The Council was to "consider and advise" on the following issues and have regard to the legal parentage of children as determined by State and Territory laws -
i. Whether the provisions in Part VII of the Family Law Act that deal with the parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent for children.
ii. Whether there are any amendments that could be made to the Family Law Act that will clarify the operation, interaction and effect of the relevant provisions.
iii. Whether there are any amendments that should be made to make the Family Law Act more consistent with State and Territory legislation that provides for the legal parentage of children.
iv. Are there any amendments that would assist the family courts to determine the parentage of children born as a result of assisted reproductive technology, including surrogacy, where the State and Territory Acts do not apply?
v. Are there any amendments to the Family Law Act that could be made to assist other Commonwealth agencies, such as those responsible for immigration, citizenship and passports, to identify who the parents of a child are for the purposes of Commonwealth laws?In response it states that
The reference responds to the increasing diversity of families in Australia and the rapidly changing nature of reproductive technology and community attitudes to family formation. It also reflects a concern to ensure that as far as possible children are not disadvantaged by the nature of their family or the way in which it was formed.
In its work, Council has considered the complex interaction of the legal and social aspects of families with a focus on the outcomes for children. Council has also considered Australia’s international human rights obligations as well as Australian, state and territory laws. Council conducted a number of consultations with community organisations, representatives of the Courts and the legal profession, government departments and academics. Council also made a public call for written submissions from interested members of the public. Council conducted its own research through searches of the relevant case law and academic literature. The cases were analysed with the aim of identifying who is a legal parent and whether the current provisions of Part VII of the Family Law Act lead to outcomes for children that are appropriate, consistent and non-discriminatory. In addition, Council identified a range of issues where there was uncertainty in the law and inconsistencies at both the state/territory and federal levels and between different Commonwealth agencies. Council also reviewed the data on the diversity of family forms and structures in Australia, which show that many children are living in families that are not based on the traditional form of a married couple and children who are biologically related to both parents.
Council has taken all of this information into consideration in formulating its response and recommendations. The complete set of recommendations is provided at the end of this Summary.
Council is making a general recommendation that the Australian Government introduce a federal Status of Children Act which would provide a clear statement of parentage laws for the purposes of all the laws of the Commonwealth. The rationale for this recommendation has developed out of Council’s consideration of all the issues raised by the terms of reference. Council’s work on this reference has reinforced its view that the appropriate focus of concern for Part VII of the Family Law Act is resolving disputes about post-separation care and parenting arrangements for children. In decision making in this area, the courts have consistently been guided by the principles of the best interests of the child (as they have developed) and not by the legal status of the adults who care for those children. In other words, the fact of parentage (or legal parenthood), although obviously important, is not the determinative question in disputes arising under Part VII. In contrast, a range of different considerations may apply to the determination of parentage for the purposes of other Commonwealth laws, including those relating to citizenship and migration, which raise issues that are different from the concerns pertinent to post-separation parenting matters.
1st Term of Reference—Whether the provisions in Part VII of the Family Law Act that deal with the parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent for children.
The main purpose of Part VII Family Law Act is to provide a decision making framework for cases involving disputes about the care arrangements for children. These disputes may involve decisions about where a child is to live, how much time children will spend with parents and other people of significance, and who has legal responsibility for children. In considering this term of reference, Council examined whether the current Part VII framework is being consistently for all children across different kinds of families. Council also considered the definition of parent for the purposes of this framework and whether changes need to be made to the relevant provisions of Part VII to more appropriately reflect children’s perspectives of family and the empirical evidence of the diversity of families in Australia.
Council reviewed a selection of cases from the family courts that involved ‘non-traditional’ families and compared the process of decision making that was applied with that in cases involving ‘traditional’ families. The surveyed cases revealed a number of inconsistencies in the operation of the current provisions in Part VII, and suggest the need for Part VII to be amended to better support decision making and settlement of disputes in cases where a child’s family does not conform to the ‘traditional’ model.
