ensure that they are subject to the same stringent assessment criteria that apply to opposite sex couples.
6 Social Development Committee of the South Australian Parliament RECOMMENDATION 7
Education Awareness Strategy The Committee recommends that the Attorney-General, in collaboration with the Minister for Health and the Minister for Families and Communities, develop and implement an education strategy to raise awareness of the rights and obligations of those directly affected by any legislative changes relating to same- sex parenting.
Dissenting statement of the Hon Dennis Hood MLC I do not support same sex parenting and oppose any legislation allowing the practice in South Australia. I therefore do not agree with the recommendations contained in this report.
7 Social Development Committee of the South Australian Parliament 8 Social Development Committee of the South Australian Parliament BACKGROUND On 24 May 2010, the Social Development Committee resolved to inquire into and report on issues relating to same-sex parenting.
The motion to establish the Inquiry was moved by Mr David Pisoni MP, pursuant to Section 16 (1) (c) of the Parliamentary Committees Act 1991.2
METHODOLOGY The terms of reference of the Inquiry were advertised in The Advertiser and The Australian on Saturday 5 June 2010 and in Blaze on Friday 18 June 2010.
The Committee wrote directly to a number of individuals and organisations with a known interest in the subject matter inviting them to provide a submission. Details of the Inquiry were also placed on the Committee’s website.
As is the case with most inquiries of this nature, the Committee primarily drew upon the written submissions and oral evidence provided to address the issues contained in the terms of reference and to reach its final recommendations.
SCOPE The Committee commenced its Inquiry on the premise that a number of same-sex couples already have children and others are planning to do so. With that in mind, the Committee focused its attention on whether these children have the same legal protections and rights that are afforded to other South Australian children.
It is clear from the hundreds of submissions received that there are divergent views on the issue of same-sex parenting. While the Committee closely considered all the submissions it received, it has, in accordance with its responsibility, focused on those that addressed all, or at least some, of the Inquiry’s terms of reference.
Some submissions expressed anger at the Inquiry and questioned whether an examination into the experiences of same-sex parents and their children was warranted.
A number of witnesses misunderstood the focus of the Inquiry, perceiving it as an attempt by Parliament to promote or encourage same-sex parenting. Other witnesses saw the Inquiry as an opportunity to express their support for, or opposition to, same- sex marriage. The Committee notes that the Inquiry’s terms of reference do not mention same-sex marriage and any discussion of this matter would have taken the Inquiry well beyond its scope.
It should be noted that this report is not a comprehensive investigation of all the issues that formed part of the Inquiry’s terms of reference. Rather, it reflects the issues
2 The motion included the adoption of the terms of reference for the Inquiry. The proposed terms of reference had been jointly tabled earlier in the meeting by Mr David Pisoni MP and the Hon. Ian Hunter MLC and were adopted without modification. 9 Social Development Committee of the South Australian Parliament emphasised in the evidence received. For example, much of the discussion in this report is centred on issues relating to legal parentage and access to assisted reproductive treatment because these were the issues about which the Committee received most evidence. In contrast, the Committee received limited evidence in relation to the issues of surrogacy and same-sex parenting legislation in overseas jurisdictions.
The Committee notes the higher number of submissions received that have expressed opposition in relation to same-sex parenting. Nevertheless, the Committee’s key findings and recommendations are based on its careful consideration of all the evidence and not simply on the number of for and against submissions put before it.
REPORT STRUCTURE This report is divided into four main sections as follows:
. Section 1 provides a brief discussion on some of the key issues raised in evidence regarding academic literature on same-sex parents and reports on the outcomes of previous inquiries. It then provides an overview of the key arguments put forward in opposition to, and in support of, same-sex parenting. This section also considers some of the available data and the limitations of that information.
. Section 2 examines the experiences of same-sex parents living in South Australia. It also explores the legal status of children born to same-sex parents. This was one of the overriding concerns raised by same-sex parents and the one for which the Committee received most evidence.
. Section 3 concentrates on South Australian legislation governing assisted reproductive technology, adoption, foster care and surrogacy in relation to same-sex couples. It also provides a comparative overview of laws pertaining to same-sex couples in other Australian jurisdictions.
. Section 4 concentrates on two of the Inquiry's terms of reference, namely the relationship between state and federal legislation in recognising same-sex parents and their children and the experience of interstate and overseas jurisdictions. Only a cursory view of the laws regulating overseas jurisdictions is provided given that the Committee received very little evidence on this matter.
Throughout the report a number of case studies and direct quotations are presented which highlight the experiences of same-sex couples who have children. In some instances, certain information—including names—have been withheld or amended at the request of the party concerned. While some editorial changes have been made for the sake of clarity and brevity, these changes have not altered the substantive content.
The report contains six appendices. Appendix A provides a useful summary of the findings of studies, undertaken between 1986 and 2006, of children raised by same- sex parents. The information provided in this appendix is taken directly from the 2007 Victorian Law Reform Commission’s report: Assisted Reproductive Technology and Adoption: final report. Appendix B contains a mock example of a birth certificate 10 Social Development Committee of the South Australian Parliament provided by the Office of Regulatory Services, Australian Capital Territory. It illustrates how two same-sex parents are listed on a birth certificate in that jurisdiction. The remaining appendices (C, D, E, F) contain draft Bills prepared by the Office of Parliamentary Counsel, in accordance with the Committee’s instructions, and consistent with its recommendations.
Recommendations appear throughout the report and are listed in full as part of the Executive Summary. In some sections, the Committee makes its comments before setting out its recommendations.
11 Social Development Committee of the South Australian Parliament 12 Social Development Committee of the South Australian Parliament SECTION ONE: OVERVIEW
This section provides a brief discussion on some of the key issues raised in evidence regarding academic literature on same-sex parents and reports on the outcomes of previous inquiries. It then provides an overview of the key arguments put forward in opposition to, and in support of, same-sex parenting. This section also considers some of the available data and the limitations of that information.
RESEARCH LITERATURE The Committee received and was referred to a substantial body of literature and numerous social science studies relating to same-sex parents and their children.
In general, opponents of same-sex parenting drew the Committee’s attention to studies that concluded that same-sex parenting has a deleterious effect on children. In contrast, supporters of same-sex parenting highlighted studies that found that children who are parented by same-sex couples have comparable outcomes to those in families of heterosexual parents.
For example, in his written submission to the Inquiry, Mr Owen Davis stated: Mainstream research both here and overseas continues to show that children are better off physically and psychologically by being in families with their natural parents who are married … Current mainstream medical and scientific research continues to show the destructive behaviours and harmful consequences associated with a same-sex lifestyle.3
In a similar vein, the Richard Hillman Foundation argued that studies which show positive outcomes for children parented by same-sex couples are methodologically flawed: Proponents of same sex parenting assert that restrictions on parenting by homosexual couples should be lifted. In making such far-reaching, generation-changing assertions any responsible advocate would rely upon supporting evidence that is comprehensive and conclusive. However, the studies on which such claims are based are all gravely deficient.4
Conversely, in her evidence in support of same-sex parenting, Dr Sonia Allan, Adelaide Law School, University of Adelaide,5 referred to a number of studies that had examined the welfare of children raised in same-sex families, and commented: there is much research that supports [the position] that children reared in same-sex families have positive family experiences and outcomes.6 The Committee asked Dr Allan how she would respond to those opponents of same- sex parenting who argue that such research is biased. In her reply Dr Allan stressed
3 Mr Owen Davis, written submission, 2010, pages 3 and 9. 4 Richard Hillman Foundation, written submission, 2010, page 7. 5 Dr Allan was also speaking in support of Let’s Get Equal’s written submission. 6 Dr Sonia Allan, oral evidence, Committee Hansard, July 19, 2010, page 7. 13 Social Development Committee of the South Australian Parliament that ample studies have shown the positive outcomes for children with same-sex parents and that these studies have been peer reviewed and published in reputable international journals.7
The Committee notes the range of academic literature and research studies related to same sex parenting submitted to the Inquiry. While the Committee was not charged with undertaking a literature review in relation to this subject, it notes that some studies are more credible than others. While there may be cases where children born to same-sex parents have not fared well the Committee recognises that comparable cases of disadvantage can be found among children born to heterosexual parents.
The Committee considers that the State Government should ensure its policy development in relation to same-sex parenting is informed by the use of sound and credible research literature that has been peer reviewed by the wider academic community.
The Committee notes that much of the research literature referred to the Inquiry was previously examined and summarised by the Victorian Law Reform Commission in its report Assisted Reproductive Technology and Adoption: Final Report. In considering this research, the Commission concluded that there is sound evidence that children with same-sex parents have positive outcomes and are not disadvantaged in these family structures.8 The Committee supports the conclusion drawn by the Commission in its review of relevant research. It is satisfied that the quality of relationships within families is the key factor in determining outcomes for children and not the parent’s sexuality or marital status.
PREVIOUS REPORTS Over the past decade, a number of law reform commission reports and parliamentary inquiry reports have directly or indirectly considered issues related to same-sex couples and their children. The Committee has familiarised itself with some of these reports.
New South Wales Standing Committee on Law and Justice In July 2009, the New South Wales Parliamentary Standing Committee on Law and Justice tabled a report entitled: Adoption by same-sex couples.9
On the basis of the evidence received, the Committee concluded that: the best interests of children would be served by an end to discrimination against same-sex couples under adoption law…10 and continued: sexual orientation is not a valid basis on which to determine whether a person should be a parent, … all prospective parents are entitled to have their capacity to parent assessed on an equal basis … [The] current exclusion of same-sex couples is also discriminatory against their children … removing discrimination
7 Dr Sonia Allan, oral evidence, Committee Hansard, 2010, pages 7 and 8. 8 For further information and a list of the studies and outcomes summarised by the Victorian Law Reform Commission, refer to Appendix A. 9 Report tabled out of session, Legislative Council, Wednesday, 8 July 2009. 10 New South Wales Standing Committee on Law and Justice, Adoption by same-sex couples, 2009, page xv. 14 Social Development Committee of the South Australian Parliament from the Adoption Act would promote equality and send an important message to broader society about the positive contributions and capacities of gay and lesbian parents.11
The Committee recommended that the Adoption Act 2000 (NSW) be amended to allow same-sex couples to adopt.
Australian Human Rights and Equal Opportunity Commission In 2007, the Australian Human Rights and Equal Opportunity Commission published a report entitled Same-Sex: Same Entitlement that examined discrimination against same-sex couples in federal law.
The Commission’s report identified 58 federal laws that discriminated against same- sex couples in the area of financial and work-related entitlements and noted that many of these laws discriminated against children living in same-sex relationship families by failing to protect their best interests. In relation to laws governing adoption, the Commission observed that precluding same-sex couples from adoption may be a breach of Article 21 of the Convention on the Rights of the Child which requires that the best interests of a child are always paramount.12 The Commission noted that: a blanket ban on adoption by same-sex couples prevents an objective case-by-case assessment of what is in an individual child’s best interests.13
The Commission concluded that the restrictive nature of the definitions of ‘couple’ or ‘family’ found in many of the laws it had examined was the main cause of the discrimination against same-sex couples. After reviewing all of the evidence before it, the Commission made the following finding: There is no need to rewrite federal tax legislation, superannuation legislation, workers’ compensation legislation, employment legislation, veterans’ entitlements legislation or any other major area of federal financial entitlements. There just needs to be some changes to a few definitions at the front of each relevant piece of legislation.14
The Commission formally recommended that the federal government amend the discriminatory laws so as to ensure that: same-sex and opposite-sex couples enjoy the same financial and work-related entitlements [and] the best interests of children in same-sex and opposite-sex families are equally protected in the area of financial and work-related entitlements.15
11 New South Wales Standing Committee on Law and Justice, Adoption by same-sex couples, 2009, page xv. 12 Australian Human Rights Commission Report: Same-sex; Same Entitlement, 2007, page 51. 13 Australian Human Rights Commission Report: Same-sex; Same Entitlement, 2007, page 51. 14 Australian Human Rights Commission Report: Same-sex; Same Entitlement, 2007, page 10. 15 Australian Human Rights Commission Report: Same-sex; Same Entitlement, 2007, page 11. 15 Social Development Committee of the South Australian Parliament Victorian Law Reform Commission In 2004, the Victorian Law Reform Commission commenced an extensive consultation process on assisted reproductive technology. As part of this process, roundtable discussions and forums were held and three position papers covering key areas were published. The position papers focused on: access to assisted reproductive technology, adoption and the regulation of surrogacy arrangements. The Commission released its final report entitled Assisted Reproductive Technology & Adoption: Final Report in 2007. 16 The report contained 130 recommendations including that: requirements that restrict access to assisted reproduction treatment to heterosexual married or de facto couples be removed; the definition of infertility be broadened to include social infertility; adoption law be amended to allow same-sex couples to adopt under existing access criteria; the law recognise the female partner of a birth mother as the child’s parent; and surrogacy be regulated and not restricted to heterosexual married couples.
New South Wales Law Reform Commission In June 2006, the New South Wales Law Reform Commission released a report entitled: Relationships.17 The report examined a range of legal issues related to property rights and parenting with a specific focus on same-sex couples.
On the issue of whether the presumption of parentage should extend to co-mothers, the Commission stated that in its view: there is no justification for excluding co-mothers from the Status of Children Act 1996 (NSW) parentage presumptions. The legal disadvantage suffered by children who are born within a lesbian relationship and their co-mothers constitutes a compelling justification for prompt legislative amendment. In addition, the emotional repercussions of non-recognition of the parent/child relationships should not be ignored.18
Among other things, the Commission recommended that: the lesbian co-mother of a child conceived by artificial insemination should be deemed the legal parent of that child;19 and federal legislation relating to family law should be amended by the inclusion of gender neutral terminology
16 Refer to Victorian Law Reform Commission publications at www.lawreform.vic.gov.au/wps/wcm/connect/justlib/Law+Reform/Find/Publications/ 17 Refer to New South Wales Law Reform Commission website at www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_r113pdf 18 New South Wales Law Reform Commission, Report 113 (Relationships) page 112. 19Recommendation 18, New South Wales Law Reform Commission, Report 113 (Relationships). 16 Social Development Committee of the South Australian Parliament so that an automatic child support duty is imposed on co- mothers.20
Tasmanian Law Reform Institute In May 2003, the Tasmanian Law Reform Institute released a report entitled: Adoption by same-sex couples.21 The publication of this report followed the earlier release of a discussion paper seeking feedback on, among other things, the merits of amending adoption legislation to include same-sex couples. While many of those who responded to the discussion paper expressed their opposition to adoption by same-sex couples, the Institute concluded that sexual orientation should not be used as a criterion to determine a person’s suitability to adopt.22
The Institute also concluded that to decide whether a couple can adopt of the basis of their sexuality was discriminatory and not in the best interests of children. It recommended changes to the Adoption Act 1988 (Tasmania) to permit a couple to apply for adoption irrespective of the gender or marital status of the partners making up the couple.23
On the issue of legal parentage, the Institute recommended changes to the Status of Children Act 1974 (Tasmania) to ‘apply the conclusive presumption of parenthood to the same-sex partner of a woman who, with her partner’s consent, conceives a child as the result of an artificial fertilisation procedure.’24
KEY ARGUMENTS OPPOSING SAME-SEX PARENTING Many of the opponents of same-sex parenting who made a written submission to the current Inquiry wrote of being ‘absolutely opposed’, ‘very distressed’ and ‘appalled’ that the Committee was examining issues relating to same-sex parents and their children,25 with one person stating that they could not ‘think of anything more disastrous’ for children than to be brought up by same-sex parents.26
The Committee received a number of submissions which referred to the Bible and cited scripture to substantiate the writer’s opposition to same-sex families. Overall, the submissions received from opponents of same-sex parenting contained a number of recurrent themes, namely:
. same-sex parenting is ‘morally wrong’ and ‘unnatural’; . same-sex partnerships represent a ‘threat’ to heterosexual marriage and ‘undermine the institution of the family’; . same-sex parenting will lead to the demise of a moral society; . same-sex couples are promiscuous and their relationships are only of a short term nature;
20 Recommendation 23, New South Wales Law Reform Commission, Report 113 (Relationships). 21 Tasmanian Law Reform Institute, Adoption by same-sex couples, Final Report No. 2, May 2003. 22 Tasmanian Law Reform Institute, Adoption by same-sex couples, Final Report No. 2, May 2003, pages 4 and 5. 23 As above, see Recommendation 1, page 6. 24 Tasmanian Law Reform Institute, Adoption by same-sex couples, Final Report No. 2, May 2003, page 7. 25 See, for example: Ian Hammond, written submission, 2010; Allison Abbott, written submission, 2010; and Ivan and Joan Hall, written submission, 2010. 26 B. Scholar, written submission, 2010, page 1. 17 Social Development Committee of the South Australian Parliament . children in same-sex families lack appropriate role models; and . children born into same-sex relationships will suffer psychological harm and experience sexual identity confusion.
The following statements typify those submitted to the Inquiry by opponents of same- sex parents: The Bible is clear that this is not part of God’s plan for male and female created in his image ... God has a plan for each of our lives and we are to have love and compassion for one another but I believe we do not have the right to change his plan for families.27 --- I strongly believe that parenting by a committed mother and father is in the best interests of a child. I am very concerned that a child in a same-sex parenting situation will not have access to both male and female role models, which in turn will affect his or her own parenting skills in the future, possibly with negative implications for the future of a stable society, based on family values.28 --- To hand children over to people who do not represent the natural order of a family is exposing them to psychological damage. It is also well documented that such 'relationships' are not stable nor even happy with violence and depression at a much higher level.29 --- [Same-sex parents] are unqualified, unsuitable and incapable of being proper parents … [and] it would be irresponsible, inappropriate and totally unacceptable to introduce legislation.30 --- Nature did not intend children to be raised by same-sex couples.31
In a number of other submissions, opposition to the legal recognition of same-sex parents was based on the grounds that it would legitimise homosexuality and/or undermine the notion of ‘family’. For example: Two people of the same-sex who choose to live in a sexual relationship do not have a 'right' to have a child. Is a legislated 'right' to have a child intended to be a badge of legitimacy for the homosexual lifestyle?…32 --- A family is the building block of a community, this building block has always been identified in Australia as mother-father-children (what gives us the right to change this definition?).33
27 Ms Ellen Pettingill, written submission, 2010, page1. 28 Mrs Susanne Cook, written submission 2010, page 1. 29 Ms Louise Zollo and family, written submission, 2010, page 1. 30 Mr Peter Wyten, written submission, 2010, page 1. 31 Ms Allison Abbott, written submission, 2010, page 1. 32 Mr John Wynter, written submission, 2010, page 1. 33 Mr Scott Thomas, written submission, 2010, page 1. 18 Social Development Committee of the South Australian Parliament --- I do not believe in same-sex parenting in any shape or form. It is a parody of the established order … Many of these people do not stay together, nor are they faithful. This is bad for our society.34 --- Homosexual relationships are not normal and never have been, so same-sex relationships are not the best situations for the normal socialization of children.35
Some people argued that allowing same-sex parents to adopt or foster care puts the rights of the individual above that of the child and is potentially akin to child abuse: It is not in the best interests of families, children or the community at large to encourage same-sex parenting and associated aspects such as adoption, foster care and surrogacy. To do so would disadvantage children and be seen to be a form of child abuse, putting the rights of adults ahead of children’s. Rights have never been based on one's behaviour or lifestyle. One wonders why the best interests of children should be trumped by the special interests of same-sex couples seeking to be parents.36
And others:
Should [same-sex parenting] be allowed? Definitely not! … I believe this to be abuse to children by allowing this to occur … Please do not allow homosexual parenting to be legalised. There is no good that can come from this.37 --- To deny a child a parent of each gender is effectively child abuse.38 --- The children need to be our focus - not the so called rights of a minority group!39
Others sympathised with the desire of same-sex couples to have children but argued that this desire should be 'secondary to the welfare of any child they seek to parent.'40
The apparent selfishness of same-sex couples who pursue parenthood was a recurring theme: It is unfair to a child to deprive him/her of the opportunity to be raised by a man and woman …The child is not a guinea pig, or an object of social experiment. Thousands of years of experience show that the child has need of parents/foster parents for their care
34 Mrs Norma Trueman, written submission, 2010, page 1. 35 Mrs Lynette Geerling, written submission, 2010, page 1. 36 Mr Owen Davis, written submission, 2010, page 9. 37 Ms Gabriella Vikor, written submission, 2010, page 1. 38 Mr John Bennett, written submission, 2010, page 1. 39 Ms Leonie Voigt, written submission, 2010, page 1. 40 Mr John Foley, written submission, 2010, page 1. 19 Social Development Committee of the South Australian Parliament and well-being, certainly not for the unnatural modelling of two people of the same-sex sharing responsibility for their upbringing, formation and education.41 --- Prospective [same-sex] parents want children for their own pleasure, as if the children are toys, without considering the effects on children of being brought up by [them].42 --- Same-sex unions are self centred acts of personal gratification which are sterile.43 --- The only trouble is that in our society today, everyone wants what they want whether it hurts another or not. It is all about "me" …44 --- Those who adopt same-sex relationships do so knowing that they are unable to naturally reproduce so should not expect to be able to change that arrangement.45
Dr Robert Pollnitz, a consultant paediatrician, stated that his views have been shaped by 'over thirty years experience as a specialist doctor caring for children'. In a submission opposing same-sex parenting, Dr Pollnitz argued that: A baby being created or placed in our society should have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father. I believe that our children are too important to be treated as laboratory animals in a potentially dangerous social experiment.46
Another submission echoed similar sentiments: I think the children of this country deserve good parents and I think same-sex couples are not the best environment for children.47
In its written submission, Family Voice Australia (SA) cited two studies to support its position that male same-sex relationships are ‘highly unstable’ and ‘rarely monogamous’ and that female same-sex relationships are ‘significantly more unstable than heterosexual marriage, breaking up within the first 8 years at over three times the rate of marriages’.48
41 Mr John Moylan, written submission, 2010, page 1. 42 Ms Margaret J Dickson, written submission, 2010, page 1. 43 P.A. McArdle, written submission, 2010, page 1. 44 Derek, Linda and Jessie Andrews, written submission, 2010 page 1. 45 Ross Smith, written submission via email, 2010. 46 Dr Robert Pollnitz, written submission, 2010, page 3. 47 Mr Mark Ramsey, written submission, 2010. 48 Family Voice Australia (SA), written submission, 2010, page 3. The two studies referred to in the submission were: (a) Kippax S, Crawford J, Davis M, Rodden P, Dowsett G, ‘Sustaining safe sex: A longitudinal study of homosexual men,’ AIDS, 1993, Vol 7, pp 257-263; and (b) Andersson G, ‘Divorce-Risk Patterns in Same-Sex Marriages in Norway and Sweden’, PAA 2004 Annual Meeting, Boston, 1-3 April 2004. 20 Social Development Committee of the South Australian Parliament KEY ARGUMENTS IN SUPPORT OF SAME-SEX PARENTING In contrast, the recurrent themes raised in submissions by proponents of same-sex parenting were as follows:
. children with same-sex parents fare well both socially and psychologically and often have extended family structures with both male and female role models; . same-sex parents do not threaten the institution of marriage and will not cause the demise of moral society; . families come in all shapes and sizes; . current laws are discriminatory and significantly disadvantage children born into same-sex relationships; and . same-sex relationships are no different to other relationships in terms of their longevity.
