Family Law - Redefining families
When Victorian Labor senator Stephen Conroy and his wife were forced to go interstate last year to have a child by surrogacy arrangement, it highlighted the disparity of state laws regarding Assisted Reproduction Technology (ART). It also reignited the debate on access to ART and adoption and the recognition of non-traditional family rights in Victoria.
This year the Victorian Law Reform Commission (VLRC) has reviewed the current laws and practices in an effort to respond to changing community values and redress discrimination. Victoria is one of only three states to regulate ART activity, which it does through the Infertility Treatment Act 1995 (Vic) (ITA).
Central to the discussion of access to ART through licensed clinics and adoption is the issue of eligibility. The rights and best interests of children born into “alternative” family types is at the forefront of the debate, flanked by the social, legal and ethical issues existing now and into the future if amendments to the ITA expand eligibility criteria. Rising from the discussion are the voices of particular community groups, who have been challenging the traditional definition of family both in Victoria and across the country for years.
The surrogacy debate in particular has put pressure on the federal government to review its position on the recognition of rights for same-sex couples and to consider a national approach to family law reform. Wider issues, such as access to maintenance and superannuation for same-sex couples, have added another dimension to the discussion.
Following Tasmania’s initiative to allow same-sex couples to formally register their relationship with the Office of Births, Deaths and Marriages, Victoria is currently considering establishing a same-sex register, which will give gay and lesbian couples access to the same legal rights as heterosexual couples. The Marriage Amendment Act 2004 (Cth) has prohibited same-sex couples who have married overseas from having their union recognised in Australia. Although the register will not be able to recognise the marriage as a marriage under the Marriage Act, the proposed register will make it easier for same-sex partners to exercise “relationship rights” in such matters as wills, property, health care, adoption and state superannuation and pension schemes.
The idea of the same-sex register is not new in Victoria, with several local councils having already set up registers in their municipalities. The preferred option however is a state register, which would enable a clear and uniform system to effectively support the rights of same-sex couples across the state.
Despite Victoria’s moves on the recognition of same-sex relationships, there appears to be no intention of allowing gay marriages or any official civil union between same-sex couples. The Australian Capital Territory tried to introduce legislation to that effect, but was over-ruled by the federal government. That leaves the states to settle disputes on same-sex rights without provision for things like spousal maintenance or shared life insurance and superannuation arrangements, which are controlled by the Commonwealth. But as legislative reform continues in the states and the momentum among community groups grows, the federal government may be forced to reconsider its position.
More information
Useful web links: Visit www.lawreform.vic.gov.au to download the Assisted Reproduction report, launched 7 June 2007.
Disclaimer:The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Warwick Teasdale; Stephen Gregory; Barbara Watson: Paula Leslie or Tony Kenna of our office.
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