LGBTIQ families are diverse and are becoming more visible. The information below applies to a range of LGBTIQ family structures, which involve a birth parent, a co-parent and a sperm donor. Some examples are:

  • two lesbians and a sperm donor;
  • a transgender man and his partner and a sperm donor;
  • two people of diverse gender identity and a sperm donor;
  • a transgender woman and her partner and a sperm donor;
  • an intersex person and their partner and a sperm donor; and
  • a gay couple, an egg donor and a surrogate.

Can the birth parent's partner (co-parent) be recognised on a child's birth certificate?

A birth parent's partner can be recognised as the second parent on the birth certificate of a child born in NSW. For the partner to be recognised on the birth certificate:

  • The couple must have been living in a de facto relationship or have registered their relationship at the time of conception;
  • The child must have been conceived by an insemination or IVF procedure using donor sperm; and
  • The co-parent must have consented to the procedure that led to their partner's pregnancy.

Is the process different for obtaining a birth certificate for LGBTIQ parents?

When your child is born, most hospitals in NSW will provide you with a 'parenting kit' that contains all of the required forms for birth registration, obtaining a birth certificate, Centrelink, etc. There is currently no kit for LGBTIQ parents and most of the forms still refer to 'mother' and 'father'. However, the 'Same Sex Parents Birth Registration Statement' may be given to you at the hospital or ordered over the phone from the NSW Registry of Births, Deaths and Marriages. For more information go to www.nsw.gov.au/topics/name-changes-and-corrections/add-a-parent-to-a-birth-registration. It is recommended that you obtain a form at the earliest opportunity.

The registration form must be signed by someone who witnessed the birth (other than the parents). This will generally be the doctor who delivered the child or another member of the medical staff. Unless you have a private obstetrician there may be administrative difficulties in having the form signed once you leave the hospital.

What if our child was born before November 2008?

If your child was born before November 2008, you can apply to have the birth register amended and a new birth certificate issued listing the other co-parent.

For the partner to be recognised on the birth certificate:

  • The couple must have been living in a de facto relationship or have registered their relationship at the time of conception;
  • The child must have been conceived by an insemination or IVF procedure using donor sperm; and
  • The co-parent must have consented to the procedure that led to their partner's pregnancy.

An 'Adding a Mother's Details to a Birth Registration' form can be located on the NSW Registry of Births, Deaths and Marriages website or ordered over the phone. For more information go to www.bdm.nsw.gov.au/Pages/births/births.aspx

What if the donor is registered on the birth certificate as a parent?

If the donor is registered on the birth certificate, you should also include a statutory declaration written by the donor when submitting an 'Adding a Mother's Details to a Birth Registration' form to the NSW Registry of Births, Deaths and Marriages. In thestatutory declaration, the donor should write that;

  • they are the donor;
  • the child was conceived through an insemination or IVF procedure; and
  • they consent to the removal of their name from the birth certificate.

What if the donor won't consent to being removed from the birth certificate?

If the donor will not consent to being removed from the birth certificate, you will need to get a declaration of parentage ('declaration') from the District Court of NSW stating that the donor is not the parent of the child. In deciding whether to make a declaration, the Court will look at the evidence and determine how the child was conceived. If the Court finds the child was conceived through an insemination or IVF procedure, it will make a declaration that the donor is not the legal parent. If it finds the child was conceived through heterosexual sexual intercourse, a declaration will be made that the donor is the legal parent.

The case of AA v Registrar of Births, Deaths and Marriages and BB (2011) demonstrates that a donor will not be the legal parent of a child conceived through insemination under NSW law, even if they are listed on the birth certificate. In this case, a lesbian co-parent applied to the District Court to be listed on her daughter's birth certificate. The sperm donor, who had ongoing involvement with the child, did not consent to having his name removed from the birth certificate. The judge ordered that the donor's name be removed and the birth parent's partner be registered as the child's legal parent.

Will we need to get a parenting order?

Prior to changes to NSW and Federal law recognising LGBTIQ parents in 2008, many couples applied to the Family Law Courts for a parenting order. This order gave parental responsibility to both parents, and was useful when engaging with institutions such as schools and hospitals.

Since 2008, parents in LGBTIQ relationships who are recognised as legal parents have all the same rights and responsibilities as different sex parents in heterosexual relationships. Because a birth certificate can be used as evidence of parental status, a parenting order will not be necessary where both birth parent and co-parent are named on the certificate.