Many submissions in support of same-sex parenting expressed dismay at current South Australian laws: It is outrageous that … we are still discriminating against people on the basis of their sexuality ... What matters is whether the child is loved and cared for and given opportunities to thrive. The time is well overdue to put this eighteenth century debate behind us and put our energies into protecting the far too many children who do not receive the love they deserve.49
Others wrote about the need for the community to be more accepting of different family forms: It is in the best interests of all children to bring them up in a world that recognises and celebrates difference. It is this world that will be safe for our son to grow up in, not one where his family is not recognised or shunned.50
Not all of the self-identified Christians who the Committee heard from were opposed to same-sex parents. In her written submission, Reverend Leanne Jenski wrote: As a clergy person I wish to express my concern that the usual voice from Christians is often opposed to changes in the law which equalise the rights of [same-sex parents, amongst others] but the conservative right of the church does not speak for all Christians.51
And further: Families come in many and varied forms and even in our sacred text (The Bible) we can find examples which don’t fit the conservative ideal of mum, dad and kids. There is even a surrogacy type arrangement between two women who love each other …52
49 Ms Nikki Mortier, written submission, 2010, page 1. 50 Ms Rachel Newrick, oral evidence, Committee Hansard, 2010, pages 118 and 119. 51 Reverend Leanne Jenski, written submission, 2010, page 1. 52 Reverend Leanne Jenski, written submission, 2010, page 1 21 Social Development Committee of the South Australian Parliament Similarly, the mother of a gay man, who identified herself as a Christian, wrote in support of her son who 'is in a very long term faithful relationship and could not be a more supportive and caring son and partner.'53 She went on to say: The information given to undermine the case for same-sex parenting is often not founded on valid research, but on assumptions and one’s own sexual alignment. Same-sex couples find that they are judged harshly by society for their relationship and then suffer further as they express a wish to have children. Their condition is hard enough to bear as it is without the added burden of vilification which often occurs.54
Another submission provided the following statement in support of same-sex parents: I am a 33 year old Christian woman, married to a man, with two naturally conceived children. I am of the opinion that people should be able to enter into loving stable relationships with the person of their choice … [and] it is discriminatory that persons who choose to be in same-sex relationships and have children within those relationships - not be afforded the same rights and protection under the law that heterosexual relationships enjoy in Australia …A woman who is partnered to another woman should also be able to receive fertility assistance and that the children born into that relationship [should] be able to be legally both women's children. It may become more complex when two men are involved, but that's what policy writers were invented for - to write workable, non discriminatory policy that enables couples to access their rights that are described and protected by laws.55
Countering the view that same-sex relationships are of shorter duration than opposite- sex relationships, the Inquiry received many submissions from same-sex couples in long term relationships: My partner and I are same-sex parents. We have been a couple for 16 years. [We] have a healthy, happy and confident 5 year old who is just starting school.56
Another same-sex couple wrote that they have been living together in a 'committed' relationship for over 12 years and have a 4 year old daughter as well as providing foster respite care for a 13 year old boy: We believe we are contributing members of the Australian community, and yet, under current South Australian and Australian law, we as a family, are discriminated against. We believe this is unfair.57
In her submission, Ms Natalie Harkin wrote:
53 Name withheld, written submission (no. 657), 2010, page 1. 54 Name withheld, written submission (no. 657), 2010, page 1. 55 Ms Kylie Malota, written submission, 2010 page 1. 56 Ms Belinda Robertson, written submission, 2010, page 1. 57 Ms Sue McNamara and Ms Leanne Nearmy, written submission, 2010, page 1. 22 Social Development Committee of the South Australian Parliament I am in a loving and committed relationship of 17 years, with my female partner, and we have two children 2 and 11 months old.58
Another spoke of her 28-year relationship in which she and her partner are raising a daughter.59
In response to questions concerning the sexual orientation of children born to same- sex parents, Dr Katrina Allen, Australian Lesbian Medical Association, told the Committee that available research does not indicate elevated rates of homosexuality among children born to same-sex parents: There is absolutely no evidence in the research of that. It is still completely clear that the children emerge heterosexual. Of course, there is the same instance of same-sex attraction as you would get in the … heterosexual population.60
Dr Allen also told the Committee that children living with same-sex parents should not be viewed in isolation of the broader social context: Our society is heterosexist and heterosexual. So these kids are not growing up in a little tower all by themselves with their same-sex parents. They are going to ordinary schools. They are part of ordinary communities, and those ordinary communities are predominantly heterosexual. The television that they watch is heterosexual by and large. So they do very much get the input of the rest of society around how they are and how they will express themselves sexually.61
AVAILABLE DATA ON SAME-SEX PARENTING The Inquiry heard that it is not possible to obtain reliable data on the number of same- sex couples with children living in South Australia.
The Committee understands that the Australian Bureau of Statistics (ABS) first collected data on same-sex couples as part of the 1996 census.62 Prior to this, no statistical information was gathered on how many people lived in a same-sex partnership in Australia.63
According to the ABS, in 1996, around 10,000 same-sex couples were counted in the census. This figure doubled to 20,000 same-sex couples in 2001, with 11,000 of this number identifying as male same-sex couples and 9,000 identifying as female same- sex couples.64 The ABS acknowledges that these figures need to be treated with some caution and are likely to be an underestimate of the real number of same-sex couples because some people may be reluctant to identify that they are in a same-sex partnership.65
58 Ms Natalie Harkin, written submission, Committee Hansard, 2010, page 1. 59 Ms Roxxy Bent, oral evidence, Committee Hansard, 2011, page 155. 60 Dr Katrina Allen, oral evidence, Committee Hansard, 2011, page 142. 61 Dr Katrina Allen, oral evidence, Committee Hansard, 2011, page 143. 62 ABS. Year Book Australia, 2005. Cat No. 1301.0. 63 The ABS defines same-sex couples as 'persons of the same-sex living together in the same household and reporting a de facto relationship', ABS. Year Book Australia, 2005. Cat No. 1301.0, page 1. 64 ABS. Same-sex couple families (feature article, pages 1 and 2). Year Book Australia, 2005. Cat No. 1301.0. 65 ABS. Same-sex couple families (feature article). Year Book Australia, 2005. Cat No. 1301.0. 23 Social Development Committee of the South Australian Parliament Information on how many same-sex couples have children is even more difficult to ascertain. The 2001 census data suggests that around 20% of female same-sex couples had children and around 5% of male same-sex couples had children.66 The most recent ABS census data (2006) suggests a figure of 27,000 same-sex couples with the ‘majority of these couples [having] no children’.67
The Committee notes that no specific ABS data is published on the number of same sex couples with children in South Australia.
One submission drew the Committee’s attention to the findings of a study published by the University of Queensland in 2010. More than 2,000 same-sex attracted individuals participated in the study, ranging in age from 18-82 and living in urban and regional areas of Australia. In relation to parenting, the study found that around 30% of same-sex attracted women and 10% of same-sex attracted men reported having children in their lives, while another 20% of same-sex attracted women reporting that they were planning to have children.68
A number of witnesses suggested that same-sex couples may be reluctant to identify their relationship for fear of harassment or prejudice. For example, in its written submission, the Australian Lesbian Medical Association stated that any attempt to count the number of same-sex couples living in South Australia needs to recognise that while ‘same-sex parenting has a long history’ it also has traditionally had ‘low disclosure rates’.69
In a similar vein, Associate Professor Barbara Baird, Department of Women’s Studies, Flinders University, noted that not all same-sex attracted individuals connect with gay and lesbian communities. As such, any data obtained from these communities will inevitably underestimate actual numbers. According to Associate Professor Baird: Lesbian, gay, bisexual or otherwise ‘same-sex attracted’ individuals are a remarkably diverse and disparate population. This is not to disparage the efforts of lesbian and gay organisations, whose contact with, and information about, lesbian and gay and bisexual people will be much more meaningful than that of government agencies or government accounts … It is to argue for an acknowledgement of the inevitable limits, if not failure, of any attempt to count this group of people.70
The South Australian Births, Death and Marriages Registration Office, the agency responsible for the registration of births in South Australia, informed the Inquiry that it receives ‘at least one call per month’ from women in same-sex relationships enquiring about the provisions for registration of a child born into such relationships.71 The agency acknowledged that the low incidence of enquiries from
66 ABS. Same-sex couple families (feature article, page 2). Year Book Australia, 2005. Cat No. 1301.0. 67 ABS. Family Characteristics and Transitions, Australia, 2006-07, Cat. No. 4442.0 page 6. 68Ms Rebecca Knight, written submission, 2010, page 1. The full citation of the report is as follows: Dane, S.K. Masser, B.M. MacDonald, G. Duck, J.M. Not so private lives: National findings on the relationships and well-being of same-sex attracted Australians, (2010), The University of Queensland, Australia. Report can be accessed at espace.library.uq.edu.au/eserv/UQ:205948/Not_So_Private_Lives_Report.pdf 69 Australian Lesbian Medical Association (ALMA), written submission, 16 July 2010, page 1. 70 Associate Professor Barbara Baird, written submission, 16 July 2010, page 1. 71 Birth, Deaths and Marriages Registration Office, written submission, 2010, page 1. The agency noted that enquiries from men in same-sex relationships are ‘much less frequent’, written submission page 1. 24 Social Development Committee of the South Australian Parliament same-sex couples was ‘unlikely to be an accurate guide’ on the number who are parents or who want to parent. 72
Some witnesses argued that because same-sex couples and their children only account for a very small proportion of the population, such an Inquiry is not warranted nor should any resources be expended to examine this issue.73 The Committee does not support this line of reasoning. While the precise number of same-sex couples is not known and may be relatively small, the Committee is concerned about the impact that current laws have on children born into, or living in, such arrangements. As noted in one submission: The fact of the matter is that there are gay families all over Australia, and throughout South Australia, gay parenting is not a new idea and gay couples continue to bring children into their lives every day …74
72 Birth, Deaths and Marriages Registration Office, written submission, 2010, pages 1 and 2. 73 For example, Mr Owen Davis, written submission, 2010 page 3; Mr John Shenton, written submission, 2010, page 1; Mal and Sylvia Holland, written submission 2010, page 1; John and Robyn Devine, written submission, 2010; The Presbyterian Church of South Australia (Church and Nation Committee), written submission 2010, page 2. 74 Ms Jessica Owen, written submission, 2010, page 1. 25 Social Development Committee of the South Australian Parliament 26 Social Development Committee of the South Australian Parliament SECTION TWO: EXPERIENCES & LEGAL STATUS
This section examines the experiences of same-sex parents living in South Australia. It also explores the legal status of children born to same-sex parents.
It should be noted that few submissions were received from male same-sex parents. It should also be noted that the Committee did not receive any direct evidence from children or adults born to same-sex parents.
THE EXPERIENCES OF SAME-SEX PARENTS AND THEIR CHILDREN The Inquiry received more than 20 written and oral submissions from same-sex couples who have children. None of the parents who submitted evidence to the Inquiry expressed regret about becoming parents.
Generally, the issues raised by same-sex parents can be categorized into two types: . difficulties in achieving pregnancy, and . the lack of parental rights of the non-biological parent.
It was apparent from the evidence received by the Committee that same-sex attracted individuals and couples are involved in parenting in a variety of ways.
For example, one woman wrote about her experiences of parenting and how she and her partner had been able to conceive a child with the assistance of a South Australian fertility clinic after she was diagnosed as medically infertile. This woman also described the shared parenting arrangements for two other children born with the assistance of a known sperm donor as part of a previous same-sex relationship: [My other sons] live week about with us. In the week they are not with us they live with their other mum [their birth mother].75
Another woman wrote about how she and her same-sex partner have cared for five foster children over a three-year period.76
Another couple spoke about their young son born with the assistance of a known donor. The couple also parent two older adult children, one of whom lives with them, born of a previous heterosexual relationship.77
The Committee also received a submission from a couple who wrote about how they had conceived their daughter after a ‘good friend’ agreed to be a sperm donor. According to the couple, while they are the ‘primary caregivers’, their donor is known as their daughter’s ‘father’ and is ‘significantly involved in her life’.78
Role Models The Committee asked a number of the same-sex parents who appeared before the Inquiry to respond to the proposition, held by some members of the South Australian
75 Dr Georgie Swift, written submission, 2010, page 1. 76 Ms Rebecca Knight, written submission, 2010, page 3. 77 Ms Bronwen McClelland and Ms Melina Magdalena, oral evidence, Committee Hansard, 2011, pages 153. 78 Ms Sue McNamara and Ms Leanne Nearmy, written submission, 2010, page 1. 27 Social Development Committee of the South Australian Parliament community, that children need both a mother and a father; both female and male role models.
In their responses, some witnesses suggested that opponents of same-sex parenting assume, incorrectly, that children raised by same-sex couples are completely excluded from contact with the opposite gender.
Some lesbian parents spoke of having actively encouraged male role models to participate in their family unit and develop a nurturing relationship with their child: I think a child requires parents who love, adore, look after, feed and clothe them … What makes a good parent is wanting to be a parent … [Our daughter] has an uncle that she knows and she has grandfathers. She has lots of men in her life. … She has many people in her life. She does not live in isolation on the Island of Lesbos in a women-only world … She is a regular, normal child. She goes to kindergym and playgroup … She has wonderful role models in her life.79
Another couple told the Committee: We believe that children should have a range of role models, both male and female, and we aim to provide that for both of them. We have extended family members, friends, who all play that kind of role in their lives. I’m not necessarily of the belief that they need a particular gender in their house at all times. I do believe that it is important that they have role models of both genders and … they have. It doesn’t seem to have been a problem in their lives or in the lives of people that we know in similar situations.80
Another witness expressed similar sentiments: Our children are growing up as part of a strong and loving family. They have two sets of grandparents. They have cousins, aunts, uncles and a really large, extended family … It is not just us; we have a really large, extended family, and they are very supportive of us and they consider [our son] their grandson and their nephew regardless of how he was conceived.81
Prejudicial Attitudes The Committee was keen to understand whether children born into same-sex families face additional difficulties arising from prejudicial attitudes at school and in the community.
Ms Terri Mitchell-Smith, Let’s Get Equal Campaign, told the Committee about some of the concerns she and her partner had about teasing and bullying in school: Before we had [our daughter] we thought about whether she would get teased at school for simply having [same-sex parents]. We
79 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 11. 80 Ms Katherine Taylor, oral evidence, Committee Hansard, 2010, page 110. 81 Ms Rachel Newrick, oral evidence, Committee Hansard, 2010, page 116. 28 Social Development Committee of the South Australian Parliament thought, well, if they are going to tease her for that, it may happen and we will deal with it and sort through it …82
Ms Mitchell-Smith noted that children are teased for all sorts of reasons – for example, for having red hair, wearing glasses or being overweight – and that from her perspective the important issue is how teasing is managed and alleviated.83
Similarly, Dr Laraine Ruthborn, Australian Lesbian Medical Association, noted that while there will always be ‘bullying and discrimination in any society’, legislation can provide an important role in affecting social and attitudinal change: Bullying and discrimination on the basis of someone’s sexuality is something that can be improved by changing the law. If the law discriminates against us, people in society feel that it is more acceptable to discriminate against us and there is likely to be more bullying and discrimination on that basis. … if the law changes, society will change. It won’t eliminate it but it will make it much less likely that discrimination on those grounds will happen within society.84
Positive Experiences The Committee received positive examples of community attitudes to same-sex parents. In a written submission, Ms Bronwen McClelland described her and her partner’s experience as follows: Throughout our journey of conception, pregnancy and birth, we encountered nothing but acceptance and support from the people around us, and the people we met. This included: our families, our neighbours, people in our workplaces, medical practitioners (both mainstream and alternative) and my church. While clearly, there remain pockets of people who continue to hold prejudiced views about the ability of same-sex families to care adequately for children, it is clear to us that the vast majority of the community do not feel this way …85
Ms Melina Magdalena similarly noted in her written submission that she and her partner had: faced little, if any, homophobia during the times that we have accessed hospital services. Society has taken giant steps in the direction of acceptance, and our families have embraced our son as one of their own.86
In her oral evidence, Ms Margie Fischer told the Committee that she had had some concerns that she and her partner would not be readily accepted by the broader community after the birth of their child. These concerns, however, proved unfounded:
82 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 12. 83 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 12. 84 Dr Laraine Ruthborn, oral evidence, Committee Hansard, 2011, page 145. 85 Ms Bronwen McClelland, written submission, 2010, page 1. 86 Ms Melina Magdalena, written submission, 2010, page 1. 29 Social Development Committee of the South Australian Parliament I constantly felt that we wouldn’t be accepted. I didn’t mind telling people that we were two women who had a child, but I always thought that, somehow, we would be lesser in people’s eyes. Because I work in the arts community, I didn’t feel bad about it there, but I did in the school community and with other parents. What is amazing is that they were all fabulous. People wanted their children to come over and play with [our daughter]. They thought we were marvellous parents ... 87
Ordinary Families Many of the same-sex parents who submitted evidence to the Inquiry stressed that while the State treats them as being ‘different’, they view themselves as belonging to ‘ordinary’ and ‘average’ families. For example, one woman stated that while her story is ‘unique’ it is no more ‘special’ or ‘important’ than anyone else’s.88
Another couple wrote: We are a regular family, living in a regular street. We look out for our neighbours and they for us. We borrow a cup of sugar when we need it and we look after each other’s kids …89
The couple emphasised the same point in their oral evidence to the Inquiry: We are a family. We are just like any other family. We are only asking for the same rights as other families and other parents …90
Planned Parenthood Other same-sex parents drew the Committee’s attention to the logistical difficulties of achieving pregnancy and the need for careful planning: Homosexual couples have to go through a great deal more planning than straight couples. We can’t just accidently fall pregnant. We have to think the whole process through in minute detail. Gay couples have to really want children. We have to be committed to the idea and plan our children’s conception, which means that it happens when we are ready to be parents and not because the condom broke at a junction in our lives when we may or may not be capable of raising a child.91
Another same-sex parent with two children provided the Committee with the following account of the challenges she and her partner had experienced in conceiving their first child: We knew we wanted to have children and from the early days began discussing how this would work for us. We decided that for our family we wanted a known donor but that the person would not be in a parenting role. A friend initially agreed but at the 11th hour
87 Ms Margie Fischer, oral evidence, Committee Hansard, 2011, page 159. 88 Dr Georgie Swift, written submission, 2010, page 1. 89 Ms Rachel Newrick and Ms Kimberley Newrick, written submission, 2010, page 4. 90 Ms Rachel Newrick and Ms Kimberley Newrick, oral evidence, Committee Hansard, 2010, page 118. 91 Ms Jessica Owen, written submission, 2010 page 2. 30 Social Development Committee of the South Australian Parliament changed his mind. Following difficulty finding a donor we decided to investigate [assisted reproductive technology] … We attended a [fertility clinic that] couldn’t do anything unless there was medical infertility. They offered to do a heap of tests and invasive procedures “in case” my partner was medically infertile … My partner and I took stock. We decided to return to our search for a known donor. We found one through a family friend. He was interstate which made the logistics a bit trickier but we had been charting my partner’s cycle for some time and we began the process of insemination at home. In the third month of trying we conceived [our son]. [Our other son] was created in the same way and he joined us [two years later] …92
In a similar vein, Dr Katrina Allen, Australian Lesbian Medical Association, told the Committee: Most same-sex attracted parents … have had to consider parenthood very carefully, they have often had to work quite hard to establish the basis on which they may consider parenting, and they have had to work quite hard to actually have a child … So, it is not an issue that is the result of a careless social interaction …93
THE LEGAL STATUS OF CHILDREN AND NON-BIOLOGICAL PARENTS The issue of legal parentage was a key and recurring theme in evidence presented to the Inquiry. Many same-sex couples drew the Committee’s attention to the difficulties they experience because of the lack of legal recognition of the non-biological parent. This evidence was particularly compelling and made a strong impression on the Committee.
At present, under South Australian law, if a married woman becomes pregnant through the use of assisted reproductive treatment, her husband is treated in law as the father of the child94 and his name is placed on the child’s birth certificate. This is despite the fact that he does not have any biological connection to the child in cases where donor sperm has been used to achieve pregnancy. In other words, in the context of a heterosexual relationship, the law recognises that biology is not necessarily the key determinant of what constitutes a ‘parent’.
In contrast, the female partner of a lesbian woman who has had a child through assisted reproductive treatment is not recognised in law as a parent even though she may have been with her partner for many years and has every intention of co- parenting the child. These anomalies in existing South Australian law, which treat same-sex couples differently to opposite-sex couples, were repeatedly highlighted. If an opposite sex couple discover that they are infertile they are free to use a donor egg or sperm as needed. Yet, once the child is born, regardless of who supplied the donor egg or sperm, both
92 Dr Georgie Swift, written submission, 2010, pages 1 and 2. 93 Dr Katrina Allen, oral evidence, Committee Hansard, 2011, page 140. 94 Section 10D (1) of the Family Relationships Act 1975 (SA). Under the Act, a married woman includes a woman who is living with a man as his wife on a genuine domestic basis; and 'husband' has a correlative meaning. 31 Social Development Committee of the South Australian Parliament members of the couple are listed as parents on the birth certificate - even though one or neither of them may not be biologically related to the child. Why is this? Because the law recognises that those who raise a child are the parents. A lifetime of love, teaching, and sacrifice is worth more than the brief biological creation. Why is this not the same for same-sex parents? Do we not love, teach, and sacrifice just as much for our children?95
Dr Sonia Allan and Professor John Williams, Adelaide Law School, University of Adelaide, stated that South Australia is the only jurisdiction in Australia that does not legally recognise the role of the non-biological parent in same-sex relationships where the birth mother has used assisted reproductive technology to conceive.96
Dr Allan and Professor Williams also submitted that this lack of recognition renders same-sex co-parents as ‘invisible’ under current legislation97 and puts children born to same-sex parents in an ‘unequal’ and ‘unsatisfactory’ position:98 Legal recognition of parents gives rise to a set of legal rights and responsibilities (or obligations) that serve to protect and maintain children. Children who do not have their parent-child relationship recognised may have reduced rights and/or entitlements than other children within the community.99
The Inquiry heard repeatedly that legislation in all other states and territories recognises the female partner of a birth mother as the parent of the child when the child has been born through the use of a fertilisation procedure with the consent of the partner.100
The following table indicates the relevant legislation in other jurisdictions and shows how the presumption of parentage, as it relates to assisted reproductive technology, has been extended to include female co-parents:
95 Ms Kim Burman, written submission, 2010, page 1. 96 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 12. It should be noted that this submission lists the names of 12 other legal academics from the University of Adelaide and Flinders University who have endorsed the submission. 97 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 5. 98 Dr Sonia Allan and Professor John Williams, cover letter forming part of written submission 2010. 99 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 100 For example, Let's Get Equal written submission, 2010, page 10, Professor Jenni Millbank, written submission, 2010, page 2; Ms Alison Cameron-Edwards, written submission, 2010, page 1. 32 Social Development Committee of the South Australian Parliament TABLE 1: Legal Recognition of Non-Birth Mother101
Same-Sex Partner of birth mother using Assisted Reproductive Technology recognised
YES: Status of Children Act 1996, s14(1A) – When a woman who is the de facto partner of another woman has undergone a fertilisation procedure the other woman is presumed to be NSW a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure. This is an irrebuttable presumption.
YES: Status of Children Act 1974, s13 – If a woman undergoes a procedure as a result of which she becomes pregnant the woman's female partner is presumed, for all purposes, to VIC be a legal parent of any child born as a result of the pregnancy provided the same-sex partner consented to the procedure. This is an irrebuttable presumption.
YES: Artificial Conception Act 1985, s6A – Where a woman who is in a de facto relationship with another woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure then the de facto partner of the pregnant woman shall be conclusively WA presumed to be a parent of the unborn child; and is a parent of any child born as a result of the pregnancy. This is an irrebuttable presumption.