Council received submissions that highlighted the lack of an appropriate definition of a parent for the purposes of Part VII. The submissions also reflected concern about the impact of the limitation of a number of provisions in Part VII to ‘parents’. The submissions suggest that for many in the community and legal sectors of the family law system, the legislative distinction between social parents and legal parents does not reflect their day-to-day work with children and families and is not relevant to their consideration of what is in the child’s best interests.
On the other hand, some submissions raised concerns about the effects on children and their families if the position of legal parents is not adequately recognised and supported in the legislation. Some noted that children in families with same sex parents may be adversely affected by a failure to recognise the legal status of both mothers as parents. Similar concerns were raised about the interests of children in circumstances where an extended family member, or step-parent, has assumed caring responsibility for the child.
Council’s views and recommendations
In Council’s view, the provisions of Part VII that govern decision making about children’s best interests should recognise the diversity of families in Australia and children’s understandings of their families. Council recommends a number of changes to the Family Law Act to ensure that children are not disadvantaged by the nature or form of their family. These include changes to the objects and the principles underpinning Part VII to better reflect the reality of children’s lives. Council also believes that a more inclusive definition of parent is needed in the Family Law Act.
2nd Term of Reference—Whether there are any amendments that could be made to the Family Law Act that will clarify the operation, interaction and effect of the relevant provisions.
The parentage provisions of the Family Law Act are spread over a number of different divisions. In addition to the definition of a parent in s 4 of the Family Law Act, Part VII contains a number of rebuttable ‘presumptions of parentage’, a number of provisions that ‘deem’ a child to be a child of particular people in certain circumstances (such as when an assisted reproductive technology is used) and a power to make declarations of parentage. There is a lack of certainty about the operation and effect of a number of these provisions. In particular, there is a lack of certainty about the application of the provisions dealing with children born from assisted reproductive technologies (s 60H) and surrogacy arrangements (s 60HB). This includes uncertainty about the parental status of known donors of genetic material and the parental status of intending parents in surrogacy arrangements where state and territory Acts do not apply. The interaction between the general presumptions of parentage and the ‘deeming’ provisions in the Family Law Act, (s 60H for example), have also caused some problems. For instance, although being registered as a parent under a law of the Commonwealth, or a state or territory law raises a presumption of parentage (s 69R), this presumption may conflict with the provisions in s 60H Family Law Act, as happened in the domestic surrogacy case of Re Michael: Surrogacy Arrangements  FamCA 691. The Family Law Act is not clear about whether the presumptions of parentage in Part VII can be rebutted by other provisions in the Family Law Act. The application of the provisions relating to declarations of parentage and parentage testing procedures are also unclear in some cases. A declaration of parentage (s 69VA) is ‘conclusive evidence of parentage for the purposes of all laws of the Commonwealth’. However the current provision appears to be limited by a number of factors. Firstly, it is not a stand-alone power, but requires ‘parentage’ of a child to be in issue in proceedings in respect of another matter. Secondly, the power is limited by the fact that the court can only make a declaration if it finds that a person is a parent.
The cases relating to the parentage provisions and assisted reproductive technologies have considered whether s 60H Family Law Act provides an ‘exhaustive’ definition of who is a parent (the ‘restrictive’ approach), or whether it merely ‘enlarges’ the range of parents, without necessarily excluding other people from being considered a parent (the ‘expansive’ approach). This question arises where a single woman has a child as a result of an assisted reproductive technology, because s 60H Family Law Act does not explicitly exclude a donor of genetic material from being found to be a parent in this circumstance. This is an area where inconsistencies between the Family Law Act and state and territory laws arise.
In addition, the ‘expansive’ approach has, on occasion, been applied in surrogacy cases in order to find that an intending father is a parent. However, as in the case above, this is only possible where the woman who gives birth does not have a partner. In both cases, the inconsistent application of the provision raises issues of discrimination.