However, if there are difficulties relating to a child's education or medical care, LGBTIQ parents can apply to the Family Law Courts for an order by consent stating that the parties have parental responsibility for the child. In granting an order of this kind in Maurice v Barry (2010), the judge remarked that it was largely unnecessary due to the legal presumption that a birth parent's de facto partner is a parent of their donor-conceived child.

What if we have separated and are both still parenting the child?

If you have separated from your partner, you can still apply to the NSW Registry of Births, Deaths and Marriages to have your name recorded on your child's birth certificate. The birth parent must consent to the change. If the birth parent will not give their consent, you will need to obtain an order from the Family Law Courts stating that you are the child's legal parent.

In Dent v Rees [2012] a mother made an application to the Federal Magistrates Court (now the Federal Circuit Court) to change the birth certificates of the three children of the 17-year same sex relationship. The same unknown donor was used for all three children and at the time the children were born the law did not recognise two women could be named on birth certificates. Only the birth parent of each child was named on the child's birth certificate. One child was genetically related to one mother, and two children were genetically related to the other mother. The court ordered the Registrar of the NSW Registry of Births, Death and Marriages to alter the birth certificates of the three children to record both mothers as the parents on each of the children's birth certificates.

Does the co-parent have any rights or responsibilities regarding the child?

If a co-parent is recognised as a child's legal parent, they have the same rights and responsibilities in respect of the child as the birth parent. This includes, but is not limited to, having the responsibility to make decisions about the child's health, education, living arrangements, name, overseas travel, religious and cultural upbringing. The family will be considered a 'family unit' for tax purposes and by agencies such as Medicare and Centrelink.

Child Support and maintenance

In the event of a relationship breakdown, a co-parent will be liable under the Child Support (Assessment) Act 1989 (Cth) to pay child support. The Child Support Agency must be satisfied that the co-parent is a legal parent of the child, whether or not the co-parent is named on the child's birth certificate. If you are in doubt about your or your partner's obligations; or your child's entitlements, it is recommended that you seek independent legal advice.

Following changes to the law on 1 March 2009, LGBTIQ de facto partners are able to seek orders from the Family Law Courts regarding property division after a relationship breakdown. This includes applications for child maintenance orders. As above, it is recommended that you seek independent legal advice in the event of a relationship breakdown.

Can the birth parent state in their Will that the co-parent will care for the child if they die?

Where a presumption of parentage arises, a co-parent will be able to care for their child in the event of the birth parent's death. A presumption of parentage ('presumption') will arise if the following three requirements are met:

  • The couple must have been living in a de facto relationship or have registered their relationship at the time of conception;
  • The child must have been conceived by an insemination or IVF procedure using donor sperm; and
  • The co-parent must have consented to the procedure that led to their partner's pregnancy.

A presumption will also arise if the co-parent is registered as the child's second parent, however this presumption can be challenged in court.

A legal parent can nominate someone in their Will as a 'testamentary guardian' of their child and/or children. In the event of the parent's death, that person will be responsible for taking care of the child's daily and long term needs, except where there are other court orders setting out who will be responsible for the child's care. Nominating a co-parent as a testamentary guardian is particularly important where the co-parent does not appear on the child's birth certificate and there are no existing court orders.

A court has the power to remove a testamentary guardian where it is satisfied that to do so would be in the child's best interests. However, if a co-parent has a significant relationship with the child and has been involved in their development for several years, a court would be unlikely to discontinue this. To do so would generally be viewed as not being in the best interests of the child.

The Family Law Courts are able to make parenting orders about whom a child lives with and who has the power to make decisions for them. If a birth parent dies, regardless of their Will, a court may make orders stating that their child is to live with a co-parent. Parenting orders may also be made stating that the co-parent alone has, or shares with some interested person, responsibility for making decisions about the long term care, welfare and development of the child.

Will the co-parent's income affect the birth parent's eligibility for Centrelink payments?

Yes. Since 1 July 2009, LGBTIQ couples have been recognised by Centrelink and have an obligation to disclose their relationship if they are receiving payments. This means LGBTIQ partners in a de facto or registered relationship will be paid the partnered rate instead of the rate for two single people. If one partner is working, their income and assets will be taken into account in determining whether their partner is eligible for benefits.

LGBTIQ partners are not eligible for single parent benefits.