YES: Status of Children Act, s5DA – Where a woman who is the de facto partner of another woman undergoes, with the consent of the other woman, a fertilization procedure as a result NT of which she becomes pregnant, the other woman is presumed to be a parent of the unborn child and a child born as a result of the pregnancy. This is an irrebuttable presumption.
YES: Parentage Act 2004, s11(4) – A person is presumed to be a parent of a child if the person was in a domestic partnership with the woman who gave birth to the child at any time during the period beginning not earlier than 44 weeks, and ending not later than 20 weeks, ACT before the birth of the child. This presumption applies whether the child was born before or after the commencement of this Act. This is an irrebuttable presumption.
YES: Status of Children Act 1974, 10C(1A) – Where a woman is in a significant relationship, within the meaning of the Relationships Act 2003, with another woman and, with the consent of that other woman, undergoes a fertilization procedure the consenting woman is to be TAS treated as if she were the parent of any child born as a result of that pregnancy. This is an irrebuttable presumption. (The giving of consent is also presumed but is rebuttable).
YES: Status of Children Act, s19C-19E – [The] same-sex de facto partner of a woman who undergoes an insemination procedure or an implantation procedure who has consented to QLD the procedure is presumed to be a parent of any child born as a result of the pregnancy. Irrebuttable presumption.
NO SA
Parenting Orders The Committee was told that one of the only ways a non-biological same-sex co- parent can establish a legal relationship with her or his child is by obtaining a Family Court ‘parenting order’.102
Under the Commonwealth Family Law Act 1975, any person can apply to the Family Law Court to obtain a parenting order if they want to take on responsibility for a child who is not legally deemed to be theirs. In deciding whether a parenting order will be granted, the Court must take into account the best interests of the child.
101 This table comes from a written submission provided to the Inquiry by Dr Sonia Allan and Professor John Williams, written submission, 2010, page 12. 102 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 33 Social Development Committee of the South Australian Parliament While there is some evidence to suggest that parenting orders can be useful and provide some legal protections, the Committee was informed that overall parenting orders ‘do not create equal entitlements for children from same-sex parented families.’103
Evidence presented suggests that obtaining parenting orders can be cost-prohibitive and complicated, putting them out of reach for many same-sex couples. For those same-sex couples that have used parenting orders to provide some legal protection, evidence suggests that this protection is not comprehensive. For example, parenting orders are susceptible to change and only last until a child reaches 18 years of age.104 Moreover, the Committee heard that parenting orders are generally used when couples separate and there is conflict in the relationship about where and with whom the child should reside. As such, parenting orders were neither intended nor designed to be used by couples in stable and committed relationships.
As noted in one submission, parenting orders only afford ‘a modicum of legal protection’ and are ‘fraught with limitations.’105
Ms Terri Mitchell-Smith told the Committee that she and her partner had completed parenting orders for their child to afford both her partner and child some legal protection in the event that something happened to her: This is not as good as going on the birth certificate but it tries to give some recognition to my partner as a parent. [Parenting orders] only last until the child is 18 and they don’t cover things like inheritance. So we still have the problem.If my partner died without a will then [our daughter] may not be able to fully inherit from her [estate] … [My partner] cannot enrol [our daughter] in school. If she needs medical treatment in a hurry and I cannot be contacted, yes there is a parenting order there, but it will be a question of whether the hospital recognises it, does she have it on her, and those sorts of things ...106
Ms Mitchell-Smith went on to tell the Committee that while she was in a fortunate position, given her partner’s legal training, other couples would struggle to cover the associated cost.107 According to Ms Mitchell-Smith, the average cost of having a legally prepared parenting order put in place ranged between $2000 and $5000; a cost she considered prohibitive for many same-sex couples and one which would not be necessary if the non-biological parent was listed on the birth certificate.108
According to Dr Sonia Allan and Professor John Williams, Adelaide Law School, University of Adelaide: [It] is discriminatory to require certain parents to attend court and pay for such orders to be made, when in other family structures
103 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 104 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 105 AIDS Council of South Australia, written submission, 2010, page 8. 106 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, July 19 2010, pages 2 and 3. 107 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, July 19 2010, page 2. 108 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, July 19 2010, page 3. 34 Social Development Committee of the South Australian Parliament parental status and the accompanying legal rights and responsibilities are presumed under the law.109
Consequences The Committee was interested to know what day-to-day problems might arise because of the lack of legal recognition of a same-sex co-parent. The Committee was told that the same-sex co-parent may not have the power to: . make decisions about medical treatment for the child, including removal of tissue and blood transfusions; . appoint a testamentary guardian for the child; . bring about legal proceedings on behalf of the child; . make decisions or meet legal obligations concerning schooling or employment for children under 17 years of age; . be entitled to be party to child protection hearings; . be entitled to be present if the child is being questioned by police.110
Moreover, a child may not be entitled to any part of the co-parent’s estate if the co- parent dies without a will.111 According to Professor Carol Johnson, Chair in Politics, University of Adelaide, the consequences for children in not having both parents legally recognised can be both ‘serious and inhumane.’112
In her submission, Ms Melina Magdalena described the difficulties she has experienced as a result of not being legally recognised as a parent even though she was with her partner at the birth of their son and works fulltime to financially support her family: Not being [legally recognised] … makes me feel excluded, hurt and vulnerable.113
Another woman in a same-sex relationship, contemplating biological motherhood, outlined the fears she has for the welfare of any child born into the relationship and posed the following questions: What would happen if I died? Would our child remain with their one surviving parent or would they be taken into care since my partner would not be able to legally prove her relationship to the child? Could my relatives seek custody … [and move] interstate without considering the [child’s] relationship [with the] surviving parent?114 In a joint submission, Flinders Reproductive Medicine and Fertility SA115 stressed the importance of the legal recognition of non-biological mothers arguing that this would be in the best interests of children:
109 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 110 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 111 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 6. 112 Professor Carol Johnson, written submission, 2010, page 1. 113 Ms Melina Magdalena, written submission, 24 June 2010, page 1. 114 Ms Rebecca Knight, written submission, 2010, page 5. 115 Both Flinders Reproductive Medicine and Fertility SA are reproductive medicine units offering services to women and men experiencing infertility to assist them in their endeavours to become parents. 35 Social Development Committee of the South Australian Parliament [The] inability in SA for the social mother [that is, the non- biological parent] to acquire equality with respect to legal parentage causes considerable concern to both parents and creates vulnerability for children. Considering the emphasis that is placed upon the importance of the well being of any child born as a result of reproductive medicine treatment, we would like to see this inequality rectified so that the social mother could be recognised by law as a parent.116
The unfairness of laws governing legal parentage in South Australia was emphasised in the evidence provided by Ms Rachel Newrick: Kim [the co-parent] has always been [our child’s] parent. She was there through his planning, the choice of donor, and every medical procedure, the heartache of a miscarriage and the emotional roller- coaster of failed pregnancy attempts. She was there for the joy of that positive pregnancy test, antenatal classes and she cut his umbilical cord. She’s there for the many sleepless nights, the hospital visits when he’s sick and she is currently his primary carer while I work full-time. Kim is our son’s parent, yet his birth certificate doesn’t recognise her and it leaves us vulnerable legally.117
The confusing nature of the current laws relating to same-sex parents and legal parentage was emphasised in evidence provided by Ms Katherine Taylor: Both my partner and I have given birth to one child each. This means that I have no parenting rights to the child my partner gave birth to and vice versa … This is completely unacceptable. Whether certain members of society agree with our choice to make a family together, the reality is we have done it. I stay at home and raise both of our children yet I have absolutely no legal guardianship or parenting rights over one of those children. If something was to happen to my partner or I, we would have to go through the court system to prove that we are (and always have been) our children’s care giver and equal parent.118
Birth Certificates The Committee recognises that the legal recognition of a co-parent is important because it allows that individual to be registered on the child’s birth certificate. In every other Australian jurisdiction – in the context of assisted reproductive treatment – a birth mother’s female partner is recognised as a legal parent and, accordingly, her name can appear on the child’s birth certificate. This is not the case in South Australia.
In March 2011, South Australia’s Attorney-General (Hon. John Rau MP) advised the Committee that the Births, Deaths and Marriages Registration Act 1996 (SA):
does not permit same sex parents of a child to both be recognised as ‘parents’ in the register of births, irrespective of whether the Family Court has ordered
116 Flinders Reproductive Medicine and Fertility SA, written submission, 2010, page 1. 117 Ms Rachel Newrick, oral evidence, Committee Hansard, 2010, page 117. 118 Ms Katherine Taylor, written submission, 2010, page 1. 36 Social Development Committee of the South Australian Parliament [through a parenting order] that they each have shared parental responsibility for the child’.119
Recording of Non-Birth Mother in other Jurisdictions
The Committee contacted other jurisdictions to ascertain how the name of the non- birth mother is recorded on a child’s birth certificate.
In Tasmania, the Northern Territory and Western Australia, specific birth registration forms are used for same-sex parents. The Tasmanian ‘birth registration statement’ records the details of both the birth mother and the ‘other parent’, as at the birth of the child.120 Similarly, in the Northern Territory, the terms ‘mother’ and ‘other parent/second parent’ are used for same-sex parents. In Western Australia the birth registration form gives same-sex couples the choice of registering themselves as ‘birth mother’ and ‘parent’; ‘birth mother’ and ‘mother’; or ‘parent’ and ‘parent’.
Other jurisdictions, which use standard birth registration forms, have adapted these documents to accommodate same-sex couples. In Queensland, applicants can choose either ‘father’ or ‘parent's details’, with the latter option allowing non-birth mothers to be recorded as a parent. In a similar way, the application form for registering a birth in the Australian Capital Territory (ACT) includes spaces for recording the birth mother's details, as well as the details of either the ‘father’ or the ‘parent at the time of the birth’. The Office of Regulatory Services (ACT) provided an example of a mock birth certificate to demonstrate how a birth certificate listing two same-sex parents can look (see Appendix B).
In her evidence, Ms Terri Mitchell Smith told the Committee that she knew of same- sex couples who have travelled interstate to give birth to ensure that both of their names were able to be recorded on the birth certificate. She discussed the difficulties that this can pose: It is a huge thing to up stakes and to go interstate to give birth ... It is a big imposition and it is just purely to get both parents on the birth certificate ...121 One lesbian couple, expecting their first child, wrote that while they would prefer to birth their child in South Australia they are contemplating moving to Canberra so that their child will have two recognised parents on her/his birth certificate. According to the couple, the thought of ‘moving to Canberra at 36 weeks of pregnancy’ was causing them ‘much anxiety’, specifically: the strain of finding an affordable place to rent, relocating for an unknown period of time as we do not know if our baby will be born early or late, the financial cost of having to take time off work in South Australia, the welfare of mother and baby, and uncertainty of continuity of care …122
119 Letter received from the Hon John Rau, MP, Attorney-General 12 March 2011, page 3. 120 In contrast, the birth registration form used for heterosexual couples records 'mother's details' and father's details'. 121 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 3. 122 Dr Gretel and Ms Sheera Popperpng, written submission, 2010, page 1. 37 Social Development Committee of the South Australian Parliament According to Sexual Health information networking and education SA (SHine SA),123 the need for South Australian same-sex couples to travel interstate to give birth so that both parents can be recognised on the birth certificate is a ‘dreadful choice’ for them to have to make and exiles the prospective parents from their support systems, friends and family and known maternity care providers. Furthermore: It is also an unfair expense and a discriminatory impost on health and early parenting experiences to have to bear to simply have your family recognised - in order to give your child equity with children in all other states and territories in the country.124
Not all of the submissions received supported legal recognition of same-sex co- parents. For example, Family Voice Australia (SA) wrote that ‘there should be no legal mechanism for recording two persons of the same-sex as parents of a child on a birth certificate’.125 In its written submission, this organisation argued that legally recognising a co-parent in a lesbian relationship would place ‘an extraordinary burden … on a child’, deny a child’s knowledge of their biological father for the first eighteen years of their life and, in the longer term, substantiate ‘a biological nonsensical claim on the birth certificate that two women were the parents of the child.’ The submission continued: Allowing a woman who is not biologically related to a child, but who is merely the temporary sexual partner of the child’s mother to be recorded as a full legal parent of the child is unjust to both the child and to the child’s mother.126
Similarly, in his written submission, Archbishop Philip Wilson, Catholic Archdiocese of Adelaide, stated: Neither the [Tammy Franks’] Bill nor any other Bill which seeks to remodel the family, wilfully denying children of either a mother or a father, will receive our support.127
Additional Parents on Birth Certificates While every jurisdiction aside from South Australia, allows both same-sex parents to be registered on their child's birth certificate, no jurisdiction allows more than two legal parents to be listed on the certificate. Some witnesses argued that this limitation may prevent the certificate from adequately reflecting the actual parenting arrangements in families led by same-sex couples.128 For example, one couple wrote that their daughter's birth certificate ‘does not reflect the family she was born into as it only lists her biological mother’. In this particular family, the sperm donor is actively involved in parenting their child: Because her non-biological mother was not able to be added to the birth certificate we decided only to have the birth mother listed as we were not willing to have her donor parent on the birth
123 SHine SA, formerly Family Planning, describes itself as the lead sexual health agency in South Australia. It should be noted that the capitalisation of the first two letters in the acronym SHine SA is not in error but as it appears in the agency’s written submission and on its website. 124 SHine SA, written submission, 2010, page 3. 125 Family Voice Australia (SA), written submission, 2010, page 5. 126 Family Voice Australia (SA), written submission, 2011, page 5. 127 Archbishop Philip Wilson, written submission, 2010, page 6. 128 For example, Ms Roxxy Bent, oral evidence, Committee Hansard, 2011, page 159. 38 Social Development Committee of the South Australian Parliament certificate if her non-biological mother could not be on there also. So instead of reflecting her three parents it only shows one.129
The couple went on to state that they would ‘like to see space for multiple parents on a birth certificate’: We would like to see acknowledgement that families take a range of forms and to ensure this is embedded in … practice.130 This issue was also highlighted in evidence provided by the South Australian Births, Death and Marriages Registration Office: [The Office] may receive a query where a couple wish to register their baby with two mothers but also to have the biological father (generally a sperm donor) sign the birth registration statement and be acknowledged as the father. 131 While the Births, Death and Marriages Registration Office noted that such requests are infrequent, it stated that at present ‘there is no provision in the Births, Deaths and Marriages Registration Act 1996 to cover [such] situations.’132
Committee Comment The Committee recognises the complex nature of many family arrangements. In its previous inquiry into gestational surrogacy, the Committee noted the complexities that exist within surrogacy, and made a number of recommendations in relation to birth certificates for children born of these arrangements. In particular, the Committee recommended that an abridged birth certificate be issued for general use that records the commissioning parents as the parents of the child born through gestational surrogacy and that a detailed birth certificate be issued (upon request by the child) listing the commissioning parents, the surrogate mother and, if applicable, the use of donor material.133
The question of what information should be included on a child’s birth certificate will be an ongoing issue as family arrangements continue to change and evolve. While there may be merit in considering the introduction of a new birth certificate – which lists more than two parents – the Committee is of the view that the legal and social implications of such changes to certificates would require careful and thorough exploration.
Family Relationships (Parentage) Amendment Bill 2010 In June 2010, the Family Relationships (Parentage) Amendment Bill 2010 was introduced into South Australia’s Legislative Council by the Hon. Tammy Franks MLC. The Bill seeks to amend the Family Relationship Act 1975 (SA) so that the lesbian partner of a woman who has given birth to a child conceived using donor sperm can be recorded on the birth certificate as a parent of the child.
129 Ms Sue McNamara and Ms Leanne Nearmy, written submission, 2010, page 3. 130 Ms Sue McNamara and Ms Leanne Nearmy, written submission, 2010, page 3. 131 Births, Deaths and Marriages, written submission, 2010, page 2. 132 Births, Deaths and Marriages, written submission, 2010, page 2. 133 Social Development Committee 2007, Inquiry into Gestational Surrogacy Report 26, Parliament of South Australia, 13 November 2007. Refer to Recommendation 1 (f)(g)(h). 39 Social Development Committee of the South Australian Parliament If passed, this amendment would ensure South Australian legislation is consistent with the legislation already operating in other Australian jurisdictions.
In her submission to the Inquiry, the Hon. Tammy Franks called for greater equity for same-sex parents arguing that they share many common characteristics with heterosexual families: ‘they are not casual or transitory in nature and they represent relationships that have embraced exclusivity and permanency.’134
In November 2010, the Family Relationships (Parentage) Amendment Bill passed the Legislative Council and was sent to the House of Assembly for further consideration.135 It was still before the House of Assembly at the time that the Inquiry’s report was being finalised.
Committee Comment The Committee notes the evidence it received opposing legal recognition of same-sex parents. The Committee does not share the views nor accept the arguments put forward in this evidence. The difficulties same-sex non-biological parents experience as a result of not being listed on their child's birth certificate are of deep concern to the Committee. The Committee considers that a failure to legally recognise the non- biological parent in a same-sex relationship significantly disadvantages a child and misrepresents her/his lived experience by denying that she/he has two parents and two sets of extended families.
The Committee considers that current South Australian legislation is inconsistent with interstate jurisdictions and fails to adequately protect children born into same-sex relationships. The Committee believes the current legislation should be amended.
The Committee considers that the Parliament should, as a matter of urgency, pass legislation to amend laws relating to legal parentage and ensure that same-sex parents are given the same legal recognition as opposite-sex parents.
RECOMMENDATION 1 Legal Parentage The Committee recommends that, as a matter of urgency, the Attorney-General introduce legislation to amend the Family Relationships Act 1975 (SA) to: . allow the female partner (non-birth mother) of a woman (birth mother) who has undergone a fertilisation procedure to be legally recognised as the parent of a child born through such a procedure, providing that the partner consented to the treatment by which the birth mother conceived the child; . extend the presumption of parentage to the non-birth mother through the insertion of the gender neutral terms of ‘domestic partner’ and ‘co- parent’ into a number of the Act’s existing provisions;
134 Hon. Tammy Franks, written submission, 2010, page 3. 135 The Bill was passed in the Legislative Council on Wednesday 24 November 2010. 40 Social Development Committee of the South Australian Parliament . ensure the non-birth mother is able to be registered on the child’s birth certificate, by making any consequential amendments to any other relevant legislation; and . ensure the legislation is drafted so that it applies to children already born to such arrangements.
The Committee further recommends that appropriate training on the proposed changes and operation of the Act be provided to all persons and parties responsible for its administration.
41 Social Development Committee of the South Australian Parliament 42 Social Development Committee of the South Australian Parliament SECTION THREE: CURRENT LAWS AND THEIR EFFECT
This section summarises South Australian legislation governing adoption, foster care, surrogacy and assisted reproductive technology in relation to same-sex couples. In doing so, it provides a comparative overview of laws pertaining to same-sex couples in other Australian jurisdictions.
ASSISTED REPRODUCTIVE TECHNOLOGY ‘Assisted reproductive technology’ is a broad term encompassing a range of medically directed treatment options for infertility. These options include medical procedures that assist fertilisation of a human ovum (including in vitro fertilisation)136 or introduce human sperm into the female reproductive tract (such as artificial insemination).137
‘Donor insemination’ refers to the artificial means of placing donor sperm into the genital tract of a woman to create a pregnancy.
The Committee understands that for women in same-sex relationships, donor insemination is currently the most commonly used form of assisted reproductive treatment.138
Regulation State and territory governments are responsible for establishing regulatory frameworks for assisted reproductive technology. At present, only three Australian states have passed legislation to specifically regulate assisted reproductive technology; namely Victoria, Western Australia and South Australia. 139
In Western Australia, for example, eligibility for in vitro fertilisation procedures is outlined in section 23 of the Human Reproductive Technology Act 1991 (WA). Under these provisions, medical infertility is a criterion upon which access to this treatment is based. The Act stipulates that in vitro fertilisation procedures are only accessible in cases where a woman or couple is unable to conceive due to medical reasons or where a woman or couple’s child is likely to be affected by a genetic abnormality or a disease if produced through natural conception.140 Notwithstanding these restrictions, the eligibility criteria for access to artificial insemination procedures and donor sperm are far more flexible. Lesbian couples, irrespective of their fertility status, can access these services in Western Australia.141
136 In vitro fertilisation involves removing ova from a woman's ovaries, fertilising them in the laboratory to create an embryo(s) and then transferring the embryo(s) back into the woman's uterus. 137 It should be noted that while the AIHW and some jurisdictions do not include donor insemination under the definition of Assisted Reproductive Technology, for the purposes of this Inquiry this procedure is included within this broad heading unless otherwise indicated. 138 Australian Lesbian Medical Association, written submission, 2010, page 7. 139 Although New South Wales established the Assisted Reproductive Technology Act 2007 in January 2010, this Act focuses on donor information and the use and storage of donor gametes (that is, sperm, eggs and embryos). 140 Section 23(1)(a)(i)(ia)(ii)(iii). It should be noted that same-sex couples are not included within the definition of 'couple'. Specifically, s 23(1)(c) of the Act defines a couple as 'married to each other; or in a de facto relationship with each other and are of the opposite sex to each other'. 141 See Reproductive Technology Council (WA), Frequently Asked Questions, accessed 7 January 2011 at www.rtc.org.au/faqs/index.html#donor_insemination 43 Social Development Committee of the South Australian Parliament In Victoria, access to assisted reproductive technology, including in vitro fertilisation and artificial insemination, is not restricted to medical infertility. The Inquiry was told of recent changes to laws governing assisted reproductive technology in Victoria. The treatment eligibility provisions provide that a woman may undergo a treatment procedure if, in the 'woman's circumstances', she is unlikely to become pregnant. Specifically, section 10(2)(a) of the Assisted Reproductive Treatment Act 2008 (Victoria) indicates that a medical doctor must be satisfied that: (i) in the woman’s circumstances, the woman is unlikely to become pregnant other than by a treatment procedure; or (ii) the woman is unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure; or (iii) the woman is at risk of transmitting a genetic abnormality or genetic disease to a child born as a result of a pregnancy conceived other than by a treatment procedure, including a genetic abnormality or genetic disease for which the woman’s partner is the carrier;…
Eligibility is therefore not restricted to medical infertility. Rather, it requires a doctor to take into account ‘the woman’s circumstances’ and by doing so, determine, if she is ‘unlikely to become pregnant’ without assisted reproductive treatment.
Variations While all reproductive medicine units offering assisted reproductive technology services in Australia are required to comply with the National Health and Medical Research Council’s Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2007), these guidelines are particularly relevant to jurisdictions that have not enacted specific legislation.142 That noted, the guidelines do not specify eligibility criteria for access to services; rather, they suggest that clinics providing assisted reproductive treatment services should develop specific protocols for, among other things, access to, and eligibility for, treatment.143
While some fertility clinics within such jurisdictions may limit access on the basis of medical infertility, others may determine that such strict criteria will not be applied. In general, evidence presented to the Inquiry suggests that access to artificial insemination using donor sperm is readily available to lesbian couples in all Australian jurisdictions other than South Australia. Further discussion regarding the laws regulating assisted reproductive technology in South Australia and the implications of these laws for same-sex couples is provided in the following section.
