Please note the information below is not legal advice. If you have a legal issue, you should seek professional legal help.
The Queensland Government has announced planned changes to the Surrogacy Act that will impact on LGBTI families and our children. Rainbow Families Queensland has summarised these changes in this attached document. Since the annoucement of changes, many LGBTI people and their families and friends have contacted MPs. The feedback you have received from these MPs indicates that despite our concerns, the LNP still plans to change the Surrogacy Act to exclude homosexual couples and single people. The time frame we have been given for the parliamentary debate regarding these changes has not been confirmed by the LNP. Some LNP members have also stated that there are no plans to change the parenting presumption (i.e. having 2 mothers on a birth certificate).
General Information about Rainbow Families and the Law
Recognition of Same Sex Relationships
These days, same sex couples and their families have mostly the same entitlements and obligations as opposite sex de facto couples. In 2002, the Queensland Government changed the definition of de facto relationships to be inclusive of same sex couples, and in turn affected a lot of legislation. However, a lot of legislation relating to children is federal, and this was changed in 2008 when the government enacted wide-ranging reforms affecting 85 Commonwealth laws.
Same Sex Marriage
In Australia, same sex couples are not able to marry. In response to other countries introducing same sex marriage, and the confusion that may be caused by same sex couples marrying overseas the Howard Government amended the Marriage Act in 2004 to specifically state that marriage must be between a man and a woman.
Some states have introduced, or are looking to introduce, civil partnerships for same sex couples. In June 2012, the Queensland Government introduced the Civil Partnerships and Other Legislation Amendment Bill. to change civil partnerships to registered relationships and remove the provision for ceremonies to occur. Both same sex and opposite sex couples are able to register their relationship with the Queensland Registry of Births, Deaths and Marriages. For more information about these changes please read this attached document.
Campaigners continue to lobby for same sex marriage, and support has gained a lot of momentum recently.
Recognition of Parents
Where a child has been born to a couple, both the Queensland and Federal governments recognise both parents regardless of sex. Changes in Queensland law in 2010 allowed partners of birth mothers to be included on a birth certificate as “Other parent”. At the same time, the law was changed to allow altruistic surrogacy to be legal in Queensland. (Altruistic surrogacy is when a woman becomes pregnant and gives birth to a child for another couple but she is not paid any money for doing so.) This allows male couples to have a child in which both partners are legally recognised.
Since 2010, couples are able to have children by arranging a surrogate to conceive and bear a child for them. In Queensland this can be legally done if the woman is not paid for doing so (called altruistic surrogacy). It’s useful to know that the legislation prohibits the use of advertising either on the part of the intending parents or the surrogate. Male couples are also known to pay surrogates in other countries to have their children. It is technically illegal for Queensland residents to enter into a commercial surrogacy arrangement, in Australia or overseas. Either way, there is a lot to be aware of legally, therefore couples considering these routes to parenthood should consult a lawyer.
Same sex couples are not able to adopt in Queensland. Prior to 2009, only married couples were able to adopt children. In 2009, the law was changed to allow de facto couples to adopt, but the law specifically excludes same sex couples.
Transgender individuals can face many legal difficulties, especially if they wish to change their recorded sex on official documentation. These issues can be even more complicated if children are involved.
In Queensland, you can apply to have your birth or adoption certificate modified with your affirmed sex, but only if you are not married at the time.
If you are experiencing legal difficulties related to your sexuality, family or children, you may find help from the following organisations:
Information on the Australian Government’s Same-Sex Law Reforms
Queensland Department of Justice and Attorney General, information on:
- Same Sex Parenting Presumption
- Reassignment of Sex
- Legal Aid Queensland
- Queensland Legislation