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Friday, November 28, 2014

Same-sex surrogacy: Landmark decision in Victoria as gay man recognised by court as father of child born through surrogacy

THE Family Court has recognised a gay man as the father of a child born overseas through commercial surrogacy and given him and his partner equal parenting responsibilities.

The couple’s lawyer said it was a landmark Victorian decision, declaring a sperm donor as a parent, and it opened the way for the father’s partner to apply for step-parent adoption.

Paul Boers said the decision also highlighted the “absurdity’’ of different State commercial surrogacy laws.

The gay couple moved from NSW to Victoria, where commercial surrogacy is not illegal, before making arrangements to have a child born in India.

It is illegal for Queensland, NSW and ACT residents to pay an overseas surrogate mother to give birth.

“They are over the moon,’’ Mr Boers said of the couple’s reaction to the November 6 decision by Justice Sharon Johns.

“This case will apply to same-sex and opposite sex couples in Victoria,’’ he said.

Mr Boers said if the partner wanted to adopt the child as a stepfather they would have to move interstate, as it was illegal for same sex couples to adopt in Victoria.

The couple, aged 32 and 36, engaged a commercial surrogacy agency in India and obtained a donor egg from an anonymous donor, via an organisation in the Ukraine.

One of the gay men provided his sperm, which was used to create the embryo, and in August last year an Indian surrogate gave birth to a baby girl, the Family Court heard.

The baby was granted Australian citizenship by descent, after a DNA test confirmed the sperm donor partner as the biological father, and the couple returned to Melbourne with the child.

The surrogate signed an affidavit saying she accepted she permanently extinguished all parenting responsibilities and legal custody.


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