There was broad agreement in the submissions about the need for several amendments to clarify the operation of various provisions. The inconsistent interpretative approaches to s 60H Family Law Act were the subject of criticism in a number of submissions. This included concerns that the ‘expansive’ approach discriminates against single women by treating them differently to women with partners, and concerns that its application would mean that a sperm donor will automatically be considered a legal parent where a woman does not have a partner. Council also received a number of submissions suggesting that the provision dealing with parentage of children born from assisted reproductive treatments (s 60H Family Law Act) should be amended to make it clear that it does not apply to children born from surrogacy arrangements. There was widespread agreement on this point.
Council’s views and recommendations
Council agrees there is a need to clarify the operation of s 60H Family Law Act. Council’s views on this issue are expanded on in its discussion of the third term of reference, as this issue also raises an inconsistency with state and territory laws. Council has also made a number of other recommendations to clarify the operation of the power to make declarations of parentage.
3rd Term of Reference—Whether there are any amendments that should be made to make the Family Law Act more consistent with State and Territory legislation that provides for the legal parentage of children.
Council identified two specific areas of inconsistency between the Family Law Act and state and territory laws dealing with parentage. The first issue is the inconsistency between the definition of parents in the Family Law Act and the more inclusive definition of parents in state and territory statutes that define parents to include people recognised as parents according to Aboriginal and Torres Strait Islander tradition or custom. The second area is the inconsistency in approach to the parental status of known donors of genetic material where single women have children as a result of assisted reproductive technologies. In addition, the overall lack of consistency between the states, territories and Commonwealth laws dealing with parentage was a common theme in many submissions.
A recent case, Groth & Banks  FamCA 4031 has highlighted the continuing inconsistency that arises under the provisions relating to assisted reproductive technology. In this case Cronin J found that there was a direct inconsistency between the Family Law Act provision which covers the situation where a single woman has a child using assisted reproductive technology (s 60H(3) Family Law Act) and the provision in the Victorian Status of Children Act 1975, that covers the same situation (s 15). Cronin J applied the ‘expansive’ approach to s 60H Family Law Act, discussed above, to make a finding that a known sperm donor was a parent for the purposes of the Family Law Act and that the Victorian provisions were inoperative as a result of a the direct inconsistency.
Council received a number of submissions that were in favour of uniform parentage laws as a general principle. There was a range of submissions in relation to how the Family Law Act should apply to known donors of genetic materials. Some recommended that the Family Law Act should be amended to make it clear that donors of genetic material are not legal parents, regardless of the relationship status of the woman who gives birth following assisted reproductive technology. This would be consistent with the majority of state and territory laws. This could be done be either prescribing state and territory laws for all of s 60H Family Law Act (and not just where women have partners), or by including provisions in the Family Law Act that mirror those that exist in the state and territory laws.
Council’s views and recommendations
Council agrees that the Family Law Act should be as consistent with state and territory laws as possible and recommends that s 60H Family Law Act be amended to reflect that position. This would mean that the same parenting presumptions would apply to intending parents using assisted reproductive technology or entering surrogacy arrangements under state or territory laws and the Family Law Act. In terms of ‘uniformity’ across all jurisdictions, it is beyond the scope of the Family Law Act to achieve this goal. Council agrees with the recommendations that suggested the need for further work on harmonisation of parentage laws to be referred to the Standing Council on Law and Justice. However, Council believes that there are a number of legislative changes the Australian Government could introduce that would assist in this area. Principally, Council recommends that the Australian Government enact a separate Status of Children Act for the purposes of all Commonwealth laws. In addition, Council is making a further recommendation (in Chapter 5) that the Australian Government introduce separate legislation to enable the Family Court of Australia to transfer parental status to Torres Strait Islander receiving parents.
