The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 287 Victorian law, the donor cannot be placed on the child’s birth certificate as a parent. To name a donor as a parent on a child’s birth certificate is to make a false declaration and penalties may apply. The legal parents are the birth mother and her female partner. In the case of Roden and Montiel [2019] FCCA 1641, the sperm donor was not referred to as the father on the child’s birth certificate. Although section 60H of the FL Act operated here to prevent the sperm donor (the father) from being classified as a parent, he was found to have standing to apply for a parenting order under section 65C as he was concerned with the child’s care, welfare and development. For information on applying to the County Court for an order correcting a birth certificate to replace the donor with the mother’s female partner, visit www.rainbowfamilies.com.au. The central donor registry For donor-conceived births that occurred after the introduction of the ART Act, information about the donor must be registered in the central donor registry. This information is not included on the child’s birth certificate, but there is an addendum to the certificate stating that further information is available about the entry. This information about the donor can only be given to the person conceived using donor sperm when they are 18 (or beforehand with their parents’ consent) and/or the parents of a donor-conceived person. The purpose is to entitle children born through donor insemination to access information about their biological origins. If the request for information is from the parents, the donor must consent to the information being released. It is the responsibility of the fertility service to send the donor’s information to the central registry. In the case of home insemination with a known donor, it is the parents’ responsibility to send a letter to Births, Deaths and Marriages Victoria stating the donor’s full name, date of birth, place of birth and contact details. The donor must sign the letter and provide proof of identity. Registration of children conceived through surrogacy For surrogacy arrangements involving artificial insemination, the surrogate and her partner are the child’s legal parents due to the legal presumptions of parentage under the SoC Act (see pts II, III, IV). The surrogate is responsible for registering the child’s birth. The commissioning parents must apply to the County Court for a substitute parentage order (not less than 28 days after the birth and not more than six months after the birth) and provide a copy of the certified birth certificate. Once the court makes a substituted parentage order, the commissioning parents are the child’s legal parents (see, for example, Cahan and Kafka [2019] FCCA 2421). The registrar must register the surrogacy, enter the details in the Surrogate Birth Register and mark the original birth entry as ‘closed- surrogate’ (see s 19A BDMR Act). The presumption of the surrogate’s legal parentage does not prevail over a substituted parentage order (see s 19 SOC Act). The amended forms are available at www.bdm.vic.gov.au. Adoption Under the Adoption Act 1984 (Vic) (‘ Adoption Act ’), before an adoption can proceed, the child’s mother must consent to the adoption by signing an agreement. An ex-nuptial child’s father must also consent to the adoption if he is registered as the father with the registrar of Births, Deaths and Marriages, or where he has been found by a court to be the father (s 33). Where paternity has not been established, but a particular man is believed to be the father, he is to be notified (within two days of the mother signing her consent) that the child’s mother has consented to the child being adopted (s 49). If a possible father begins proceedings to establish paternity, the adoption will not continue until the paternity application has been determined. If paternity is established, his consent to the adoption is required (ss 33, 49). Under the Adoption Act (s 43(1)), the court may dispense with a person’s consent to an adoption of a child in a number of circumstances. This is especially the case where requiring consent from a particular person is not in the child’s best interests. In the New South Wales case of Re Adoption of A (Anonymised) [2020] NSWSC 124, it was emphasised that when considering the potential adoption of a child, the best interests of the child must be the court’s paramount consideration. Here, the consent of the birth parents was dispensed with as their mental states (affected by mental illness and cannabis use) meant they were unable to properly consider the question of whether consent should be given. Likewise, the consent of the birth parent was dispensed with in the case of Adoption of JK (Anonymised) [2020] NSWSP 789. Although the birth