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Tuesday, January 27, 2015


A landmark judgement acknowledging a same-sex couple as legal parents of a child fathered through an overseas commercial surrogacy arrangement has highlighted the legal maze same-sex couples enter regarding adoption and parenting in Australia.

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

The NSW couple moved to Victoria to enter into the overseas commercial surrogacy agreement, since it is illegal to do so in NSW.

Paul Boers, a family law specialist who volunteers with the Fitzroy Legal Service, said
the case has paved the way for an intended parent in a commercial surrogacy arrangement to obtain a declaration of parentage, which will now allow a step-parent adoption for the other intended parent who is not biologically related to the child.

The irony for the couple is that if they wanted to pursue a step-parent adoption they would have to move back to New South Wales to do so, because same-sex adoption is not legal in Victoria.

“The complex and contradictory laws between the states and territories highlight the absurdity in how residents are treated legally depending where they live,” Boers said.

“For instance, if they applied to the Family Court in New South Wales for the same orders as New South Wales residents, illegality aside, they would not be able to get the declaration of parentage because of the state of the law in New South Wales.”

The couple, who did not wish to be identified in the interests of protecting their child’s right to privacy, said:

“Starting a family had been something we’d both wanted for many years but it was not until the last three years that we could see a real and possible pathway to parenthood.

“It was by no means an easy path – and certainly tested our relationship in ways that we would never have even imagined, however it has been a really rewarding experience,” they said.

MCV understands Chief Justices are calling for commercial surrogacy to be made legal within Australia.

The Victorian Government made an election promise to look at the adoption laws for same-sex couples, and cemented that position during Midsumma Carnival.


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