142 It should be noted that while the Northern Territory does not have any specific legislation regulating assisted reproductive technology but is guided by South Australian legislation. Source: Victorian Assisted Reproductive Treatment Authority (VARTA) at www.varta.org.au/relevant-acts-regulation-other-states/w1/i1003271/ accessed 6 December 2010. 143 See Section 5.3.1 of the Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2007) at www.nhmrc.gov.au/_files_nhmrc/file/publications/synopses/e78.pdf (accessed 6 December 2010). 44 Social Development Committee of the South Australian Parliament South Australia In South Australia, assisted reproductive technology is regulated by the Assisted Reproductive Treatment Act 1988 (SA). Under the Act, a woman is not eligible to undergo any assisted reproductive treatment procedure (including in vitro fertilisation and artificial insemination using donor sperm), unless she is medically infertile or is likely to give birth to a child suffering from a genetic abnormality.144
Historically, the Act had restricted access to this technology to 'married couples' (defined as husband and wife) where either or both had infertility problems or where there was a risk of a genetic defect if natural conception were to take place. However, since the Pearce decision in 1996 – in which the Full Court of the Supreme Court of South Australia found that the South Australian Reproductive Technology Act 1988 that restricted access to married women was inconsistent with the Commonwealth Sex Discrimination 1984 – marital status has not been a criterion on which reproductive medicine units can determine eligibility for treatment.145
Recent changes to the South Australian legislation have resulted in the removal of all wording that had formerly restricted access based on marital status. Thus, at present any woman—irrespective of sexuality—can access reproductive technology as long as she has a medical reason for infertility. While the term infertility is not defined in the Assisted Reproductive Treatment Act 1988, the ‘Assisted Reproductive Regulations 2010’ governing the interpretation of the Act state that assisted reproductive treatment may be provided in circumstances where a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment: is suffering from an illness or other medical condition that may result in, or the appropriate treatment of which may result in, the woman or man becoming infertile at a future time.146
The emphasis on illness and medical conditions defines infertility narrowly within a medical framework and, as such, has implications for same-sex couples in that it specifically excludes any other forms of infertility such as social infertility. The Inquiry heard that while there may be many lesbian women who do not have any medical impediment to achieve pregnancy, their sexuality prevents them from conceiving through heterosexual intercourse.
One witness described the difficulty she and her partner experienced in accessing assisted reproductive treatment in South Australia as follows: We have had to jump a lot of hurdles to access assisted reproductive services. In South Australia, women must have a diagnosed infertility issue to access services. I had to have investigative surgery just to be able to be considered for eligibility.147
144 Medical infertility is generally defined as the inability to conceive after a year of unprotected [heterosexual] intercourse, or the inability to carry pregnancies to a live birth. See Repromed. www.repromed.com.au/site/home/trying_to_get_pregnant/infertility.aspx?id=1309&str=define+infertility Many witnesses in support of same-sex parenting were critical of the narrow interpretation of infertility. Some, however, argued that even under this narrow definition lesbian women should be eligible for assisted reproductive treatment services because their sexuality will prevent them from conceiving in this way. 145Pearce v South Australian Health Commission (1996) 66 SASR 486. 146 See Assisted Reproductive Treatment Regulations 2010, s 8(1)(a)(b). 147 Ms Rachel Newrick, oral evidence, Committee Hansard, 2010, page 118. 45 Social Development Committee of the South Australian Parliament This witness told the Committee that she felt ‘lucky’ to have been diagnosed as suffering from infertility problems, pointing out the irony of the situation: Luckily, I was found to have fertility problems. It's strange that we think that was lucky. We celebrated when we got that advice— most other couples wouldn't—and I could access services straightaway.148 Similarly, another same-sex parent wrote of being ‘fortunate’ to have been diagnosed as medically infertile to allow her access to assisted reproductive treatment in South Australia.149
The Committee was repeatedly told that South Australian laws regulating assisted reproductive technology were out of step with other jurisdictions. One witness described how she was relieved to have been living in Sydney when she and her partner began the process of trying to conceive a child: It was a great thing to be in Sydney, because we were able to access the fertility clinic there as a lesbian couple, be taken seriously as a lesbian couple … we were already a family and we were taken seriously as a family. 150
The Committee was told that while lesbian couples can and do travel interstate to access assisted reproductive technology this was not without significant difficulties.
One same-sex parent wrote that the restrictive nature of laws regulating assisted reproductive technology in South Australia have had a 'personal effect' on her: I have been unable to be with my partner [during the insemination process] because she needed to go interstate for treatment.151
Another woman asked: Why should my partner and I have to move out of South Australia … in order to gain access to [in vitro fertilisation] and go through pregnancy … away from our families, creating upheaval in every aspect of our lives, not to mention having to give birth in another state, when any heterosexual couple having difficulty conceiving can access [in vitro fertilisation] treatment in South Australia because they are recognised as a couple? 152
In her evidence, Dr Katrina Allen, Australian Lesbian Medical Association, described the difficulties that had arisen for a patient of hers who had travelled back and forth to a fertility clinic in Queensland around the time of her ovulation in the hope of achieving pregnancy through the use of screened donor sperm: Sometimes [the expected time of ovulation] wasn't quite right, so [the patient] had to stay for another couple of days, and then they had to go back again. It is an expensive business.153
148 Ms Rachel Newrick, oral evidence, Committee Hansard, 2010, page 118. 149 Ms Karen Orchard, written submission, 2010, page 1. 150 Ms Roxxy Bent, oral evidence, Committee Hansard, 2011, page 155. 151 Ms Jenny Roy, written submission, 2010, page 1. 152 Ms Jessica Owen, written submission, 2010, page 1. 153 Dr Katrina Allen, oral evidence, Committee Hansard, 2011, page 141. 46 Social Development Committee of the South Australian Parliament Dr Allen also talked about how travel to another jurisdiction to access services that are unavailable in South Australia can hinder continuity of care for the patient: [The interstate] clinic doesn't have any connection with [the patient], so from a medical point of view the follow-up is more difficult …154
SELF-INSEMINATION: POTENTIAL HEALTH RISKS The Committee heard that lesbian couples who are ineligible to access assisted reproductive technology in South Australia and not readily able to travel interstate may choose to self-inseminate in private arrangements.155
The following example taken from one submission typifies the many stories submitted to the Inquiry about the current laws relating to access to assisted reproductive technology and the use of donor insemination in private arrangements: My same-sex partner and I ... were unable to use reproductive services in South Australia as neither of us was deemed medically infertile. Consequently we had to make the choice between travelling interstate in order to access reproductive services that do allow same-sex couples or attempt to conceive our children ourselves using artificial insemination. We chose the latter. Whilst we were able to conceive our children in this manner and did appreciate the fact that we didn’t have to endure invasive medical procedures to do so we also had to take a calculated risk in terms of not being entirely sure that our donors [were] free from [sexually transmitted infections]. We did ask our donors to undertake medical tests to check for [sexually transmitted infections] but a test doesn't guarantee that someone hasn't engaged in risky behaviour between taking the test and completing a sperm donation. Ultimately it shouldn’t have to be a choice between spending copious amounts of money travelling interstate to use reproductive services or taking a risk that you may contract a [sexually transmitted infection].156
In advocating for the expansion of eligibility for access to assisted reproductive technology, Associate Professor Margie Ripper, Department of Women's Studies, Flinders University, discussed research she had conducted in 2006 that had examined the way lesbian women in South Australia conceived children outside of a clinical context through the use of a known sperm donor. Dr Ripper highlighted the ‘emotional impact’ lesbian women go through in their quest to have children: It does not take much of an imagination to think of the incredibly intimate questions that you would need to raise … After going through all of that … the donor [may] say no, and then [the lesbian couple] would start again. It was not uncommon. One couple, for example, conceived after five years of going from donor to donor—eight different donors. That would have been completely
154 Dr Katrina Allen, oral evidence, Committee Hansard, 2011, page 141. 155 Flinders Reproductive Medicine and Fertility SA, written submission, 2010, page 1. 156 Ms Katherine Taylor, written submission, 2010, page 1. 47 Social Development Committee of the South Australian Parliament unnecessary if we had had the access to reproductive technology [in South Australia].157
Legal Implications
According to Flinders Reproductive Medicine and Fertility SA, the use of sperm in private arrangements leaves women and their potential offspring vulnerable to not only health risks but also legal risks: [The] sperm donor is not screened to [National Health and Medical Research Council] guidelines and it places the child and the mothers in an even more precarious position legally since the legal status of the donor is not clear as it is under the Family Relationships Act SA 1975 where a medical procedure has been used to effect conception.158
Similarly, in a written submission to the Inquiry, Ms Karen Orchard drew the Committee’s attention to the associated health risks of lesbian couples entering into private arrangements with sperm donors. She also highlighted the problems that may arise because there are no control systems in place to prevent sperm donors from making multiple donations: There are no tracking systems for "Do it yourself" donors, and potentially there are multiple babies being born of the one donor to multiple couples. By improving access to reproductive technology, this risky behaviour will decrease greatly. 159
Heterosexual Framework In a joint submission to the Inquiry, Flinders Reproductive Medicine and Fertility SA criticised current thinking on fertility and reproduction for being exclusively framed in terms of ‘a heterosexual context.’ The joint submission demonstrated this point with the following scenarios:160
. A fertility clinic is only able to offer services to an infertile lesbian woman even though her female partner (who is fertile) may be more willing to bear a pregnancy. In effect, the couple is not viewed as a unit but as two single women. . Sometimes both women in the partnership wish to bear a child to make up their family but are viewed by clinics as two single women rather than one family unit. This impacts on their eligibility to access sperm from the same donor. As there are legal limits on the use of a sperm donor in SA (effectively at present 10 families can be formed from the donation of one sperm donor), this can mean the children in this same family have different donors. . A woman in a lesbian relationship may wish to use stored embryos that were created for her partner but are surplus to her needs (if she has successfully achieved pregnancy) or no longer required (if, for example, she has had a
157 Dr Margie Ripper, oral evidence, Committee Hansard, 2010, page 40. 158 Flinders Reproductive Medicine and Fertility SA, written submission, 2010, pages 1 and 2. 159 Ms Karen Orchard, written submission, 2010, page 1. 160 Flinders Reproductive Medicine and Fertility SA, written submission, 2010, page 2. 48 Social Development Committee of the South Australian Parliament hysterectomy and is no longer able to carry a pregnancy). In such cases where her female partner may wish to use the ‘spare’ embryo, fertility clinics have considered these situations to be akin to surrogacy arrangements. However, strictly speaking, such situations do not fall within the category of a surrogacy arrangement as there is no intention on the part of the woman carrying the pregnancy to relinquish the child.161
Having highlighted these examples, Flinders Reproductive Medicine and Fertility SA concluded: Legislation needs to support couples in minority relationships so that the circumstances that do not have a well articulated conceptual framework in our society are recognised for what they are, not distorted to fit the existing framework of the mainstream.162
Access to Donor Information Some evidence presented to the Inquiry noted that allowing lesbian women access to donor sperm through fertility clinics ensures a child’s access to information about donor identity.163
The Committee understands that sperm donors can no longer remain anonymous and that fertility clinics only recruit donors who are willing to have their details released to children born as a result of donor insemination. However, if a same-sex couple enters into a private arrangement with a sperm donor because they are not able to access services in South Australia, their child may be denied information about the full circumstances of their birth and genetic background.
Committee Comment The Committee received numerous submissions from individuals and groups opposed to the use of artificial reproductive technology, even for those with fertility problems. Others were not opposed to the technology, per se, but were opposed to same-sex couples being allowed to access it. These individuals and groups argued that the technology should only be made available to married heterosexual couples. The Committee does not support this position.
The Committee notes that excluding women from access to assisted reproductive technology services will not stop them from travelling to other jurisdictions where these services are legally available to them. The Committee also notes that South Australian laws do not prevent women who did not meet the eligibility criteria to proceed with artificial insemination with donor sperm outside of accredited fertility clinics and as such, without the appropriate medical screening and counselling. The Committee is concerned that denying women access to assisted reproductive technology services on the basis of their medical fertility may put them at risk if they seek sperm donors outside of the system who have not been subject to stringent
161 Such a situation was also raised in evidence by Ms Terri Mitchell-Smith and Ms Jo Mitchell-Smith in their oral evidence to the Inquiry, Committee Hansard, 2011, page 170. 162 Flinders Reproductive Medicine and Fertility SA, written submission, 2010, page 2. 163 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 8. 49 Social Development Committee of the South Australian Parliament screening processes. Moreover, children born into such arrangements may be denied information about their genetic origins.
The Committee recognises that even if current restrictions on access to assisted reproductive technology in South Australia are lifted, some women will choose to remain outside of accredited fertility clinics and enter private arrangements. A number of submissions advocated for the medical screening of donor sperm in such instances. The Committee supports this position and recommends that these women have access to full screening. However, the Committee is of the view that children must have access to their biological history and any screening should be conditional upon the woman providing donor identifying information to the clinic.
The Committee strongly supports the rights of all children born through donor insemination to have access to information about their genetic background and to understand the circumstances of their birth. The Committee considers that all parents should be open and frank with their children about the circumstances of their birth and not deny them information about their genetic history.
RECOMMENDATION 2
Access to Assisted Reproductive Technology The Committee recommends that the Minister for Health introduce legislation to amend the Assisted Reproductive Treatment Act 1988 (SA) to remove barriers that preclude lesbian and/or single women from accessing assisted reproductive technology. The amendments should seek to broaden the meaning of ‘infertile’ by replacing sections 9(1)(c)(i) and (ii) of the Act with the following wording: “if, having regard to all of the circumstances of a particular woman, the woman would be unlikely to become pregnant other than by the use of assisted reproductive treatment;”.
RECOMMENDATION 3
Access to Screening and Counselling The Committee recommends that the Minister for Health ensure that women who make private arrangements to self-inseminate have ready access to proper screening and/or counselling services. The Committee further recommends that the Minister for Health ensure that such access is provided on condition that: . all necessary donor identifying information is made available to the relevant accredited fertility clinic; and . all information is properly recorded so that any child born as a result of self-insemination is able to access their genetic and biological history.
50 Social Development Committee of the South Australian Parliament ADOPTION Adoption is one way in which a child can be permanently cared for by a family with whom they may not have a biological connection. It is a process by which a child becomes legally and permanently the child of their adoptive parent/s. All former legal rights that existed from birth in relation to the birth parents (for example, inheritance) are removed and a new birth certificate is issued to the child bearing the names of her/his adoptive parents.164
According to Families SA, adoption can occur in several ways: . local adoptions of children who were born in Australia or who were permanent residents of Australia before the adoption; . known child adoptions of children who are Australian residents and who have a pre-existing relationship with their prospective adoptive parent(s) such as step-parents, relatives or carers; and . intercountry adoptions of children from countries other than Australia.
Trends in Adoption In recent decades, trends in adoption have changed significantly. These trends are reflected in the following data: . Over the past 40 years, there has been a 21-fold decrease in the number of adoptions in Australia; from 8,542 in 1972-73 to 412 in 2009-10. . While the overall number of adoptions has fallen, the proportion of intercountry adoptions has increased and 'emerged as the dominant category of adoptions'. For example, in 2009-10, intercountry adoptions represented 54% of all adoptions compared to 10% in 1984-85. . In South Australia in 2009-10, only 23 children were adopted. Of these, 2 were local adoptions, and 21 were intercountry adoptions.165
Legislation Three Australian jurisdictions allow same-sex adoption and have laws that do not differentiate between same-sex couples and opposite-sex couples for the purpose of adoption: Western Australia,166 Australian Capital Territory,167 and New South Wales.168 In Tasmania, same-sex couples can adopt under limited circumstances where the child is related to one of the parties to that relationship.169
In South Australia, adoption is governed by the Adoption Act 1988. Current South Australian law prohibits same-sex couples from adopting children. Section 12(1) of the Act states: an adoption order will not be made except in favour of two persons who have been cohabiting together in a marriage relationship for a continuous period of at least five years (emphasis added).
164 Families SA, written submission, 2010 page 1 as cited from Australian Institute of Health and Welfare 2010. Adoptions Australia 2009-10. Child welfare series no. 50. Cat. no. CWS 38. CWS. Canberra: AIHW. 165 Australian Institute of Health and Welfare 2010. Adoptions Australia 2009-10. Child welfare series no. 50. Cat. no. CWS 38. CWS. Canberra: AIHW, pages iv, 46 and 49. 166 Adoption Act 1994 (WA). 167 Adoption Act 1993 (ACT). 168 Adoption Amendment (Same Sex Couples) Act 2010. 169 Adoption Act 1988 (Tas) s 20. 51 Social Development Committee of the South Australian Parliament Section 4 of the Adoption Act defines a ‘marriage relationship’ as ‘the relationship between two persons cohabiting as husband and wife or defacto husband and wife’. While the Act does not define husband or wife, it is likely that the statute would be interpreted according to the ordinary meaning of these terms thereby excluding adoption by same-sex couples.170 In her evidence, Ms Nancy Penna, Director Statewide Services, Families SA, summarised current South Australian adoption law: It is the definition of marriage under the act that determines whether same-sex couples can adopt. Currently as it stands, it is the definition of a marriage and the legal interpretation of that and its application that currently prohibits same-sex couples from adopting. That is the main point and it is based on the legislation and therefore, our service and our processes are based on that.171
The Inquiry heard that same-sex step-parent adoption in which one partner adopts the other partner’s child (usually from a previous heterosexual relationship) is also precluded under current South Australian adoption laws. 172
While the legislation does not allow same-sex couples to adopt, it does permit a single person to adopt, irrespective of sexuality. However, this is only in exceptional cases where the Court is satisfied that there are ‘special circumstances’ justifying the making of an adoption order.173
Given that some Australian jurisdictions do permit adoption by same-sex couples the Committee was interested to know how the laws of these jurisdictions interrelate with South Australian legislation.
During evidence presented by Ms Nancy Penna, Director Statewide Services, Families SA, the Committee raised a hypothetical example relating to New South Wales adoption laws. The Committee queried what would happen in a situation where a child, who was biologically related to one member of the couple, is adopted by the other. Specifically, the Committee wanted to ascertain the legal status of the adoption if the family in New South Wales moved to South Australia and the biological parent died.
According to Ms Penna, the legal adoption in New South Wales by a same-sex couple in such a situation would be recognised in South Australia. In relation to this example, the Committee expressed concern that current laws governing adoption are inconsistent in that same-sex couples or surviving partners and their children from New South Wales are legally recognised if they relocate to South Australia but are not permitted to adopt if they reside here.
On the question of whether South Australian law should be changed to allow same- sex couples to adopt children, Chancellor Cathy Whewell and Mr Damian Wyld, Catholic Archdiocese of Adelaide, spoke about the Catholic Church’s opposition to same-sex adoption and its belief that a child has a right to be raised by both a mother and a father.174 Chancellor Whewell told the Committee that if legislation was enacted
170 Families SA, written submission, 2010, page 3. 171 Ms Nancy Penna, oral evidence, Committee Hansard, 2010, page 91. 172 Dr Sonia Allan, oral evidence, Committee Hansard, 2010, page 9. 173Adoption Act 1988 (SA) s 12(3)(b). 174 Chancellor Cathy Whewell and Mr Damian Wyld, oral evidence, Committee Hansard, 2011, pages 179-180. 52 Social Development Committee of the South Australian Parliament to enable the State to decide whether children should be placed with a same-sex couple or a heterosexual couple the State would ‘have to have a very good reason to decide why a child would grow up without a father and a mother.’175
A contrary view was put forward by Ms Anne Burgess, Acting Commissioner for Equal Opportunity: in my view adoption should be approached purely as a question of child welfare, that is, a question of where the best interests of that child may lie. I suggest that the law should consider objectively the prospective parent’s fitness, ability and commitment to provide the care and nurture required by that particular child. I do not believe that the fact that a person may be homosexual or heterosexual has any bearing on that question.176
Intercountry Adoption Legislation According to Families SA, intercountry adoptions are governed by a range of mechanisms including: relevant state and territory adoption legislation; relevant Commonwealth legislation; the principles of the Hague Convention on Protection of Children and Co- operation in Respect of lntercountry Adoption; and the eligibility requirements for adoptive parents as established by the adoption authority in the country of origin (these include, but are not limited to the age of the parents, their marital status, family restrictions, fees and family origin).177
The Commonwealth Attorney-General's Department publishes information regarding countries participating with Australia in the intercountry adoption program.178 At present, all countries with which Australia has an intercountry adoption program exclude same-sex couples either expressly or due to a requirement that applicants must be married. For example, the adoption program information for China expressly states that applicants in ‘de facto or same-sex couples are not eligible’ whereas the adoption eligibility criteria for Hong Kong specifies that ‘applicants must be married for at least three years’.179
In evidence, Ms Nancy Penna, Director Statewide Services, Families SA, emphasised how same-sex couples are currently precluded from intercountry adoption: The main point … is that the countries that we adopt from actually set the rules and the regulations around the criteria for adoption. Presently, there are no countries that allow same-sex adoption for Australian citizens.180
175 Chancellor Cathy Whewell, oral evidence, Committee Hansard, 2011, page 182. 176 Ms Anne Burgess, Equal Opportunity Commission, written submission, 2010, page 2. 177 Families SA, written submission, 2010, page 4. 178 www.ag.gov.au/www/agd/agd.nsf/Page/IntercountryAdoption_Currentintercountryadoptionprograms 179 Refer to program information on China and Hong Kong at the above-mentioned website. Information accessed on 21/12/10. 180 Ms Nancy Penna, oral evidence, Committee Hansard, 2010, page 91. 53 Social Development Committee of the South Australian Parliament FOSTER CARING The foster care system provides ‘for the care of a child in a safe and stable family environment during any period while the child cannot, for any reason; remain within the care of his or her own family.’181 Foster care is one ‘out-of-home care’ arrangement in which children reside in the private home of a substitute family. The substitute family receives payments from the State to cover the costs incurred in caring for the child.182 The Inquiry heard that children can remain in the care of foster families for varying lengths of time. In its submission, Families SA provided information on the key South Australian legislation relating to provision of foster care: • Children’s Protection Act 1993 This Act provides for the care and protection of children. It includes provisions for children to enter the statutory care and protection system and covers the orders the Court may make in relation to the guardianship or custody of children. • Children's Protection Regulations 2010 under the Children’s Protection Act 1993 • Family and Community Services Act 1972 This Act promotes the welfare of South Australian families and the broader community and includes provisions for the establishment of support services for children, including foster care and licensed foster care agencies.183
Foster caring by same-sex couples in South Australia According to Families SA, the Family and Community Services Act 1972 and the criteria used by the Department to assess potential carers do not differentiate between same-sex couples and opposite-sex couples.184
Families SA also submitted that it ‘does not identify or differentiate between same- sex couples and other applicants in its application, registration or licensing processes and does not collect or report data relating to the sexual orientation or partnering of participants in the foster care program.’185 As such, the Department could not provide the Inquiry with any information regarding same-sex couples and foster caring. The Department's submission further explained that ‘same-sex couples approved to provide foster care are simply registered according to the type of care they may provide (for example, respite care, long term care) as with any other foster carer.’186
In their written submission, Dr Sonia Allan and Professor John Williams, Adelaide Law School, University of Adelaide, stated that even though same-sex couples are able to foster care under existing South Australian legislation, 'there is some anecdotal evidence that [they] have been discriminated against in some circumstances'.187 Furthermore, according to Dr Allan and Professor Williams, there is no 'clear statement in law protecting such carers from discrimination'.188 As such, they advocated that amendments be made to the Family and Community Services Act 1972
181 Family and Community Services Act s 40. 182 Australian Institute of Health and Welfare 2010. Child protection Australia 2008-09. Child welfare series no. 47. Cat. no. CWS 35. CWS. Canberra: AIHW, page 37. 183 Families SA, written submission, 2010, page 4 (some amendments have been made). 184 Families SA, written submission, 2010, page 5. 185 Families SA, written submission, 2010, page 6. 186 Families SA, written submission, 2010, page 6. 187 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 10. 188 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 10. 54 Social Development Committee of the South Australian Parliament (SA) to expressly prohibit discrimination against same-sex couples who apply to foster care.189
In a similar vein, Dr Damien Riggs, a researcher in the field of foster care in Australia, noted that while the South Australian laws governing foster care are similar to those established in all other states and territories and that none of this legislation prohibits same-sex couples from fostering, in his view it is still possible for discrimination to occur.
