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Here are my two mums – lesbian parents recognized in Family Law

It’s wonderful to see that children are loved and raised in traditional nuclear families as well, as same sex families, lesbian and gay relationships.

Since 2008, the law has changed to remove the discrimination against same-sex couples and lesbian parents.

The legislation introduced the idea of the ‘other intended parent’– section 60 H of the Family Law Act provides that in order to be recognised as the “other intended parent” – the following must be proven on the balance of probabilities:

  1. The parties must have been married or in a de facto (lesbian) relationship at the time if conception through artificial conception procedure; and
  2. The woman and the other intended parent consented to the procedure, (more importantly the other intended person consented to the procedure) and
  3. Any other person whose genetic material was used in the procedure also consented to it.

 

A recent case known a Love and Lundy (2015) highlights and explores the issues of two mums and lesbian parents being recognised under the law.

The facts of Love and Lundy, were as follows:

  • Ms Love, an Aboriginal woman was aged 25 years and Ms Lundy was aged 28 years
  • Ms Lundy is the biological mother of the child who was aged 4 years at the time of the trial;
  • Ms Love and Ms Lundy met in October 2007 and separated in March 2012- the relationship was fraught with difficulties, including family violence and concerns about what family members would say about the lesbian relationship;
  • In May 2013 ( this was the first round of legal proceedings) – Ms Love accepted supervised time with child, but did not seek a declaration that she was the legal parent of the child.

In these proceedings Ms Love, sought to be recognised as the legal parent of the child. Ms Love was able to prove that she and Ms Lundy were:

  1. In a same-sex lesbian relationship when the child was conceived via artificial procedure;
  2. Both she and Ms Lundy gave consent to the procedure (interestingly written consent is not necessary) – the procedure was conducted with Ms Love using a syringe to place the semen (obtained from Ms Lundy’s sister’s partner) into Ms Lundy. After about 15 to 20 attempts – the child was conceived
  3. The sperm donor also consented to the procedure.

 

Her Honour in this case found that Ms Love was the parent of the child. However due to the high level of acrimony between the 2 women and because Ms Lundy had done everything she could to erase the relationship between Ms Love and the child, it was determined that no orders be made in relation to Ms love spending time with the child – no doubt a devastating outcome for the other intended parent, Ms Love.

Parenting matters in relation to same sex relationships (lesbian or gay relationships) can be complex and fraught with uncertainty, confusion and stress- if you believe that you are a parent of a child conceived via artificial procedure, we are able to provide you with legal advice and support.

Contact us on 8999 1800 or info@cominosfamilylawyers.com.au

The information provided is not legal advice. It is intended as general legal information only.

Pamela Cominos is the Principal of Cominos Family Lawyers. She is passionate about protecting the rights of children.

Pamela Cominos

 

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