4th Term of Reference—Are there any amendments that would assist the family courts to determine the parentage of children born as a result of assisted reproductive technology, including surrogacy, where the State and Territory Acts do not apply?
Over the past several years, the family courts have received a number of applications for parenting orders relating to children born from surrogacy in circumstances where the surrogacy arrangement used by the parties did not meet the requirements for a transfer of parentage under the relevant state or territory law. In most of these cases the intended parents had used a commercial surrogacy arrangement and the child/ren had been born outside Australia. Commercial surrogacy arrangements are prohibited by state and territory Acts (the Northern Territory has no legislation). Despite this prohibition, many hundreds of children have been born to Australian couples as a result of overseas surrogacy arrangements, and the numbers are growing each year.
The provision in the Family Law Act that was intended to govern the recognition of parental status arising from surrogacy arrangements (s 60HB) does not apply to these cases. Consequently, the children born as a result of these arrangements are at risk of having no secure legal relationship to the people who are raising them. Council was asked to consider possible amendments to the Family Law Act to assist decision making by the family courts in these cases.
The decisions in these cases have highlighted that as a result of the preparedness of intending parents to commission surrogacy arrangements that do not meet the requirements of the state or territory law, the child/ren born of these arrangements face the prospect of being unable to secure appropriate and non-discriminatory legal status. The cases in this area also reveal the potential for inconsistent outcomes for children, for example, as between children born of surrogacy arrangements within Australia that do not meet the requirements of state and territory laws and children born of overseas commercial surrogacy arrangements.
Further, the cases demonstrate a lack of certainty about the application of the other parentage provisions—such as s 60H Family Law Act, which deals with children born as a result of an artificial conception process—to surrogacy cases that fall outside s 60HB Family Law Act. They also raise questions, as they have for the court in England, about the relevance of public policy considerations (such as the illegality of the surrogacy arrangement) to decision making in commercial surrogacy cases. In considering this term of reference, Council had regard to relevant cases and legislation in other jurisdictions, such as the UK, New Zealand and Canada.
Council received submissions expressing a broad range of views as to whether, and if so how, the Family Law Act should be amended in relation to the determination of parentage in surrogacy cases. Some submissions recommended that the current Family Law Act provision (s 60HB), which recognises parentage transfers made under state and territory laws, is appropriate and that no amendments are needed. Other submissions proposed wide reaching changes to enable the courts to give automatic effect to overseas birth certificates, court orders, or the surrogacy agreement itself. A third group of submissions suggested the need for a parentage transfer process for overseas surrogacy cases that is subject to judicial oversight, in order to safeguard the rights of the child and the surrogate in these cases and ensure the children are not disadvantaged by the status of their family.
Council’s views and recommendations
Council has had regard to the strongly held views in relation to this term of reference. Council has considered the research literature on overseas surrogacy arrangements and notes the limited empirical information about the practices in emerging surrogacy market countries and the long-term outcomes for children born from overseas surrogacy arrangements. Council is conscious that the number of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically in the past several years, despite the existence of Australian laws prohibiting such arrangements. Council believes this issue requires a coordinated international regulatory response of the kind embodied in the Hague Adoption Convention.
In Council’s view, the most appropriate course to assist the family courts in the meantime is one aimed at addressing the concerns that underpin current state and territory surrogacy laws (such as concerns about exploitation of surrogates and to protect children’s identity rights) whilst also recognising the need to ensure that children born of illegal surrogacy arrangements are not disadvantaged by a lack of legal status. Council’s view is that the best way to achieve this outcome is by providing the family courts with a power to effect a post-birth transfer of parentage from the surrogate (and her partner) to the intended parents where certain ‘safeguard’ criteria have been met. Council believes that a process of judicial oversight (rather than a contract-based presumption, or prescribing overseas jurisdictions) is necessary given the current, largely unregulated, circumstances of some overseas surrogacy markets. These unregulated markets give rise to concerns about the arrangements, including issues of full, informed consent of surrogate mothers and the (identity) rights of the child.