Dr Riggs explained that under the Family and Community Services Act, 1972, foster care applicants must be, among other things, assessed as ‘a fit and proper person to provide foster care’.190 According to Dr Riggs what ‘constitutes “fit and proper” will always be contingent upon the wider social context.’ He went on to discuss his research within the Australian context, including South Australia, which found that homophobic attitudes continue to exist amongst the social workers tasked with assessing foster care applicants and/or such applications.191 Dr Riggs advocated for existing legislation to be amended so that discrimination on the basis of sexual orientation is expressly prohibited and suggested that such a change should be accompanied by staff training and awareness.192
The Committee was concerned about the evidence it received which suggested that same-sex couples have been discriminated against in some circumstances and faced prejudicial responses by Departmental staff. During her appearance before the Inquiry, the Committee questioned Ms Nancy Penna, Director Statewide Services, Families SA, about this evidence. In response, Ms Penna told the Committee that she has not received any complaints from same-sex couples in relation to foster care: I am not aware of any cases. Often, when people have not been happy with either the information given by any part of the organisation or the service they have received, they will usually complain to the minister, the executive director or myself and we would investigate that. In the past four years that I have been in this role I have had no complaints in relation to same-sex couples either in their inquiry stage, their assessment stage or the way that they have been managed by non-government agencies, if a child has been placed.193
The Committee received many written submissions which argued that same-sex couples should be prohibited from adopting and/or foster caring for children. In the main, this position was justified on religious grounds or on arguments about what the writer perceived to be in the ‘best interests of children’.
Conversely, the Committee received many submissions arguing that same-sex couples should not be denied the opportunity of bringing a child into a caring and loving environment. The Committee received direct evidence from a same-sex couple who have lived together ‘as a committed couple for 12½ years’, who have previously been ‘long term foster carers’ and who currently ‘provide respite care for a 13 year old
189 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 25. 190 Family and Community Services Act 1972 (SA) s 42(ga). 191 Dr Damien Riggs, written submission, 2010, page 1. 192 Dr Damien Riggs, written submission, 2010, page 2. 193 Ms Nancy Penna, oral evidence, Committee Hansard, 2010, page 96. 55 Social Development Committee of the South Australian Parliament boy’. This couple provided the following summary of how they view current legislation relating to adoption and foster care: We have been approved foster carers in this state for over 8 years. There is great inconsistency in our being eligible to foster but not to adopt. We are either suitable to be parents/carers for children or not. If it is truly okay to discriminate against us such that we are not suitable parents to be able to adopt a child, then we should not be allowed to foster our community’s most vulnerable children. If, on the other hand, the fact that we are as capable parents as anyone stands, (some recent research suggests lesbian parents are even better parents than many) then not only should we be able to be foster carers, but also allowed to access adoption … just as any heterosexual couple is able.194
The Committee received a written submission from a same-sex couple who have been foster carers for three years. The couple described the stringent assessment and training they went through to ensure they were fit and proper carers: Becoming foster carers was not an easy feat. We endured 12 months of intense assessment and training with a strong focus on supporting children who have experienced trauma, grief and loss. Every aspect of our home environment, family life including our relationship, was placed under a microscope with every detail scrutinised. Three years after obtaining our registration, we have provided a loving, nurturing and safe environment for five children and currently provide respite care for two brothers. We have supported these two boys through placement transitions and have been the one constant in their lives. We have watched them develop, flourish and thrive.195
In contrast to some of the evidence submitted to the Committee suggesting that same- sex couples are negatively discriminated against in relation to foster care, the couple's submission suggested the opposite: During [the foster care] process, we often heard social workers state that the “gay community” are considered quite favourably within the alternative (foster) care system as we have often endured our own adversity and so are less likely to be judgmental of others and have a demonstrated level of resilience.196
The couple also stated that they ‘found it ironic and offensive’ that same-sex couples are ‘actively recruited to become foster carers’ but are discouraged from having their own biological children due to existing laws governing access to assisted reproductive treatment.197
194 Ms Sue McNamara and Ms Leanne Nearmy, written submission, 2010, page 4. 195 Name withheld (479), written submission, 2010, page 3. 196 Name withheld (479), written submission, 2010, page 3. 197 Name withheld (479), written submission, 2010, page 3. 56 Social Development Committee of the South Australian Parliament Committee Comment The Committee considers that South Australian laws relating to foster care and adoption are inconsistent. Under present law, same-sex couples are excluded from being able to adopt a child but are able to foster care. The Committee considers this situation to be both discriminatory and illogical.
While numerous submissions opposed adoption by same-sex couples, the Committee considers that the overriding criterion in relation to adoption is whether the prospective parents can provide the child with a loving and caring environment. As such, the Committee does not believe same-sex couples should be precluded from being eligible to adopt simply on the basis of their sexuality.
The Committee is of the view that same-sex couples should be subject to the same eligibility criteria as heterosexual couples. That is, all couples wishing to adopt should be carefully assessed against current criteria to establish their suitability to adopt. Any changes to adoption laws in South Australia need to ensure that same-sex couples also have equal access to step-parent adoption.
The Committee notes that the number of people who wish to be adoptive parents far outweighs the number of children who require adoption. It therefore considers that any reform in adoption laws should be undertaken in a way that does not create false hope for same-sex couples. Nevertheless, some evidence to the Inquiry suggests that the ability for same-sex couples to apply to adopt the biological child of the other party to that relationship is an important one and a change to legislation to allow this to occur is long overdue. The Committee notes, however, that even if legislation is amended to allow same-sex couples to be eligible to adopt under local adoption criteria, intercountry adoption will remain closed to them.
In relation to foster care, while current legislation in South Australia permits same-sex couples to foster children, some indirect evidence to the Inquiry indicated that problems exist in the acceptance and implementation of this legislation by those working in the field. The Committee considers that the State Government should make every effort to ensure those working in the area of foster care are fully cognisant of the legislation under which they operate.
RECOMMENDATION 4
Adoption The Committee recommends that the Minister for Families and Communities introduce legislation to amend the Adoption Act 1988 (SA) to: . extend eligibility for adoption to same-sex couples; and . ensure that same-sex couples are subject to the same stringent eligibility criteria that apply to opposite sex couples.
57 Social Development Committee of the South Australian Parliament RECOMMENDATION 5
Foster Care The Committee recommends that the Minister for Families and Communities take immediate steps to ensure that: . all staff, both government and non-government, involved in placing children in foster care are aware that under the Family and Community Services Act 1972 (SA) same-sex couples are eligible to foster care; and . assessment processes relating to foster care are implemented fairly and in a non-discriminatory manner.
SURROGACY In the context of childbirth, surrogacy refers to an arrangement in which a woman agrees to carry and bear a child for another person or couple and relinquishes the child at, or shortly after, birth. Two types of surrogacy arrangements exist: traditional and gestational.198
Traditional surrogacy refers to a situation in which a woman not only carries a pregnancy for another person or couple but also provides the ovum to create the pregnancy. This type of surrogacy requires no assisted reproductive technology as it can be achieved either by sexual intercourse or through artificial insemination.
Gestational surrogacy refers to a situation in which a woman carries a pregnancy for another person or couple but does not provide the ovum to create the pregnancy. This type of surrogacy cannot be undertaken without the use of assisted reproductive technology as it requires the creation of an embryo from the sperm and oocytes of the commissioning parents, or in some cases, from 'third party' sperm and/or oocyte donor material.
Until recently, surrogacy was illegal in South Australia. This illegality did not prevent South Australian couples wishing to pursue surrogacy from travelling to those interstate jurisdictions that permitted its practise.199
In November 2009, the South Australia Parliament passed the Statutes Amendment (Surrogacy) Act 2009 legalising altruistic gestational surrogacy in South Australia.200 This Act permits altruistic gestational surrogacy in South Australia but only to those who are ‘legally married’ or have been in a heterosexual de facto relationship for at least three years.201 Commercial surrogacy, in which the surrogate is paid, remains prohibited in South Australia.202
198 Background information about surrogacy is taken from the 26th report of Social Development Committee: Inquiry into Gestational Surrogacy, 13 November 2007. 199 See Social Development Committee Inquiry into Gestational Surrogacy. 200 It should be noted that traditional surrogacy, in which the surrogate mother is biologically related to the child, remains illegal in South Australia as does commercial surrogacy in which the surrogate mother is paid a fee. 201 See Statutes Amendment (Surrogacy) Act 2009 s 10HA(2)(b)(iii). 202 In May 2010, a further amendment to the legislation (Statutes Amendment (Surrogacy) Amendment Bill 2010) was introduced to extend the time those parents, who had already had children through altruistic gestational surrogacy, to apply to the youth court to have their details recorded on their child’s birth certificate. The amendment extends the time period by five years or to the child’s tenth birthday. 58 Social Development Committee of the South Australian Parliament Previous Inquiry into Gestational Surrogacy In order to understand the current legislative framework for surrogacy in South Australia, it is useful to consider the context in which it came about.
On 21 June 2006, the Hon. John Dawkins MLC introduced the ‘Statutes Amendment (Surrogacy) Bill 2006’ into the Legislative Council. The aim of the Bill was to address problems related to gestational surrogacy in South Australia. On 27 September 2006, on motion of the Hon. Ian Hunter MLC, the Bill was withdrawn and referred to the Social Development Committee for its consideration as part of a formal Inquiry.
In November 2007, the Social Development Committee tabled the report of its Inquiry into Gestational Surrogacy. This comprehensive report examined, among other things, the ways South Australian statutes might be amended to better deal with matters pertaining to surrogacy and the efficacy of surrogacy legislation in other jurisdictions. It also considered the status of children born through surrogacy arrangements interstate who relocate to South Australia. The report recommended that the state government prepare a bill to legalise gestational surrogacy and make the necessary changes to the birth certificate to ensure that the genetic parents, not the surrogate and her husband, are listed on the child's birth certificate.
The Social Development Committee report further recommended that the best interests of the child be paramount and that proper safeguards be established to protect all parties involved in surrogacy arrangements. The Committee did not support the restriction of gestational surrogacy based on discriminatory criteria such as marital status or sexual preference. Noting both the Pearce203 and McBain204 cases in which South Australian and Victorian legislation restricting assisted reproductive technology to married couples was rendered invalid; the Committee concluded that precluding same-sex couples from accessing gestational surrogacy may contravene anti- discrimination legislation.205
The government did not introduce a bill in response to the Social Development Committee’s report and recommendations. Accordingly, the Hon. John Dawkins reintroduced his bill in February 2008. Despite the findings of the Social Development Committee report regarding possible contravention of anti- discrimination legislation, the Dawkins Bill retained its restrictive provisions limiting access to gestational surrogacy to heterosexual couples.
In June 2008, the Hon Ian Hunter MLC moved an amendment to the Dawkins Bill in the Legislative Council. The amendment sought to allow anyone who has been in a domestic relationship, for a period of three years or more – including a same-sex relationship – access to gestational surrogacy. The intention of the amendment was to remove those aspects of the Dawkins Bill that were deemed discriminatory to same- sex couples. The amendment failed to gain majority support in the Legislative Council.206
203 Pearce v South Australian Health Commission (1996) 66 SASR 486. 204 McBain v State of Victoria [2000] FCA 1009. 205 Social Development Committee 2007, Inquiry into Gestational Surrogacy Report 26, Parliament of South Australia, 13 November 2007, refer to Executive Summary, page 2. 206 The amendments were negated with a majority. Legislative Council, Hansard, 18 June 2008. 59 Social Development Committee of the South Australian Parliament National Context At the national level, in March 2008, the Standing Committee of Attorneys-General began working on a national model aimed at producing consistent surrogacy laws across all Australian states and territories.207 While altruistic surrogacy arrangements are now legal in all Australian jurisdictions, only four jurisdictions – Victoria, Western Australia, Queensland and the Australian Capital Territory – have established provisions that enable the commissioning parents to apply for full legal parentage and be named on their child's birth certificate as parents regardless of their sexual orientation. No such provisions exist in South Australian legislation for same-sex couples.
Current Inquiry Overall, the current Inquiry received very little information on surrogacy. This is not surprising given that the 2007 Social Development Committee Inquiry into gestational surrogacy found that this type of intervention would not be a commonly performed procedure. Recent data confirms that surrogacy is rarely used as a medical procedure to achieve a pregnancy. According to the Australian Institute of Health and Welfare, in 2008 there were 16 pregnancies resulting in 8 live births from surrogacy arrangements in Australia and New Zealand.208
The Committee did receive one submission from an interstate male same-sex couple who had twin babies born from artificial reproductive technology using an egg donor and surrogate arranged by a clinic in India. The couple wrote about the ‘bureaucratic discrimination’ they experienced in not being legally recognised as parents or having their names listed on their children’s birth certificates.209 Notwithstanding this example, no other submissions were received from couples who had pursued surrogacy arrangements in any Australian jurisdictions.
Nevertheless, the Committee did receive some submissions that supported surrogacy for same-sex couples. Typically, these submissions noted that South Australia’s current surrogacy legislation was discriminatory on the basis of marital relationship.210 The Committee also received submissions that opposed changing the existing legislation to allow same-sex couples access to surrogacy. Typically, these submissions opposed same-sex parenting more broadly.211
Committee Comment The Committee received very little information on surrogacy. Evidence presented to the Inquiry suggests that surrogacy is not an intervention that is or is likely to be widely used.
207 A consultation paper, 'A Proposal for a National Model to Harmonise Regulation of Surrogacy', was released in January 2009. In November 2009, SCAG Ministers agreed to a set of draft principles upon which the model provisions to form the basis of surrogacy laws in Australia could be based. In May 2010, these draft principles provisions were referred to Health and Community Services Ministers for their consideration. See SCAG Meeting Outcomes at www.scag.gov.au/lawlink/SCAG/ll_scag.nsf/pages/scag_meetingoutcomes 208 Wang YA, Chambers GM, & Sullivan EA 2010. Assisted reproductive technology in Australia and New Zealand 2008. Assisted reproduction technology series no. 14. Cat. no. PER 49. Canberra: AIHW. www.aihw.gov.au/publications/per/49/11525.pdf page 4. 209 Trevor Elwell & Peter West, written submission, 2010, page 1. 210 For example, Flinders Reproductive Medicine and Fertility SA, written submission, 2010, page 2. 211 For example, Emmanuel Christian Schools & Ministries Inc, written submission, 2010; and Family Voice Australia (SA) written submission, 2010, page 6. 60 Social Development Committee of the South Australian Parliament The Committee affirms the findings and recommendations of the 2007 Inquiry into Gestational Surrogacy. It does not support the restriction of surrogacy based on discriminatory criteria, such as sexual orientation. As noted in the 2007 report, any provisions contained in surrogacy legislation which seek to restrict access on the basis of marital status may be vulnerable to legal challenge and ultimately be deemed invalid.
RECOMMENDATION 6
Surrogacy The Committee recommends that the Attorney-General introduce legislation to amend the Statutes Amendment (Surrogacy) Act 2009 (SA) to extend eligibility for altruistic gestational surrogacy to same-sex couples and ensure that they are subject to the same stringent assessment criteria that apply to opposite sex couples.
61 Social Development Committee of the South Australian Parliament 62 Social Development Committee of the South Australian Parliament SECTION FOUR: JURISDICTIONAL COMPARISONS
This section considers two of the Inquiry's terms of reference, namely:
. the relationship between state and federal legislation in recognising same-sex parents and their children, and . the experience and regulation of interstate and overseas jurisdictions in addressing issues relating to same-sex parents and their children.
The Committee received very little evidence on the laws regulating overseas jurisdictions. Accordingly, this section only contains a cursory examination of this topic.
It should also be noted that earlier sections of this report have provided comparative information about interstate jurisdictions and same-sex parents, particularly in relation to legal parentage and access to assisted reproductive technology. To sum up, South Australia is the only state in Australia that does not allow the female partner of a woman who has undergone a fertilisation procedure to be legally recognised as the parent of a child born through such a procedure. South Australia is also far more rigid in its approach to eligibility for assisted reproductive treatment. In relation to adoption, same-sex couples are prohibited from adopting children in South Australia but are able to do so in at least four other jurisdictions. Evidence to the Inquiry also indicated that South Australia is out of step with other jurisdictions in relation to surrogacy.212
LACK OF CONSISTENCY WITH COMMONWEALTH LEGISLATION The Committee received a number of submissions that expressed concern about inconsistencies between state and federal legislation as they relate to same-sex parents.
In its written submission, Let's Get Equal, a community-based organisation which advocates equal legal rights for same-sex couples, highlighted the amendment in 2008 of 85 federal laws to give same-sex couples the same legal rights and obligations as opposite-sex couples, particularly in relation to family law.
Among other things, as a result of these amendments: . a member of a same-sex couple is now eligible to receive child support from their partner if their relationship breaks down; . if a same-sex partner/co-parent dies, their spouse and child/ren is eligible to receive the same benefits from superannuation as other families; . the extended family members of both same-sex parents are now legally recognised as family members of their child/ren. For example, where a female co-parent is recognised as a parent because her partner is the child/ren’s birth mother, her father will be legally recognised as the child/ren’s grandfather;
212 Dr Sonia Allan and Professor John Williams, written submission, 2010, page 13. 63 Social Development Committee of the South Australian Parliament . the Australian Taxation Office now recognises same-sex de facto relationships and their child/ren and assesses them in the same way as are other family types; and . same-sex families are now protected from discrimination on grounds of ‘family responsibilities’, by the Sex Discrimination Act 1984 (Cth).213
In its submission, Let's Get Equal was critical of the inconsistencies between federal and state law: Subsequent to [the legislative changes at the federal level] … a non-biological co-parent in South Australia could be in a situation, after a relationship breaks down, where they have to pay child support federally while not having being recognised as a parent at all at state level.
And further: It is unquestionable that all jurisdictions in Australia at both state/territory and federal level have moved forward in removing discrimination against children and their parents, whilst South Australia has been left behind.
In her submission to the Inquiry, Ms Katherine Taylor described the legislative inconsistencies between federal and state as ‘unjust’ and ‘appalling’. She highlighted the inconsistencies in the following way: [The] federal government has introduced legislation that means for Family Tax purposes we are deemed a family yet as far as the South Australian government are concerned we are essentially two single women living together with our children. So the federal government receives the financial benefit of us being deemed a family yet we get absolutely no legal recognition from our state government.214
In her oral evidence, Ms Terri Mitchell-Smith, spokesperson, Let’s Get Equal, noted: Under South Australian legislation we now have the situation where a non-biological same-sex parent is recognised at the federal level but in South Australia the parent is not recognised and cannot be placed on the birth certificate. South Australia is the only state in Australia that does not recognise both parents. This has far- ranging consequences, including inheritance issues if the non- biological parent dies without a will. The non-biological parent cannot consent to emergency treatment—and in an emergency that could be a big problem. They do not have an entitlement to be a party to child protection hearings or to be present if the child is being questioned by police.215
And further:
213 Let’s Get Equal, written submission, 2011, page 12. 214 Ms Katherine Taylor, written submission, 2010 page 1. 215 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 1. 64 Social Development Committee of the South Australian Parliament If the biological parent dies, the non-biological parent will have to fight to keep custody of the child as they are not recognised as a parent at a state level. This would add further stress to a terrible time in a child's life, especially if the child is removed from the home and parent they know.216
Ms Mitchell-Smith further told the Committee that the federal and state inconsistencies also mean that in the event that a couple separates the non-biological same-sex parent is ‘liable to pay child support even though they are not recognised on their child's birth certificate’217
In her written submission, Ms Bronwen McClelland stated that inconsistencies between federal and state legislation were ‘confusing and unfair’. She outlined a number of examples related to her direct experience: I am assumed to have responsibility as a "step parent" for the support of my partner's 18 year old daughter (from a previous heterosexual relationship), despite having only known her for 3 years - but my partner is not considered a "parent" of the 8 week old son we jointly planned to have and who we will share care of for the whole of his life. It causes a great deal of distress to us that my partner was not able to be acknowledged on the birth certificate as his parent when, in every way, she functions as his mother, and feels that she is his mother.218
Ms McClelland concluded her submission with the following statement: We believe that our family is as valid and as important as any heterosexual family. As such, the laws of South Australia need to reflect this. Changing legislation to ensure that the rights of same- sex families are protected is an extremely important step. Doing so will not only bring South Australia into line with all other Australian states, and resolve anomalies between state and federal legislation, but it will, most importantly, safeguard the rights of children in same-sex families, who are as important as children born into [opposite] sex families.219
In its submission, the AIDS Council of South Australia also drew attention to the: many instances in which same-sex couples are being recognised within Commonwealth law (mainly for tax purposes and for access and eligibility to Centrelink benefits) while still being invisible or actively discriminated against in South Australian law.220
216 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 2. 217 Ms Terri Mitchell-Smith, oral evidence, Committee Hansard, 2010, page 2. 218 Ms Bronwen McClelland, written submission, 2010, page 1. 219 Ms Bronwen McClelland, written submission, 2010, page 2. 220 AIDS Council of South Australia, written submission 2010, page 9. 65 Social Development Committee of the South Australian Parliament OVERSEAS JURISDICTIONS The Committee received very limited information on overseas jurisdictions.
In their submission to the Inquiry, Dr Sonia Allan and Professor John Williams, Adelaide University Law School, drew attention to the ‘great number of jurisdictions in the United States’ that now recognise same-sex couples as parents. This submission also noted that:
. altruistic surrogacy is permitted in the United Kingdom and that all couples, irrespective of their sexuality, may apply for a parental order after the birth as long as they are in a stable relationship, the surrogacy arrangement is non- commercial in nature, and at least one of the couple has a biological link to the child; . England and Wales allow same-sex couples to apply for adoption; and . legislation in the United Kingdom provides for the legal recognition of the female partner of a woman who has undergone assisted reproductive technology as the parent of any child born as a result of that treatment.
Dr Allan and Professor Williams’ submission also referred the Committee to an occasional paper written by Dr Allan and Adjunct Professor John Seymour for the Victorian Law Reform Commission in 2004.221 The paper compares the laws regulating assisted reproduction, adoption and surrogacy in different Australian states, the United Kingdom, Canada and the United States of America. For a further discussion on the laws pertaining to same-sex couples in overseas jurisdictions, the Committee refers the reader to that earlier report.
Committee Comment A number of submissions to the Inquiry raised concerns about inconsistencies between state and federal laws as they relate to same-sex parents. The Committee shares these concerns and has made recommendations throughout this report to correct these inconsistencies, particularly in relation to legal parentage. To this end, the Committee also considers that any legislative changes must be matched with the development and implementation of an education strategy to ensure same-sex couples are fully aware of their rights and obligations.
RECOMMENDATION 7
Education Awareness Strategy The Committee recommends that the Attorney-General, in collaboration with the Minister for Health and the Minister for Families and Communities, develop and implement an education strategy to raise awareness of the rights and obligations of those directly affected by any legislative changes relating to same- sex parenting.
