Same-Sex Parents Allowed To Replace Father's Name On Birth Certificate In “First For Queensland”

Thursday 12 June 2014 @ 10.47 a.m. | Legal Research

A lesbian couple from Queensland has been granted an order from the Supreme Court to remove the particulars for the biological father and register the non-biological mother as the parent on the birth certificate of their two children.  

The case, A & B v C [2014] QSC 111, in which none of the parties can be identified by name, was called “a first for Queensland and a great milestone for this family and for all same-sex parents” by the couple's lawyer, Denise Maxwell.  The couple was also granted a declaration under section 10 of the Status of Children Act 1978 (Qld) that the non-biological mother (known as “B” in the case) was a legal parent of the two children, aged 9 and 7.  The application was possible due to changes made by the Surrogacy Act 2010 (Qld)  that:

“retrospectively recognise that the two women – and the children they have planned – have the same rights as if they had been born to a heterosexual couple using donated gametes” [at 4].

The couple used a sperm donor (known as “C” in the case) to conceive during artificial insemination.  C has launched litigation in the Federal Circuit Court for ongoing contact with the children.  He argued that given it was his intention to maintain a relationship with the children, he felt he could not consent to the orders as he believed they would undermine and adversely affect that relationship.  There was some dispute about whether or not C had told the couple he wanted a relationship with the children, but it was clear that both children had lived with A (the biological mother) and B since birth.  A and B’s relationship was not recognised at the time of the children’s birth.  A testified that although she informed Centrelink she was in a same-sex relationship, they advised her that "her social security benefits would be affected if she did not record the father’s name on the birth certificate" [at 18], and this was the reason that she listed C on the certificate.

Her Honour directly quoted from the NSW District Court decision AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100, where the father argued that a decision in such a case should be made in the best interests of the child:

“Although it may seem to BB to be wrong that the BDMA makes no reference to a child’s interests on an application such as this, that no doubt is because the Family Law Act provides comprehensive provisions for children, whereas the BDMA is merely legislation to provide for the proper recording of population details for statistical and related purposes. There is a clear public interest in having a register of accurate information about births.”

Her Honour concluded that for the register to accurately reflect the correct parents for the children, the order should be made to remove C from the birth certificates and replace it with B’s particulars.  The decision will not affect C’s ongoing case in the Federal Circuit Court.  The couple told the Brisbane Times:

“For us, this decision recognises in law what our children have always known, that we are their loving parents.”

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