As noted above, Council recommends that the Government introduce a new federal Status of Children Act, which would include specific provisions dealing with the parentage of children born as a result of assisted reproductive technologies and surrogacy arrangements where the state and territory Acts do not apply. Council has recommended a set of minimum requirements that the courts should have regard to in determining whether to transfer parentage. These minimum requirements are based on the types of matters that the courts (in Australia and other jurisdictions) have considered in these kinds of cases to date, and include similar requirements as currently exist in state and territory laws.
5th Term of Reference—Are there any amendments to the Family Law Act that could be made to assist other Commonwealth agencies, such as those responsible for immigration, citizenship and passports, to identify who the parents of a child are for the purposes of Commonwealth laws?
A number of inconsistencies have arisen in different areas of Commonwealth laws, particularly how various Commonwealth agencies determine who the parent of a child is. This is despite the fact that many pieces of Commonwealth legislation explicitly refer to the parentage provisions in Part VII Family Law Act. In addition to the lack of certainty about legal parentage, overseas surrogacy arrangements also raise uncertainty about citizenship. When a child is born overseas as a result of a surrogacy arrangement, Australian intending parents need to obtain either citizenship (including a passport) or a visa, in order to bring the child back to Australia. In all cases, eligibility is largely determined by a finding that there is a parent child relationship as defined by the various pieces of legislation and related policy manuals. One route to citizenship has been for intending parents to apply for citizenship by descent. The eligibility requirement for applying for citizenship by descent has raised the problem of the status of the intending parents at the time of birth of the child overseas. The policy of the former Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) has been to grant citizenship by descent where at least one intending parent can demonstrate a biological connection with the child. However, the grant of citizenship does not mean that the intending parents are legal parents for the purposes of any other Commonwealth, state or territory laws, including the Family Law Act.
Similar difficulties arise in the case of passport applications for children born overseas as a result of surrogacy arrangements and in visa applications for children under the Migration Act 1958 (Cth).
Council received submissions that expressed the view that the Family Law Act should recognise legal parentage of intending parents based on the former Department of Immigration and Citizenship’s application of the Australian Citizenship Act 2007 (Cth). On the other hand, some submissions were heavily critical of the practice of granting citizenship by descent in international surrogacy cases on the basis that this effectively bypasses all state and territory legislation that provide a mechanism for a transfer of parentage and which prohibit commercial surrogacy arrangements.
Council’s views and recommendations
Council’s view is that the Family Law Act is not the appropriate vehicle for providing a definition of parents for the purposes of other Commonwealth laws. The grant of citizenship by descent does not mean the intending parents are considered legal parents in Australian law and this means these children are vulnerable if there is no legally recognised parent in Australia. Many intending parents do not seek parenting orders when they return to Australia. There have been only 19 reported cases dealing with overseas surrogacy arrangements in the family courts, while there have been many hundreds of children born to Australian couples through overseas surrogacy arrangements. This means that the great majority of children born as a result of surrogacy arrangements overseas do not have the legal protection of having a legally recognised parent in Australia. Council is of the view that it is in the best interests of children born from international surrogacy arrangements that a child has at least one parent in Australia who is legally recognised as a parent. As noted above, Council believes that a process of parentage transfer, subject to judicial oversight, is the preferred option pending an international regulatory response to the issue of overseas surrogacy arrangements.
In addition to the above, in the course of Council’s reference, a number of related issues were brought to the attention of Council. In particular, the recognition of ‘receiving parents’ under Torres Strait Islander customary adoption was also considered under the first and third terms of reference. Council recommends that the Australian Government enact a separate piece of legislation to provide for legal recognition of Torres Strait Islander customary adoption. Council also notes that questions of legal parentage also raise issues about birth certificates. Council recommends that this is an area where further harmonisation and integration between states and territories and the Commonwealth would be beneficial.