221 See Victorian Law Reform Commission (August 2004), ART, Surrogacy and legal Parentage: A Comparative Legislative Overview (Authors, Adjunct Professor John Seymour and Ms Sonia Magri (now Allan) at www.lawreform.vic.gov.au/wps/wcm/connect/Law+Reform/Find/Publications/ 66 Social Development Committee of the South Australian Parliament CONCLUSION
The Committee has spent many months hearing direct evidence from a wide range of individuals and groups about issues related to same-sex parenting. It is clear from the evidence received that there are divergent views on this issue. Notwithstanding this diversity of views, the reality is that many same-sex couples are already parenting children and others will continue to seek ways to achieve parenthood.
The Committee heard no persuasive evidence that children are disadvantaged by being raised by same-sex parents. Nor did it receive any compelling evidence that same-sex parents are unfit to care for children. It did, however, hear ample evidence from a significant number of same-sex couples whose lives and that of their children have been and continue to be adversely affected by current South Australian legislation.
The Committee was repeatedly told that South Australia, once considered a socially progressive state, now lags well behind other jurisdictions in the area of social reform. It is clear that in relation to legal parentage and access to assisted reproductive treatment services, South Australia will need to follow, rather than lead.
The Committee has concluded that removing existing legislative discrimination is an important step in creating an environment that fosters greater community acceptance for children of same-sex parents.
To this end, the Committee has put forward a number of recommendations that it considers will end discriminatory practices and remove anomalies that treat same-sex couples and their children as second-class citizens. To ensure these matters are expedited, the Committee instructed the Office of Parliamentary Counsel to draft legislation in line with its recommendations.
Hon Ian Hunter MLC Presiding Member
67 Social Development Committee of the South Australian Parliament 68 Social Development Committee of the South Australian Parliament APPENDICES
69 Social Development Committee of the South Australian Parliament 70 Social Development Committee of the South Australian Parliament APPENDIX A: STUDIES OF CHILDREN RAISED BY LESBIAN AND GAY PARENTS 1986-2006 Taken from the Victorian Law Reform Commission report Assisted Reproductive Technology & Adoption: Final Report 2007: Appendix 1 Table 1 p194.
Author & Year Topic Methodology Results Conclusions
Almack Lesbian couples’ Qualitative study of 20 lesbian 13 of 20 couples chose to make private Despite different entry points into (United reproductive two parent families where first arrangements with a known donor. motherhood and family formation, needs Kingdom 2006)1 decision-making and child conceived using donated Two key risks identified: known donors of the child are the over-arching priority understandings of sperm. seeking more involvement than agreed for lesbian mothers. the needs of the Interviews, with analysis based and potential claim by donor of legal child on socio-legal context. rights in relation to the child. Bailey, Bobrow, Sexual orientation of 55 gay or bisexual fathers (all Of sons whose sexual orientation could The large majority of sons of gay fathers Wolfe & Mikach adult sons of gay earlier married, 91% separated be rated with confidence, 91% were were heterosexual. (United States fathers or divorced) and 82 adult sons. heterosexual and 9% non-heterosexual. Any environmental influence of gay 1995)2 Sons aged 17–43. Sexual orientation was not positively fathers on their sons’ sexual orientation Interviews with fathers, mailed correlated with the amount of time sons was minimal. questionnaire for sons (43 and fathers lived together. replied). Bos, van Balen Planned lesbian 100 lesbian two-mother Happiness more important motive for Lesbian parents and heterosexual parents & van den Boom families: motivation families and 100 heterosexual lesbian social mothers than for fathers. ranked their parenthood quite similarly. (The to have children couple families. Well-being, identity development and Lesbian parents especially differed from Netherlands Lesbians conceived through DI social control less important motives for heterosexual parents in that their desire 2003, 2004)3 at a clinic or self-inseminated. lesbian social mothers than for fathers. to have children was stronger. Children aged 4–8 and all born Lesbian biological mothers and social Lesbian parents have spent more time into family of origin. mothers spent more time reflecting on thinking about their motives for having Questionnaires. decision to have children than children and their desire to have children heterosexual mothers and fathers. was stronger.
71 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
Planned lesbian Lesbian parents no less competent nor There were few differences between families: more burdened than heterosexual lesbian couples and heterosexual couples experience of parents. as parents, except that lesbian mothers parenthood, couple Both lesbian and heterosexual parents appear less attuned to traditional child- relationship, social consider it important to develop rearing goals and lesbian social mothers support and child- qualities of independence in their child, seemed to defend their position as rearing goals but ‘conformity’ as a child-rearing goal mothers more often. is less important to lesbian mothers. Lesbian social mothers feel they must justify the quality of their parenting more often than fathers. Bozett Social control 19 children aged 14–35, (13 16 of 19 children reported to have An exploration of children’s feelings as (United States strategies of sons females, 6 males) heterosexual preference. well as contact and support from other 1988)4 and daughters of gay representing 14 gay fathers Children employ range of social control gay fathers and children of gay fathers fathers Unstructured in-depth strategies: boundary control, may be a powerful way to reduce interviews. nondisclosure and disclosure. homophobia. Use of these strategies is influenced by perceptual, situational and maturational factors. Brewaeys, Child development Comparative study: 30 DC No significant differences in mother– The quality of couples’ relationships and Ponjaert, van and family children in families with child interactions, child’s perception of the quality of mother–child interaction Hall & functioning in lesbian mothers, 38 DC their parents or gender role did not differ between families of lesbian Golombok families with lesbian children in families with development. mothers and heterosexual parents. (Belgium/The mothers heterosexual parents and 30 TC Parent–child interaction with lesbian Boys and girls raised in lesbian mother Netherlands children of heterosexual social mothers was higher than for families were well adjusted in terms of 1997)5 couples. heterosexual fathers. emotional/behavioural development. Children aged 4–8. Social mothers were more involved with Gender-role development did not differ Interviews and questionnaires practical childcare activities and between children of lesbian mother to parents and psychological disciplining the child than heterosexual families and heterosexual parent
72 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
testing of child. fathers. families. Participants recruited through Lack of a genetic link did not influence Children’s own perception of parents clinics and hospitals in child’s feelings for the parent (lesbian or was similar in all family types—social Brussels. heterosexual). mothers in lesbian mother families were regarded as much as parents as fathers in heterosexual families. Dundas & Perceptions of 27 lesbian mothers and 20 Most (25) mothers were planning to tell Women who had negative early Kaufman mothers and children children (primarily conceived or had already told their children about homophobic memories seemed less (Canada 2000) 6 in lesbian parented by DI). their sexuality, as questions arose. comfortable and open about revealing families Children aged 0–12. All mothers planned to reveal all their sexuality to children. Of 17 fathers, 7 known (1 available information about donors to These same women also had poorer Toronto Lesbian donor/rest from previous children at an appropriate age. current functioning and depressive Family Study, Stage heterosexual relationships) and 8 mothers worried about lack of male symptoms. 1. 10 unknown. role models. Children were content with their family Questionnaires and semi- Children under 5 did not suggest having make-up and did not feel stigmatised by structured interviews with two mothers made their families having two mothers. mothers and verbal children. different. Longitudinal, qualitative and When asked, children conceived by DI quantitative data. said they had no father, or identified another important men in their lives as father figures. Flaks, Ficher, Comparative study 15 lesbian couples and their 3– Children of lesbian and heterosexual There was no empirical support for the Masterpasqua & of planned lesbian 9 year old planned children parents are remarkably similar, proposition that lesbian families should Joseph mother families and born via DC and 15 matched specifically in the areas of intellectual be treated differently from other families (United States heterosexual parents heterosexual parents and functioning and behavioural adjustment. in the legal arena. 1995)7 and children children. No gender differences were found Neither father presence nor parental Assessment measures to between the groups. sexuality was demonstrated to be crucial evaluate children’s cognitive Of the 24 comparisons made, 17 for healthy child development. functioning and behavioural favoured children of lesbian parents. Differences in parenting skills were
73 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
adjustment; parents’ Lesbian parents were more aware of related to parents’ gender rather than to relationship quality and skills for parenting and were superior in their sexual orientation. parenting skills. ability to identify critical issues in childcare situations than heterosexual parents. Gartrell, National Lesbian 84 families of children Stage 1 examined parental relationships, At Stage 1, prospective children were Hamilton & Family Study of conceived by DC (70 lesbian social supports, pregnancy motivations highly desired and thoughtfully Banks et al children born into couples, 14 single lesbians). and preferences, stigmatisation and conceived. (United States lesbian families 27 with known donors and 18 coping strategies. Mothers were strongly lesbian- 1996, 1999, with possibility of meeting 47% preferred sperm donors to be identified, had close relationships with 2000, 2005)8 donor after they reached 18. unknown, 45% elected to know identity, friends and extended family, had Participants self-selected. 8% expressed no preference. established flexible work schedules and Most participants did not expect were well-educated about potential children to have involved fathers difficulties of raising a child in lesbian 63% believed that children need good household. male role models. Stages 2 and 3 (children aged 2 and 5) Those co-mothers who had become legal focused on health concerns, parenting, adoptive parents of their children felt family structure, relationships, time that the adoption significantly enhanced management and concerns about the legitimacy of their parenting role. discrimination. After children were born, some mothers In 75% of two-mother families, mothers regretted having used unknown donors shared responsibilities of child rearing and felt sad about the lost opportunity and considered themselves equal co- for their children to know their donor parents. fathers. 69% found that having a child enhanced Children in continuous families at Stage their relationships with their parents. 3 had two actively-involved parents and By Stage 3, 31% of couples had split up. most were equally bonded to both Of 50 couples still together, 29 shared mothers.
74 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
child-rearing responsibilities equally, 17 By Stage 3, 63% grandparents were ‘out’ allocated more responsibility to birth about their grandchild’s lesbian parents. mothers and 4 allocated more In situations of separation, the birth responsibility to co-mothers. mother was more likely to retain sole or In 43% of cases, children of separated primary custody if the co-mother had not mothers spent equal amounts of time officially adopted the child. with both mothers. At Stage 4 (children aged 10) Children were uniformly positive in In social and psychological interviews conducted with children describing what is special about having development, the children were and standardised tests used to lesbian mothers. comparable to children raised in assess social and psychological Social competence and behaviour of heterosexual parent families. functioning children rated as normal. Children of unknown donors were 85% of children did well academically, indistinguishable from those of known 81% relating well to peers. donors in psychological adjustment. 57% of children reported being open Prevalence of physical and sexual abuse about having lesbian parent families, was substantially lower than US norms. 39% open to some, 63% open to grandparents. 27% of children with known donor had some contact. 43% of children reported they had experienced homophobia by age 10. None of the children had experienced physical abuse; 5% of girls had experienced sexual abuse. Gartrell, Rodas, National Lesbian At Stage 4, interviews conducted 30 couples had separated, 22 continuous Parenting was prioritised at the expense Deck, Peyser & Family Study of with birth mothers, co-mothers and co-mothers had adopted their children; 9 of other relationships and activities and Banks children born into single mothers separated co-mothers had their children; mothers led very child-focussed lives. (United States families with lesbian 7/9 then co-parented after separation. Continuous couples shared childrearing
75 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
2006)9 mothers 88% of birth mothers and 97% of co- responsibilities, domestic chores and mothers reported that their families of income earning. origin embraced the child. Co-parent adoptions have legitimised the Known donors generally not regular role of co-mothers, yet some mothers participants in family life. continue to feel jealous of the birthmother’s bond with the child. Gershon, Stigmatisation, self- 76 adolescents aged 11–18 A perception of greater stigma was Adolescents who perceived high stigma Tschann & esteem and coping years with lesbian mothers related to lower scores on self- had lower self-esteem even when they Jemerin among adolescent (67% born when in perception of social acceptance, self- had more effective coping skills. (United States children of lesbian heterosexual relationship). worth, behavioural conduct, physical Adolescents who disclose to more 1999)10 mothers Interviews and questionnaires, appearance and close friendships. people about their mothers’ lesbianism using standardised measures of Scholastic competence and athletic had higher self-esteem in the area of self-esteem and coping skills, competence were unrelated to stigma. close friendship. and adaptation of measures of stigma and disclosure. Golombok, Health and 30 families headed by lesbian No differences in mothers’ Mothers who were raising their child Tasker & wellbeing of mothers (from birth), 15 psychological state, children’s emotions, without a father were warmer and Murray children in fatherless currently single and 15 living behaviour and relationships. interacted more with their child, but also (United families with partners (10 since birth) Mothers in father-absent households reported more serious disputes with Kingdom 1997)11 and 42 families headed by expressed greater warmth than other children. single heterosexual mothers. mothers, and lesbian mother families in Absence of a father from birth does not, Control group of 41 particular showed greater interaction in itself, have negative implications for heterosexual couples with with their children. children’s psychological adjustment. children. Disputes between mother and child were Lack of differences between single and Children 3–9 years old. more severe in father-absent families. lesbian mothers suggests that sexuality Structured interviews and Children from fatherless families does not have a negative impact on child questionnaires for mothers; showed greater security of attachment development. ratings from school teachers; but also perceive themselves to be less testing of children. cognitively and physically competent
76 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
than their peers. Chan, Raboy & Family relationships 80 families, all conceived No significant differences in biological Children conceived via DI developed in Patterson and psychological children via same sperm bank mothers’ reports of wellbeing as normal fashion and their adjustment was (United States, adjustment of in California. function of relationship status (single or unrelated to parental sexual orientation 1998)12 children conceived 55 families headed by lesbian coupled) or as function of sexual or number of people in household. via donor parents and 25 headed by orientation. No significant differences in insemination with heterosexual parents; 50 Parental sexual orientation or household psychosocial adjustment, competence lesbian and couples and 30 single parents. composition was not associated with and behaviour problems between heterosexual mothers Children average age: 7. significant outcomes for children or children brought up by lesbian or Mailed standardised parents. heterosexual parents. questionnaires to parents and Parenting stress, love and conflict was Children’s wellbeing was more a teachers; children assessed associated with child adjustment. function of parenting and relationship using standardised Generally, all reporters (biological processes than a function of household psychological tests. mothers, non-biological parents and composition or demographic factors. teachers) agreed that children in all Parents who experience higher levels of family types were functioning well. parenting stress, inter-parental conflict, and lower levels of love for each other had children who had more behavioural problems. Golombok, Children from Children from 39 lesbian- No significant difference in parent–child Children raised by lesbian mothers Perry, Burston, lesbian-mother mothers (20 single, 19 couples) relationships, socio–emotional appeared to be functioning well and did Murray, families (28 children born into development, psychiatric ratings or not experience negative psychological Mooney-Somers heterosexual families). gender development. consequences arising from the nature of & Stevens Control group of 74 Lesbian mothers engaged in more their family environment. (United heterosexual couples and 60 imaginative and domestic play and less Findings suggest that the presence of Kingdom 2003)13 single heterosexual women smacking than heterosexual mothers. two parents, irrespective of gender, is Based on Avon Longitudinal Children from lesbian mother families associated with more positive outcomes Study of Parents and Children tend towards higher levels of peer for children. Mean age of children: 7 problems (as reported by mothers). Maternal sexual orientation is not a
77 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
Standardized questionnaires Children from single-parent families major influence on children’s gender and interviews. tend towards conduct problems (as development. reported by teachers). Green, Mandel, Comparative study 50 lesbian mothers with 56 No distinctions between groups in terms Girls and boys raised from early Hotvedt, Gray & of lesbian and children and 40 heterosexual of popularity, social adjustment or self- childhood by a lesbian mother without Smith heterosexual mothers mothers with 48 children. concept as male or female. an adult male in the household for about (United States and their children Most children born into two Daughters showed wider range of 4 years do not appear appreciably 1986)14 parent heterosexual families. gender-role behaviour than sons, but not different on parameters of psychosexual Children aged 3–11. beyond normal range. and psychosocial development from children raised by heterosexual mothers, Analysis of general Daughters of lesbian mothers were less also without an adult male present. intelligence, sexual identity, traditionally feminine in dress, play, gender-role preferences, family activity preferences and anticipated and peer group relationships occupation. and adjustment to single parent Boys in both groups are similar and family. quite traditionally masculine. Questionnaires and standard psychological tests. Henrickson Lesbian, gay and Based on data on parenting and Parents are more likely to be women, About one third of respondents had some (New Zealand bisexual people who children taken from Lavender over the age of 40, highly educated, and kind of parenting relationship to 2005)15 are parents Islands: Portrait of the Whole earn more than non-parents. children. Family national study of Respondents from urban centres The strongest predictor of becoming a lesbian, gay and bisexual significantly more likely not to have parent was whether they had a child people. children than those from non-urban prior to identifying as lesbian, gay or Included people who had had areas. bisexual. children in previous People from non-urban areas were The desire to reproduce and parent heterosexual relationships, significantly more likely to have given children among lesbian, gay and those who had children in birth to at least one child than those bisexual people may be quite separate same-sex relationships, single from urban areas. from the desire for a fulfilling parents, adoption and fostering. relationship with a partner.
78 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
Huggins Self-esteem of 36 adolescent children aged No significant statistical differences The mother’s sexual object choice did (1989 adolescent children 13–19 from 32 families with between the self-esteem scores of not appear to influence negatively the United States)16 of divorced lesbian divorced mothers, lesbian and adolescent children in the two groups. self-esteem of her adolescent children. and heterosexual heterosexual. Lower self-esteem is correlated with The assumption that children of lesbian mothers Use of Coopersmith Self- feeling negative about mother’s mothers are socially stigmatised by their Esteem Inventory assessment. lesbianism. mother’s sexual choice was not Both groups of children had a higher supported. self-esteem score if their mothers were living with a lover or were remarried. Father’s level of acceptance of mother’s lesbianism appears to have important influence on child’s acceptance. MacCallum & Health and 25 lesbian mother families and No group differences in mothers’ or Adolescent children raised in fatherless Golombok wellbeing of 38 single heterosexual mother children’s psychological state, mothers’ families did not suffer serious negative (United children raised in families. expressed warmth, children’s school consequences (social and emotional Kingdom 2004)17 fatherless families Children aged 12. adjustment or peer adjustment. development). from infancy Structured interviews and Mothers in father-absent families There were very few differences found questionnaires for mothers and showed higher levels of aggression between the two groups, apart from children; psychological tests during disputes (especially single higher levels of disciplinary aggression for children and ratings from mothers), and also reported more severe from single heterosexual mothers. teachers. disputes than other mothers. There was no evidence that a mother’s Follow up of Golombok et al., Adolescent children in father-absent sexuality influences parent–child 1997. (see above) families perceived their mothers to interaction. interact with them more and to be more In the absence of financial hardship, available and dependable. parental conflict or maternal psychiatric Boys in father-absent families expressed disorder in their early years, there was higher levels of femininity, but not no evidence that the absence of a father lower levels of masculinity.
79 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
per se necessarily results in psychological disadvantages for children. McNair, Report of Lesbian Study focusing on lesbian Lack of legal recognition as a parent Legal insecurity was the leading Dempsey, Wise and Gay Families parents’ health and medical (particularly towards non-biological challenge for lesbian parents, & Perlesz Project issues, parental relationships, mother) and lack of legal recognition as particularly the lack of access to assisted (Australia social acceptance and support. a family were reported as the most reproductive technology services in 2002)18 136 lesbian women with 115 frequent problems and created the most Victoria and the lack of legal recognition children (70 intending to difficulty in parenting. of the non-biological mother. parent, 71 with children). High level of knowledge about health, Parents experienced less discrimination Children aged 1–17. but low access to information for than prospective parents predicted, Anonymous mail-back conception. probably because they carefully chose questionnaire completed by one Children raised by lesbian parents were their professional and community of mothers in couples. well accepted by family and friends, and support networks. were reported as having few relationship Lesbian parents carefully considered difficulties overall as a result of their their children’s need to access parents’ sexuality. information about the biological father, High level positive peer relationships for safety in the conception process, optimal mothers. levels of contact between the father and Challenges included fears and children, and accessing the most experiences of community prejudice and supportive community and professional rejection by family. networks possible. Mercier & Lesbian-Parent 21 women representing 15 Most (80%) women said they had a Lesbian parents express concern about Harold Families and their families (all but 1 partnered), positive relationship with their their children’s experience in schools, (United States Children’s Schools with children aged 6m–17 (6 children’s schools, but nearly all particularly that of being different. 2003)19 attended preschool, 20 enrolled interviews revealed evidence of stress. Lesbian parents respond to these in kindergarten–grade 11). None of the negative experiences were concerns by selecting schools and Families formed in variety of related to the respondents’ sexual teachers known for multiculturalism and ways, including TC, orientation. openness to diversity, even when such DC,adoption, foster care and Nearly everyone who mentioned selection considerable effort or
80 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
guardianship. diversity suggested that schools that inconvenience. Semi-structured interviews, value diversity of any type are more Managing disclosure about sexual guided by principles of feminist likely to respond well to lesbian parent orientation was a primary issue for many epistemology. families. lesbian parents. Social invisibility, especially for non- biological parents, is a significant issue. O’Connell Impact of divorced In-depth study of 11 children, Findings indicate profound loyalty and Subjects had adjustment reactions like (United States mothers’ lesbianism whose mothers, either prior to protectiveness toward the mother, other children of divorced parents. 1993)20 on adolescent or post divorce, came out as openness to diversity, and sensitivity to The loss of the original family unit was children lesbian. the effects of prejudice. far more significant in the children’s Attention to adolescent Subjects reported strong needs for peer lives than the mother’s change in sexual developmental issues of peer affiliation and perceived secrecy orientation. affiliation and sexuality. regarding mother’s lesbianism as necessary for relationship maintenance. Patterson Child development, 66 lesbian mothers and their Both mothers’ and children’s adjustment Children raised by two women may have (United States maternal mental children (26 couples, 7 single fell clearly within the normative range greater awareness and expression of 1994, 1996)21 health and family mothers, 4 in joint custody and social and personal development emotional experience and increased functioning among between two mothers). among children was normal. openness to expression of negative as lesbian mothers and Children aged 4–9. Children reported greater reactions to well as positive feelings. their children Standardised questionnaires stress, as well as a greater overall sense There were significant associations completed by mothers and of well-being than children of between division of labour among Findings of Bay standardised tests for children, heterosexual mothers. lesbian couples and psychosocial Area Families Study including Children’s Self-View Lesbian couples reported that they outcomes for mothers and their children. Questionnaire, as well as open- divide household labour and family ended interview of children. decision-making relatively evenly, but Results compared with general biological mothers reported performing population. more childcare and non-biological mothers reported spending more time in paid employment.
81 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
Ray & Gregory School experiences 48 children, 39 with lesbian Parents were concerned that children Children of gay and lesbian parents were (Australia of children of lesbian mothers, 6 with gay fathers, 3 would be teased or bullied at school, that exposed to a high level of bullying and 2001)22 and gay parents with gay and lesbian parents. discussion of lesbian and gay families teasing. Children aged 5-18. would not be part of school or pre- Children chose silence in response to Mail-back questionnaire, school curriculum and that children bullying and use of homophobic interviews and focus groups would have to answer difficult language, and a general lack of with children; separate questions. understanding of gay and lesbian questionnaire for parents. 41% of parents of children in primary families. school and 17% of parents of secondary Secondary school children in particular school children reported no negative spend a lot of time avoiding being teased issues. or bullied and often go to great trouble to Disclosure of parent’s sexuality: 90% hide their parents’ sexuality. Prep–Grade 2, 61% Grades 3–6, 64% Many children felt unsafe at school and Years 7–10, 86% Years 11–12. were not confident in a teacher’s ability Presence of bullying: No bullying for to deal with the issues. Prep–Grade 2; 44% Grades 3–6, 45% Children affirm the advantages of having Years 7–10, 14% Years 11–12 bullied. lesbian and gay parents and enjoy being part of the gay and lesbian community. Sarantakos Education, family 174 children: 58 with Achievements of children varied with Children of married couples are more (Australia and social heterosexual married, 58 family type likely to do well at school, in academic 1996)23 development of heterosexual cohabiting and 58 Children of married couples achieved and social terms, than children of children of married homosexual (47 lesbian, 11 highest score in language, mathematics cohabiting heterosexual and homosexual heterosexual gay) parents and sport couples couples, cohabiting All children primary school age Children of homosexual couples Findings should be treated with caution heterosexual couples All children living with at least achieved slightly better in social studies because other factors than sexuality and and gay and lesbian one biological parent Children of homosexual couples were marital status may cause or contribute tto couples All children with homosexual reported to be more reserved and more trends parent were born into previous polite Family environments are instrumental relationship Girls of gay fathers were more boyish for development of attributes which
82 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
Information collected primarily and boys of lesbian mothers were more encourage educational progress and from teachers effeminate in behaviour social development Study measured academic Heterosexual parents (esp. married) had performance, social behaviour, greater ambition for their children. personality issues, school- Children of homosexual parents had related family issues more autonomy in personal life Tasker & British Longitudinal Longitudinal comparative study Almost all young adults were over 10 at Negative outcomes for children should Golombok Study of Lesbian of female-headed families: 27 time of mother’s main lesbian not be assumed on the basis of a (United Mother Families lesbian mothers and 27 single relationship. mother’s sexual orientation. Kingdom 1995, heterosexual mothers. Young adults who had been brought up All children had functioned well 1997)24 Study began in 1976–77 with in lesbian households described their throughout childhood and adolescence. follow-up in 1991–92. relationship with their mother’s partner Those raised by lesbian mothers 39 children in each group at significantly more positively than did continued to do so in adulthood and beginning; at follow-up, 25 those who had been raised by experienced no long-term detrimental young adults from lesbian heterosexual mothers. effects as adults, in terms of mental families and 21 raised by single Young people from lesbian mother health, personal relationships, or heterosexual mothers. families who felt less accepting of their relationships with peers or partners Most women had previously family during adolescence were more arising from their early upbringing. been in heterosexual likely to believe that their mothers had No significant difference was found relationship and most children been too open about their sexual identity between young adults from lesbian and had lived at least their first year in from of the adolescents’ peers. heterosexual parent backgrounds in the in a home with a father and In adulthood, young adults brought up quality of their current relationship with mother. by lesbian mothers were significantly their mothers and fathers. In initial study, average age of more positive about their mother’s non- Fear of peer group stigmatisation and the children was 9.5 years and at conventional relationships than those experience of being teased or bullied are follow up, average age 23.5 raised by single heterosexual mothers. central elements in how children feel years. 23 out of 25 young adults from lesbian about being brought up in lesbian mother Semi-structured interviews. mother families identified as families. heterosexual. Having a lesbian mother appeared to widen the adolescent’s view of what
83 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
constituted acceptable sexual behaviour to include same-gender sexual relations. Vanfraussen, Donor-conceived 37 children of lesbian mothers 38 children had told their peers that they Children were very selective when Ponjaert- children’s views on conceived of anonymous had two mothers; 21 said that people did choosing who to tell about their family Kristoffersen & growing up in donors (6 /24 families not understand it. structure. Brewaeys lesbian families separated) and 37 children of 24 children of lesbian parent families Children did not find it difficult to say (Belgium 2002)25 heterosexual mothers (6 and 21 children from heterosexual that they do not have a father; revealing couples separated). families experienced teasing; only spontaneously that they have two Children aged 7–17. children from lesbian parent families mothers was considered a more private Standardised questionnaire to mentioned family-related teasing. matter. parents on child’s wellbeing; No significant differences in children’s Almost all children are not inclined to separate interview with competence, child behaviour, tell people that their mothers had a mothers and children, and emotional/behavioural functioning. lesbian relationship. teacher’s reports. Children from heterosexual families Having two mothers was not an obstacle Follow up of Brewaeys et al., scored higher on externalising, to children inviting friends home. 1997 (above) aggressive and anxiety scales. There is no evidence to justify a decision Longitudinal study. Teachers reported more attention to exclude lesbian couples from DI problems amongst children from lesbian programs. mother families. Vanfraussen, Family functioning 24 lesbian parent families (6 Neither family type nor parental role The only difference between the two Ponjaert- in lesbian parent separated couples) and 24 influenced the evaluation of parent-child types of families was found at the Kristoffersen & families created by heterosexual parent families. interaction. parental level, where parents reported Brewaeys donor insemination, Average age of children: 10. All families recorded higher interaction that mothers in heterosexual parent 26 with attention to role (Belgium 2003) Parent-Child Interaction levels with daughters; gender difference families carried more parenting of social mothers Questionnaire, and interviews was more distinct in lesbian parent responsibility. with both parents and children. families. Lack of biological link between social Sample source: Brewaeys et Parents reported child activities were mothers and children did not prevent al., (1997) (see above) more equally shared in lesbian parent them taking on equal parenting households. responsibility.
84 Social Development Committee of the South Australian Parliament Author & Year Topic Methodology Results Conclusions
In heterosexual parent families, most In comparison to fathers, social mothers children discussed emotions with their are more involved in child activities and mothers. are as much a symbol of authority as fathers.
Wainwright, The psychosocial 44 children parented by same- No difference in psychosocial Adolescents were functioning well; Russell & adjustment, school sex couples (38 with lesbian adjustment, family and relationship adjustment was not linked with family Patterson experiences and mothers, 6 with gay fathers) processes or presences of romantic type, but was strongly associated with (United States adolescent sexuality and 44 children parented by relationships. qualities of relationships with parents. 2004)27 of children of same- heterosexual couples. Girls reported higher level of care from Adolescents of same-sex parents have sex parents Children aged 12–18. adults and peers than boys. romantic lives that are much like those Standardised questionnaire data Adolescents with same-sex parents were of other adolescents. and interview with children, more connected at school. Adjustment was clearly linked to the standardized questionnaire to Adolescents showed more favourable quality of family relationship. parents. adjustment when they perceived more Source: US National care from adults and when parents Longitudinal Study of described close relationships with them. Adolescent Health, national survey.
85 Social Development Committee of the South Australian Parliament ENDNOTES 1 Kathryn Almack, ‘Seeking Sperm: Accounts of Lesbian Couples’ 15 Mark Hen rickson, ‘Lavender Parents’ (2005) 26 Social Policy Journals Reproductive Decision-Making and Understandings of the Needs of of New Zealand 68. 16 Sharon Huggins, ‘A Comparative Study of Self-Esteem of the Child’ (2006) 20(1) International Journal of Law, Policy and the Adolescent Family 1. Children of Divorced Lesbian Mothers and Divorced Heterosexual Mothers’ (1989) 8(1–2) Journal of Homosexuality 123. 2 J Michael Bailey, David Bobrow, Marilyn Wolfe and Sara Mikach, 17Fiona MacCallum and Susan Golombok, ‘Children Raised in ‘Sexual Orientation of Adult Sons of Gay Fathers’ (1995) 31(1) Fatherless Families from Infancy: A Follow-Up of Children of Developmental Psychology 124. Lesbian and Single Heterosexual Mothers at Early Adolescence’ (2004) 45(8) Journal of Child Psychology and Psychiatry 1407 3 Henny Bos, Frank van Balen and Dymphna C van den Boom, ‘Planned Lesbian Families: Their Desire and Motivation to have Children’ (2003) . 18 18(10) Human Reproduction 2216; ‘Experience of Parenthood, Ruth McNair, Deborah Dempsey, Sarah Wise and Amaryll Couple Relationship, Social Support, and Child-Rearing Goals in Perlesz, ‘Lesbian Parenting: Issues, Strengths and Challenges’ Planned Lesbian Mother Families’ (2004) 45(4) Journal of Child (2002) 63 Family Matters 40.
Psychology and Psychiatry 755. 19Lucy Mercier and Rena Harold, ‘At the Interface: Lesbian-parent Families and Their Children’s Schools’ (2003) 25(1) Children & 4 Frederick Bozett, ‘Social Control of Identity by Children of Gay Fathers’ Schools 35 (1988) 10 (5) Western Journal of Nursing Research 550. . 5 Anne Brewaeys, I Ponjaert, E V van Hall and Susan Golombok, ‘Donor 20Ann O’Connell, ‘Voices from the Heart: The Developmental Insemination: Child Development and Family Functioning in Lesbian Impact of a Mother’s Lesbianism on Her Adolescent Children’ Mothers Families’ (1997) 12(6) Human Reproduction 1349. (1993) 63(3) Smith College Studies in Social Work 281. 21Charlotte Patterson, ‘Children of the Lesbian Baby Boom: 6 Susan Dundas and Miriam Kaufman, ‘The Toronto Lesbian Family Behavioral Adjustment, Self-Concepts, and Sex Role Identity’ in Study’ (2000) 40 (2) Journal of Homosexuality 65. Beverly Greene and Gregory Herek (eds), Lesbian and Gay Psychology: Theory, Research and Clinical Applications (1994); Charlotte Patterson, 7 David Flaks, Ilda Ficher, Frank Masterpasqua and Gregory Joseph, ‘Lesbian Mothers and Their Children: Findings from the Bay Area ‘Lesbians Choosing Motherhood: A Comparative Study of Lesbian and Families Study’ in Joan Laird and Robert-Jay Green (eds), Heterosexual Parents and Their Children’ (1995) 31 (1) Developmental Lesbians and Gays in Couples and Families: A Handbook for Psychology 105. Therapists (1996). 8 Nanette Gartrell, Jean Hamilton, Amy Banks, Dee Mosbacher, Nancy Reed, Caroline Sparks and Holly Bishop, ‘Interviews with Prospective 22Vivien Ray and Robin Gregory, ‘School Experiences of the Children Mothers’ (1996) 66(2) American Journal of Orthopsychiatry; Nanette of Lesbian and Gay Parents’ (2001) 59 Family Matters 28. 23Sotirios Sarantakos, ‘Children in Three Contexts: Family, Gartrell, Amy Banks, Jean Hamilton, Nancy Reed, Holly Bishop, Carla Education and Social Development’ (1996) 21(3) Children Rodas, ‘Interviews with Mothers of Toddlers’ (1999) 69(3) American Australia 23. 24Fiona Tasker and Susan Golombok, ‘Adults Raised as Children in Journal of Orthopsychiatry; Nanette Gartrell, Amy Banks, Nancy Lesbian Families’ (1995) 65(2) American Journal of Reed, Jean Hamilton, Carla Rodas and Amalia Deck, ‘Interviews Orthopsychiatry 203; Fiona Tasker and Susan Golombok, with Mothers of Five-Yea r-Olds’ (2000) 70(4) American Journal Growing Up in a Lesbian Family: Effects on Child Development of Orthopsychiatry ; Nanette Gartrell, Amalia Deck, Carla Rodas, (1997); Fiona Tasker and Susan Golomok (eds), Growing Up in a Heidi Peyser and Amy Banks, ‘The National Lesbian Family Study: 4. Lesbian Family (1997). 25Katrien Vanfraussen, Ingrid Ponjaert-Kristoffersen and Anne Interviews with the 10-Year-Old Children’ (2005) 75(4) American Brewaeys, ‘What Does It Mean for Youngsters to Grow Up In a Journal of Orthopsychiatry 518. Lesbian Family 9 Nanette Gartrell, Carla Rodas, Amalia Deck, Heidi Peyser and Amy Created by Means of Donor Insemination?’ (2002) 20(4) Journal Banks, ‘The USA National Lesbian Family Study: Interviews with of Reproductive and Infant Psychology 519. Mothers of 1 0-Year-Olds US’ (2006) 16(2) Feminism & Psychology 175 26Katrien Vanfraussen, Ingrid Ponjaert-Kristofferson and Anne Brewaeys, ‘Family Functioning in Lesbian Families Created by . Donor Insemination’ (2003) 73(1) American Journal of Orthopsychiatry 78. 10 Tamar Gershon, Jeanne Tschann and John Jemerin, ‘Stigmatization, Self-Esteem, and Coping Among the Adolescent Children of Lesbian 27Jennifer Wainright, Stephen Russell and Charlotte Patterson, Mothers’ (1999) 24(6) Journal of Adolescent Health 437. ‘Psychosocial Adjustment, School Outcomes, and Romantic 11 Relationships of Adolescents with Same-Sex Parents’ (2004) Susan Golombok, Fiona Tasker and Clare Murray, ‘Children Raised 75(6) Child Development 1886. in Fatherless Families from Infancy: Family Relationships and the Socioemotional Development of Children of Lesbian and Single Heterosexual Mothers’ (1997) 38(7) Journal of Child Psychology and Psychiatry 783. 12 Raymond Chan, Barbara Raboy and Charlotte J Patterson, ‘Psychosocial Adjustment among Children Conceived via Donor Insemination by Lesbian and Heterosexual Mothers’ (1998) 69(2) Child Development 443.
13 Susan Golombok, Beth Perry, Amanda Burston, Clare Murray, Julie Mooney-Somers, Madeleine Stevens and Jean Golding ‘Children with Lesbian Parents: A Community Study’ (2003) 39(1) Developmental Psychology 20. 14 Richard Green, Jane Barclay Mandel, Mary Hotvedt, James Gray and Laurel Smith, ‘Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children’ (1986) 15(2) Archives of Sexual Behavior 167 86 Social Development Committee of the South Australian Parliament APPENDIX B: BIRTH CERTIFICATE EXAMPLE
87 Social Development Committee of the South Australian Parliament 88 Social Development Committee of the South Australian Parliament APPENDIX C: FAMILY RELATIONSHIPS (SAME SEX PARENTING — RULES RELATING TO PARENTAGE) AMENDMENT BILL 2011 Draft for the Social Development Committee 10.5.2011 (2) South Australia A BILL FOR An Act to amend the Family Relationships Act 1975.
Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Amendment provisions Part 2—Amendment of Family Relationships Act 1975 4 Amendment of section 5—Interpretation 5 Insertion of section 5A 5A Meaning of de facto relationship 6 Amendment of section 6—All children of equal status 7 Amendment of section 7—Recognition of paternity 8 Amendment of section 9—Declaration of parentage 9 Amendment of section 10—Saving provision 10 Amendment of section 10A—Interpretation 11 Amendment of section 10B—Application of Part 12 Substitution of sections 10C, 10D and 10E 10C Rules relating to parentage 13 Amendment of section 10EA—Court order relating to paternity Schedule 1—Transitional provision 1 Immunity
The Parliament of South Australia enacts as follows:
Part 1—Preliminary 1—Short title This Act may be cited as the Family Relationships (Same Sex Parenting—Rules Relating to Parentage) Amendment Act 2011. 5 2—Commencement This Act will come into operation on a day to be fixed by proclamation. 3—Amendment provisions In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.
the Hon Ian Hunter MLC RE/BT 10.5.2011 4:18 PM 89 Prepared by Parliamentary Counsel Draft Family Relationships (Same Sex Parenting—Rules Relating to Parentage) Amendment Bill 2011 Amendment of Family Relationships Act 1975—Part 2
Part 2—Amendment of Family Relationships Act 1975 4—Amendment of section 5—Interpretation (1) Section 5—after the definition of child born outside marriage insert: co-parent, of a child, means a person who is taken to be a co-parent of the 5 child under Part 2A; (2) Section 5—after the definition of Court insert: de facto—see section 5A (3) Section 5, definition of father—delete "or natural father" (4) Section 5—after its present contents (now to be designated as subsection (1)) insert: 10 (2) A reference in this or any other Act to the mother, father or parent (however described) of a child will, unless the contrary intention appears, be taken to include a reference to a co-parent of the child (regardless of the sex of the co-parent). 5—Insertion of section 5A 15 After section 5 insert: 5A—Meaning of de facto relationship (1) For the purposes of this Act— (a) a de facto relationship is a relationship between 2 adult persons (whether of the opposite or same sex)— 20 (i) who cohabit as a couple; and (ii) who are not married to one another or related by family; and (b) a reference to a person's de facto partner is a reference to someone who cohabits with the person in a de facto 25 relationship. (2) In determining whether 2 persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: 30 (a) the duration of the relationship; (b) the nature and extent of common residence; (c) whether or not a sexual relationship exists; (d) the degree of financial dependence and interdependence, or arrangements for financial support; 35 (e) the ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life;
90 the Hon Ian Hunter MLC RE/BT 10.5.2011 4:18 PM Prepared by Parliamentary Counsel Draft Family Relationships (Same Sex Parenting—Rules Relating to Parentage) Amendment Bill 2011 Amendment of Family Relationships Act 1975—Part 2
(g) any domestic partnership agreement made under the Domestic Partners Property Act 1996; (h) any Part VIIIAB financial agreement made under the Family Law Act 1975 of the Commonwealth; 5 (i) the care and support of children; (j) the performance of household duties; (k) the reputation and public aspects of the relationship. 6—Amendment of section 6—All children of equal status Section 6(1)—delete "his natural father or mother" and substitute: 10 his or her mother, father or co-parent 7—Amendment of section 7—Recognition of paternity (1) Section 7(d)—delete "child." and substitute: child, (2) Section 7—after paragraph (d) insert: 15 and no other person is, under this Act, taken to be the father or co-parent of the child. 8—Amendment of section 9—Declaration of parentage (1) Section 9(1)(a)—after "father" insert: or co-parent 20 (2) Section 9(1)(b)—delete "and child exists between himself and a particular person" and substitute: or co-parent and child exists between that person and another person (3) Section 9(1)(c)—after "father" first occurring insert: or co-parent 25 (4) Section 9(1)(c)—delete "the relationship of father and child" and substitute: such relationship (5) Section 9(1)—delete "paternity" first occurring and substitute: parentage (6) Section 9(1)—delete "a declaration of paternity" and substitute: 30 such a declaration (7) Section 9(4)—after "father" insert: or co-parent 9—Amendment of section 10—Saving provision Section 10(d)—delete paragraph (d) and substitute: 35 (d) the operation of, or the consequences at law or in equity of an order under, Part 2A or 2B of this Act.
the Hon Ian Hunter MLC RE/BT 10.5.2011 4:18 PM 91 Prepared by Parliamentary Counsel Draft Family Relationships (Same Sex Parenting—Rules Relating to Parentage) Amendment Bill 2011 Amendment of Family Relationships Act 1975—Part 2
10—Amendment of section 10A—Interpretation Section 10A(1)—after the definition of married woman insert: qualifying relationship—a person is, on a certain date, in a qualifying relationship if he or she— 5 (a) is, on that date, in a de facto relationship; and (b) has been in that relationship continuously for the period of 3 years immediately preceding that date. 11—Amendment of section 10B—Application of Part Section 10B(4)—delete subsection (4) 10 12—Substitution of sections 10C, 10D and 10E Sections 10C, 10D and 10E—delete the sections and substitute: 10C—Rules relating to parentage (1) A woman who gives birth to a child is, for the purposes of the law of the State, the mother of the child (whether the child was conceived 15 by the fertilisation of an ovum taken from that woman or another woman). (2) If— (a) a woman becomes pregnant in consequence of a fertilisation procedure; and 20 (b) the ovum used for the purposes of the procedure was taken from another woman, then, for the purposes of the law of the State, the woman from whom the ovum was taken will be taken not to be the mother of any child born as a result of the pregnancy. 25 (3) If a woman who is legally married or in a qualifying relationship undergoes, with the consent of her husband or de facto partner (as the case requires), a fertilisation procedure in consequence of which she becomes pregnant, then, for the purposes of the law of the State, the husband or de facto partner— 30 (a) will be conclusively presumed to have caused the pregnancy; and (b) will be taken to be— (i) in the case of a husband or male de facto partner— the father; or 35 (ii) in any other case—a co-parent, of any child born as a result of the pregnancy. (4) If— (a) a woman becomes pregnant in consequence of a fertilisation procedure; and
92 the Hon Ian Hunter MLC RE/BT 10.5.2011 4:18 PM Prepared by Parliamentary Counsel Draft Family Relationships (Same Sex Parenting—Rules Relating to Parentage) Amendment Bill 2011 Amendment of Family Relationships Act 1975—Part 2
(b) a man (not being the woman's husband or, if she is in a qualifying relationship, her de facto partner) produced sperm used for the purposes of the procedure, then, for the purposes of the law of the State, the man— 5 (c) will be conclusively presumed not to have caused the pregnancy; and (d) will be taken not to be the father of any child born as a result of the pregnancy. (5) If a woman becomes pregnant in consequence of a fertilisation 10 procedure using the semen of a man— (a) who has died; and (b) who, immediately before his death, was the woman's husband, or was living with the woman in a qualifying relationship; and 15 (c) who had consented to the use of the semen for the purposes of the fertilisation procedure, the man— (d) will be conclusively presumed to have caused the pregnancy; and 20 (e) will be taken to be the father of any child born as a result of the pregnancy. (6) For the purposes of this section, a husband or de facto partner will, in the absence of proof to the contrary, be presumed to have consented to a woman undergoing a fertilisation procedure. 25 (7) This section applies in relation to a child regardless of when the child was born. (8) However, nothing in this section prevents a person becoming the mother, father or co-parent of a child in accordance with another provision of this Act, or any other Act or law. 30 Example— An order may be made by the Court under section 10EA or Part 2B Division 3 of this Act. 13—Amendment of section 10EA—Court order relating to paternity (1) Section 10EA(1)(c)(i)—delete "section 10D" and substitute: 35 section 10C (2) Section 10EA(1)(c)(ii)—delete "section 10E(2)" and substitute: section 10C(4) (3) Section 10EA(6)(a)—after "State—" insert: the person specified by the Court—
the Hon Ian Hunter MLC RE/BT 10.5.2011 4:18 PM 93 Prepared by Parliamentary Counsel Schedule 1—Transitional provision 1—Immunity Despite a provision of the Births, Deaths and Marriages Registration Act 1996, no liability attaches to a person for a failure to provide to the Registrar particulars of the person who is the father or co-parent of a child in the case where— (a) the child was born before the commencement of this clause; and (b) the person is only taken to be father or co-parent of the child by virtue of Part 2A of the Family Relationships Act 1975 (as amended by this Act).
94 Social Development Committee of the South Australian Parliament APPENDIX D: ASSISTED REPRODUCTIVE TREATMENT (ASSISTANCE FOR LESBIANS AND SINGLE WOMEN) AMENDMENT BILL 2011 Draft for the Social Development Committee 10.5.2011 (2) South Australia A BILL FOR An Act to amend the Assisted Reproductive Treatment Act 1988.
Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Amendment provisions Part 2—Amendment of Assisted Reproductive Treatment Act 1988 4 Amendment of section 9—Conditions of registration
The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Assisted Reproductive Treatment (Assistance for Lesbians and Single Women) Amendment Act 2011. 5 2—Commencement This Act will come into operation on a day to be fixed by proclamation. 3—Amendment provisions In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.
10 Part 2—Amendment of Assisted Reproductive Treatment Act 1988 4—Amendment of section 9—Conditions of registration Section 9(1)(c)(i) and (ii)—delete subparagraphs (i) and (ii) and substitute: (i) if, having regard to all of the circumstances of a particular woman, the 15 woman would be unlikely to become pregnant other than by assisted reproductive treatment;
the Hon Ian Hunter MLC RE/BT 10.5.2011 4:26 PM 95 Prepared by Parliamentary Counsel 96 Social Development Committee of the South Australian Parliament APPENDIX E: ADOPTION (SAME SEX PARENTING) AMENDMENT BILL 2011 Draft for the Social Development Committee 10.5.2011 (2) South Australia A BILL FOR An Act to amend the Adoption Act 1988.
Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Amendment provisions Part 2—Amendment of Adoption Act 1988 4 Amendment of section 4—Interpretation
The Parliament of South Australia enacts as follows:
Part 1—Preliminary 1—Short title This Act may be cited as the Adoption (Same Sex Parenting) Amendment Act 2011. 2—Commencement 5 This Act will come into operation on a day to be fixed by proclamation. 3—Amendment provisions In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Adoption Act 1988 10 4—Amendment of section 4—Interpretation Section 4(1), definition of marriage relationship—delete the definition and substitute: marriage relationship means the relationship between 2 persons cohabiting— (a) as husband and wife; or 15 (b) in a defacto relationship (within the meaning of the Family Relationships Act 1975);
the Hon Ian Hunter MLC RE/BT 10.5.2011 4:22 PM 97 Prepared by Parliamentary Counsel 98 Social Development Committee of the South Australian Parliament APPENDIX F: FAMILY RELATIONSHIPS (SAME SEX PARENTING — SURROGACY) AMENDMENT BILL 2011 Draft for the Social Development Committee 10.5.2011 (2) South Australia A BILL FOR An Act to amend the Family Relationships Act 1975.
Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Amendment provisions Part 2—Amendment of Family Relationships Act 1975 4 Amendment of section 5—Interpretation 5 Insertion of section 5A 5A Meaning of de facto relationship 6 Amendment of section 10HA—Recognised surrogacy agreements
The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Family Relationships (Same Sex Parenting—Surrogacy) Amendment Act 2011. 5 2—Commencement This Act will come into operation on a day to be fixed by proclamation. 3—Amendment provisions In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.
10 Part 2—Amendment of Family Relationships Act 1975 4—Amendment of section 5—Interpretation Section 5—after the definition of Court insert: de facto—see section 5A
15
the Hon Ian Hunter MLC RE/BT 10.5.2011 3:38 PM 99 Prepared by Parliamentary Counsel Draft Family Relationships (Same Sex Parenting—Surrogacy) Amendment Bill 2011 Preliminary—Part 1 5—Insertion of section 5A After section 5 insert: 5A—Meaning of de facto relationship (1) For the purposes of this Act— (a) a de facto relationship is a relationship between 2 adult persons (whether of the opposite or same sex)— (i) who cohabit as a couple; and (ii) who are not married to one another or related by family; and (b) a reference to a person's de facto partner is a reference to someone who cohabits with the person in a de facto relationship. (2) In determining whether 2 persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship; (b) the nature and extent of common residence; (c) whether or not a sexual relationship exists; (d) the degree of financial dependence and interdependence, or arrangements for financial support; (e) the ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life; (g) any domestic partnership agreement made under the Domestic Partners Property Act 1996; (h) any Part VIIIAB financial agreement made under the Family Law Act 1975 of the Commonwealth; (i) the care and support of children; (j) the performance of household duties; (k) the reputation and public aspects of the relationship. 6—Amendment of section 10HA—Recognised surrogacy agreements (1) Section 10HA(1), definition of prescribed relative—delete the definition and substitute: qualifying relationship—a person is, on a certain date, in a qualifying relationship if he or she— (a) is, on that date, in a de facto relationship; and (b) has been in that relationship continuously for the period of 3 years immediately preceding that date.
100 the Hon Ian Hunter MLC RE/BT 10.5.2011 3:38 PM Prepared by Parliamentary Counsel Draft Family Relationships (Same Sex Parenting—Surrogacy) Amendment Bill 2011 Preliminary—Part 1 (2) Section 10HA(2)(b)(iii)(B)—delete subsubparagraph (B) and substitute: (B) immediately preceding the date of the agreement, were in a qualifying relationship; (3) Section 10HA(2)(b)(v)—delete subparagraph (v) and substitute: (v) in the case of any female commissioning parent— (A) that commissioning parent is, or appears to be, infertile; or (B) there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to that commissioning parent;
the Hon Ian Hunter MLC RE/BT 10.5.2011 3:38 PM 101 Prepared by Parliamentary Counsel 102
Social Development Committee of the South Australian Parliament LIST OF WITNESSES The following individuals and organisations provided oral submissions to the Inquiry.
19 July 2010 Let’s Get Equal, Ms Terri Mitchell-Smith Dr Sonia Allen
13 September 2010 Flinders Reproductive Medicine/Fertility SA Ms Julie Potts, Counsellor
27 September 2010 Mr Owen Davis
18 October 2010 Assoc Professor Margie Ripper, Assoc Professor Dept of Women’s Studies, Flinders University
1 November 2010 Registrar of Births, Deaths & Marriages Ms Val Edyvean
Ms Sue McNamara and Ms Leanne Nearmy
15 November 2010 Professor Carol Johnson, Professor of Politics, University of Adelaide
Family Voice Australia Dr David Phillips, National President Mr David d’Lima, State Officer Mrs Roslyn Phillips, Research Officer
29 November 2010 Families SA Ms Nancy Penna, Director Statewide Services
AIDS Council of South Australia Mr Shane Dinnison, Chief Executive Officer Mr Richard Cannon, Senior Policy Analyst Ms Holley Skene, GMH Cultural and Social Educator
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Social Development Committee of the South Australian Parliament 6 December 2010 Ms Katherine Taylor
Ms Rachel and Ms Kimberley Newrick
7 February 2011 SHineSA Ms Kaisu Vartto, Chief Executive Officer Ms Anne Nixon, Manager Mr Desmond Ford, Manager
Australian Lesbian Medical Association Mr Katina Allan Dr Laraine Ruthborn Dr Liz Coventry
21 February 2011 Ms Bronwen McClelland & Ms Melina Magdalena
Ms Roxy Bent & Ms Margie Fischer
7 March 2011 Ms Jo and Ms Terri Mitchell-Smith
Dr Gretel and Ms Sheera Popperpng
21 March 2011 Catholic Archdiocese of Adelaide Chancellor Cathy Whewell Mr Damian Wyld
Dr Georgina Swift
4 April 2011 Presybertian Church – Church & Nation Committee Rev Damien Carson
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Social Development Committee of the South Australian Parliament LIST OF SUBMISSIONS The following organisations and individuals provided written submissions to the Inquiry.
Organisations
AIDS Council of South Australia Australian Family Association (SA) Australian Lesbian Medical Association Catholic Church Office, Archdiocese of Adelaide Children Youth & Women’s Health Service Church & Nation Committee, Presbyterian Church Equal Opportunity Commission Families SA Family Voice Australia Flinders Reproductive Medicine/Fertility SA Let’s Get Equal Campaign National Civil Council Registrar of Births, Deaths & Marriages Repromed Richard Hillman Foundation SHine SA YWCA
Individuals Ms Allison Abbott Ms Clare Andrews Ms Yvonne Ackland Mr Paul Angus Mr Peter Adams Ms Cathy Angus Ms Vicki Adcock Mrs Roslyn Argent Ms Tamsin Alford Samadhi Arktoi Ms Fay Alford Ms Judith Armstrong Dr Sonia Allan & Prof John Williams Ms Ann Arnott Mr Ken Allen Mrs Ruth Aubrey Ms Asha Allen Ms Barbara Ayris Ms Melissa Allsop Mr Andrew Badcock Mr Brian Ambrose Assoc Prof Barbara Baird Graham & Carol Anderson Mrs D Baker D, L & J Andrews Mr Allan Ball 105
Social Development Committee of the South Australian Parliament Ms Mae Bark Mr Ken Brookes Mr Edward Barnard-Brown Ms Sarah Brown Ms Michelle Barnden Mr Paul Bruggemann Mr & Mrs Barnes Ms Kathy Bryker Mr Roger Barns Ms Sandra Buckler Mr Danny Barrett Mr Peter Budimir Ms Fiona Barry Ms Laura Buick Mr Roly Bartlett Ms Amy-Grace Bulman Lou Bartley Mr Josiah Bulman T Bates-Brownsword Mr Andrew Bulman Ms Kate Bayly Ms Christine Bulman Ms Jan Bean Ms Jane Burden Ms Perry Beasley-Hall Julze Burgess Ms Imogen Behan Kim Burman Ms Tania Bellas Mr Christopher Burman Mr Nigel Benett Mr & Mrs Burnage Mr John Bennett Mr Garry Burns Ms Deborah Bennetts Ms Hillary Butler Ms Roxxy Bent Ms Christine Butler Ms Marion Bernhardt Ms Ruth Butler Ms Jessica Bernhardt Mr Jeffrey Byerley Mr Graham Berry Mr Graham Byrne Mr Antonio Bertemucci Ms Joanne Caire A Biro Ms Alison Cameron-Edwards J Bishop Mr Michael Camilleri Ms Anne Blakeway Ms Bethany Campbell Mr & Mrs Blight Ms Alexandrea Cannon A Boam Mr James Cash Ms Claire Boland Mr & Mrs Cash Ms Kellie Bone Shannon Castle Ms Veronica Bonst Ms Kerry Chambers Mr Paul Bonython Ms Myra Chenoweth Mrs Enid Boreham Ms Josie Cheyne Mr AM Bourne Chimwemwe Chikuse Mr Derek Bowyer Mr Simon Chipperfield Ms Letisha Bremner Ms Avis Clarke Ms Sharna Bremner Ms Danielle Clayton Mr Trevor Brinkworth Ms Rebecca Coe Mrs Christine Brinkworth Ms Margie Collins Mr Sean Brocklehurst Mrs Suzanne Cook FC Brohier Ms Prudence Cool 106
Social Development Committee of the South Australian Parliament Mr Robert Cotton Mr Ivor Dyall Mr Terrence Critchley Ms Lois East C Cronin Mr & Mrs Eden Ms Jessica Cronin Mr Greg Eden Ms Cathryn Crosby-Wright Mr Anthony Ellbourn Fr Paul Crotty Ms Lynn Ellison Ms Colleen Crowder Mr Trevor Elwell & Mr Peter West Ms Ariana Crowley Ms Mary Fahey Mr Rod Crown Ms Anita Fairney Mr Jon Dabrow Ms Dian Farand-Pluke Ms Margot Dalle-Nogare Mr Andrew Farrelly NT Daniel Ms Helen Farrelly Ms Bernadette Davies Mr John Farrelly Ms Louise Davis Mr Michael Feller Mr Owen Davis Mr & Mrs Ferguson Mr Trevor Dawes Ms Jemma Ferguson Ms Anthea Day Ms Alicia Fidock Ms Danzil de Bruyn Mr Dieter Fischer Ms Jade De Silva Ms Nicola Fitzharris Ms Miriam De Souza Mr Jeff Flint Mr Lindsay Dent Mr Luke Foale C&A Derrington Lyn Foley Mr & Mrs Devine Mr James Foley Ms Danielle Devine Mr John Foley Ms Margaret Dickson Lin Frahn Ms Melanie Dinning Ms Suzanne French Mr Shane Dinnison Mr Dyllan Frizell N&M Donato PK Furst Mr John Doubikin L Furst Ms Libby Dowling Ms Kathleen Gaffney Ms Deborah Dowsett Ms Nicole Gardner Mr Peter Doyle with Mr Erik Garkain M Doyle Ms Megan Gaukroger P Weam M Cotton Ms Lynette Geerling T Babinat Ms Karina Geytenbeek V Lovett Ms Joanne Giblin Ms C Angus Mrs Dawn Giddings E Doyle Dr James Giesbrecht Mrs Rosalie Duigan Ms Jessie Gilchrist Mr John Duncan Soren Gillett Sam Durham Ms Evie Glasgow Ms Michelle Duscher 107
Social Development Committee of the South Australian Parliament Ms Rosemary Goodwin Ms Simone Heeps Ms Emma Gould Ms Jennifer Hein Ms Lily Gower Ms Clare Heiss Ms Tahnee Granger Ms Megan Henderson A, L, T&J Granger Mr & Mrs M Hennessey Mr Ian Granger Ms Meredith Hennessy Mr Dane Granger Mrs Marjorie Hicks Ms S Grbich Ms Sandra Higgins Mr Peter Greeneklee Ms Laura Higgins Ms Karen Gregg Mr Andrew Hill Ms Rene Greije Ms Fiona Hill Mr & Mrs Grice Ms Alice Hingston Chris Groom Sasha Hobby Ms Anne Haddard Mr Max Hodby Mr Daniel Hall E Hodgers Mr David Hall Mr Stephen Hodgson Mr Derek Hall Ms Lynne Hoet Mr & Mrs Hall Ms Margaret Holder Mrs Margaret Halton Ms Sunee Holland Mr Bruce Hambour JA Holland Mr Ian Hammond Mr M & Mrs S Holland Mr David Hampton Mr Luke Holland Mr Richard Hancock Mr Brett Homes Mr Peter Hannan Mrs FM Hone Ms Caroline Hannessen Mr Brenton Honeychurch Ms Jennifer Harders Ms Genevieve Honner Ms Natalie Harkin Ms Margie Hookway Ms Alicia Harland Mr Greg Hookway Mr Matthew Harris Ms Bethany Hookway Mr Adam Harrison MB Hookway Dr Jo Harrison Ms Brighid Hookway Mr & Mrs Harvey Mr & Mrs Horscroft Mrs Gillian Haslam Ms Ann Horskins Mr Jamie Hatchard Ms Miranda Howard Mr Richard Hawke Ms Melanie Huddleston Mr & Mrs Hayek Mr Calum Hurley Ms Joanne Hayhurst Ms Tracey Hutchings Mr Neil Hayter Rev Luke Hutchinson Fr Adrian Head Mr David Hutchison Ms Georgia Heath Ms Amy Hutchison Ms Kathryn Heathfield 108
Social Development Committee of the South Australian Parliament Ms P Irra with M Lauret Ms D Whyte Mr Tony Lawry Ms S Dunn Ms B Sherlock Ms Barbara Leake Ms P Donato Mel Leckie Mr Alex Jaeger Mr Ray Ledger Ms Miriam Jaeger Mr Jordan Lee Mr Tim Jaeschke Mr Brent Leideritz Ms Tina James-Freeman Ms Adele Lenz Jo James-Freeman Mrs Elise Leonard Mr Peter Jans Mike & Helen Leske Ms Larissa Jennings Mr Rod Lewis Hon Tammy Jennings MLC Mr Dennis Liddicoat Rev Leanne Jenski Ms Louise Lindon Ms Arwenna Johns Mr Aaron Lindsay Prof Carol Johnson Ms Kayla Litchfield Ms Leticia Johnson Ms Margaret Lloyd Ms Trisha Jones Ms Lindsay Lockwood Mr Greg Jones Mr Wayne Loechel Mrs Gwen Jones Mr Tom Lowe Ms Edwina Keelen B Lungora D&A Keenan Ms Rose Luppino Ms Val Kelly Ms Ashleigh Lustica Mr John Kelly Mrs D Lydeamore Mr Dermott Kelly J Lynch Mr Mike Kemp Mr Kevin Maczkowiack Pastor Wayne Kerber Ms Mary Maddern Ms Theresa Kerin Ms Melina Magdalena Mr David Kidd Mr Bernard Magean Mr Matt Kilgariff Kris Majors Pastor Noel Kluge Ms Kylie Malota Ms Rebecca Knight Ms Trudy-Ann Mansell Ms Sarah Knight Martyn & Kerryn Manuel Ms Emma Knight Ms Shana Manukonga R&K Korte Ms Ioana Maritiu Mr & Mrs Kowald Ms Rebecca Mars H Kraemer Mr Jack Martin Mrs Ose Kruger Mr R Martin Mr Hans Kruger R Mastaky Ms Claire Lace Mr Peter Matthews Mr Ted Lang Mr & Mrs D Mattiske Mr Guy Langham Ms Stacey Mattsson 109
Social Development Committee of the South Australian Parliament Mr Christopher Maynard Ms Tara Morgan PA McArdle Rohan Morris Ms Genevieve McCabe Mr Brian Morris Ms Gweneth McCallum Ms Diedre Morrison Mr David McCappin Ms Nikki Mortier Ms Bronwyn McClelland Mr John Moylan Wilga McElroy Mr Anthony Mulhira Mr Dan McGee Ms Sarah Mulholland Mr Scott McGuinness Ms Jess Muller Ms Lisa Mcinnes Mr Bradley Mumford PG McInnis R&B Munchenberg Mrs Maureen McKenzie R Mundie Mr Jarad McLoughlin Jo Munneke Ms S McNamara & Ms L Nearmy Dr R Ian Murdoch Ms Samantha McPherson Ms Allisa Murphy Mr William McRostie Ms Helen Murray Mr Frank Meaney Mr Kevin Musolino Ms MR Meek P&M Mutton Alex Meldrum Mr Jim Natt GH & M Michaelis Ms Lauren Naulty A Migliore with Ms Kristie Naylor M Migliore Ms Shelley Neller C Migliore P Migliore W Nelson M Migliore Mr Rod Nes Prof Jenni Millbank J Neubauer R & RJ Milchard Ms Gail Newman Ms Mary Miller R&K Newrick PE & JJ Miller Ms Wendy Newrick Mr Allan Millhouse Ms Sally Nguyen Ms Amy Marie Milne Minh Nguyen Ms Annette Mitchell T&J Nicholls Ms Irene Mitchell Ms Joanne Nicholson Ms J& Ms T Mitchell-Smith Earanee Niedzwiecki R Modra Mr Rod Niejalke Ms Kerry Molineux Ms Anne Nixon Mr Peter Molineux Shannon Nofolk RP & YM Mooney Ms Lyndal Nonyane Ms April Mooney Ms H Noone with Ms Catherine Moor J K Kalendra G L Seaforth Mr Kevin Moore D O'Dwyer Mr Stephen Morgan Mr Stefan Norman 110
Social Development Committee of the South Australian Parliament Ms Heather Norrie Mr Liam Rabone Mr David Norris Mr Mark Ramsey Ms Janet Norris Ms Jenny Rawat Ms Dorothy Noskovic Ms Mereditch Resce Keenan Nunes-Vaz Mr Malcolm Reynolds Ms N Nyback Mr John Ridley Mr Peter O'Brien Ms Alison Ridley S M O'Dwyer with Dr Damien Riggs E Vaccaro Ms Heide Rilstone D Donald Y Hayek Ms Shelly Ringrose Angas Oehme Aixa Rivera-Rios Mr Thomas O'Leary Adjunct Prof Margie Ripper Ms Donna Opie Ms Marisa Rivish Ms Karen Orchard Mr Ben Roberts Ms Jessica Owen Ms Belinda Robertson Ms Julie Owen Ms Sylvia Robinson Ms Barb Page Mr Gabriel Roccisano AM Payne Mr Russell Rockliff Mr Adam Pearce J Rodrigues JK Pearce Mr Lionel Rodrigues Ms Lynda Pearl L G Rodriguez Mr Les Penaluna Ms Izzy Rositano Ms Karen Penny A&C Rowe Ms Jeanette Pereira-Rossamai Ms Jenny Roy Ms Fay Petre Ms Stacey Roy Ms Ellen Pettingill Yog Rujcchurel Ms Margaret Peucker M Russell Mr & Mrs Pfitzner Mr Cosimo Russo Phuong Phan Mr Stefan Russo Mea'eshana PhoenixFIre Ms Evenia Sach Ms Georgianna Pinmill Ms Stina Sanchez Dr Robert Pollnitz Mr & Mrs Sandison Dr Gretel & Ms Sheera Popperpng M Sands Mr Jethro Poole-Knight Rev Karyn Sands Ms Amanda Pope Mr Robert Sands Mr Matt Potter Ms Kathryn Sargent Mr Richard Pratt Mr Joseph Scerri Ms Jessica Pritchard Ms Katrina Schafer Mr Trevor Puckridge Mr Todd Schild DW & JM Puckridge R Schink Mr Ian Purcell Mr Aaron Schintler 111
Social Development Committee of the South Australian Parliament B Scholar Mrs Kerri Songailo CJ Scholar L Sonigg Ms Pauline Schooline Mr Daniel Spaeth Mr John Schwerdt Ms Hayley Sparshott Ms Anastasia Scotland Mr Wayne Spencer Ms Jenny Scott Mr Leonard Spencer Dr Derrick Selby H&E Stabler Mrs Sarah Sellers Mr Sev Standish Ms Patricia Sexton Ms Mary Standish Ms Pamela Shearer Mr Joseph Stephen Mr John Shenton Mr John Stephens Mrs Mandy Shepherd Mr Donald Stokes Mrs Anna Shepherd Mr Allen Stribling Mr Daniel Shepherd Mr Paul Stuart Mr Walter Shigrov Hon Dr Bob Such MP Ms Rachel Shipard Ms Emma Summerton Mr Mark Shire Dr Georgie Swift Mr Finn Siegmann Jo Swift Ms Carolyn Simmons Mr Waldo Swoboda Ms Vanessa Simone Marian Szablewski Ms Yllana Simunsen Ms Gillian Taggart Ms Nicole Skelley Mr Brendan Taggart Ms Tahlia Skelton Ms Cara Taheny Ms Peta Skujins Mr Alec Talbot J&C Slagter Ms Sharon Taylor Ms Lucy Small-Pearce Ms Katherine Taylor Mr Graeme Smith Mr Rob Taylor Mr Ross Smith Dr Brian Taylor Ms Caitlyn Smith Ms Cynthia Taylor Mr Stephen Smith Ms Christina Teo Ron & Kathy Smith Ms Alicia Thomas Mr Darren Smith Mr Scott Thomas Mr SJ Smith Mr Bruce Thompson Anthony & Sue Smith Ms Elise Thomson Ms Clare Smith Chris Tirimacco Ms Angel Smith Ms Becky Tolhurst Ms Lisa Smith Ms Ruth Trinkle Mr Jeffrey Smith Mr Tim Trudgen Mrs BM Smith Mrs Norma Trueman Ms Hayley Smith Ms Blanka Tuchyna Mr Peter Songailo ML Tucker 112
Social Development Committee of the South Australian Parliament Ms Simone Tur D&J Wilson Ms Rachael Turner Ms Judi Wilson Mrs RG Udy Mr Matthew Winefield Mr Terry Udy Ms Sarah Wishart Mr James Umpherston V Wolfenden Ms M Van de Loo Ms Amanda Woodard A&P van der Arend Mr Michael Woodley Mr Jan Van Pamelen Mr Philip Wyld Ms Rebecca Van Schuilenburg Ms Joyce Wyld Mr Ernie Van Stralen Mr John Wynter Mr Joseph Van Strijp Mr Peter Wyten Ms Angela Vause Chris Yip Ms Gabriella Vikor Ms Michelle Yip Mr Oskar Vikor Mr Mat Youings Ms Kathleen Vincent-Lucas Ms Cynthia Zacest Ms Julie Viney Mrs Liz Zarlenga Mr Jason Virgo Mr Frank Zerna Ms Sonja Vivienne M&E Ziegelmann Ms Leonie Voigt Mr Simon Ziembicki L Vondon Ms Louise Zollo Ms Val Vowles H&A Zwaans Ms Sandra Wagner Ms D'anah Wallace Mr Adam Walsh Mr Keith Ward IL Wardle A Wardle Mr R& Mrs B Washington Ms T Wassall Ms Sarah Watson Ms Rachel Webber Mr Brian Wheeler Janne White Mr Daniel Wilkinson Ms Rosemary Williams Ms Tracy Williams Mr Steven Williams Mr Blair Williams Ms Jodie Willman Mr Brett Wilmott Ms Juania Wilson 113
Social Development Committee of the South Australian Parliament