The Hon. PENNY SHARPE (Parliamentary Secretary) [10.13 p.m.]: I speak in favour of the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. The past 10 years have seen a quiet revolution in terms of gay, lesbian, bisexual and transgender law reform across Australia and in many other western nations. New South Wales has made significant progress by granting equal rights to same-sex couples and removing discrimination against gay men and lesbians in 48 Acts. Labor governments in Tasmania, Victoria, Western Australia and the Australian Capital Territory have systematically removed discrimination against same-sex couples. All members would also be aware of the Rudd Labor Government’s commitment to remove discrimination in over 100 Acts in Federal law.
Despite claims from some quarters that removing discrimination against gay men and lesbians will lead society down a path of moral decay, I note that society has not collapsed as a result of ensuring that gay and lesbian citizen’s are treated equally under the law. I welcome the amendments in the Miscellaneous Acts (Same Sex Relationships) Bill 2008 to a further 57 pieces of legislation. The bulk of the amendments in this legislation remove discrimination against same-sex couples by adopting a gender-inclusive definition of de facto and are an extension of the changes that have been progressively implemented by the Labor Government in the last 13 years. Other reforms extend protections under the Anti-Discrimination Act to same-sex couples.
The final reform is the change that will provide legal recognition of both parents in a lesbian relationship. This is the area that I will focus on in this debate. The reforms are being adopted as the Government’s response to recommendations by the New South Wales Law Reform Commission Report 113 Relationships. The Law Reform Commission report highlights some of the problems faced by children of lesbian parents and the gaps in the law in this area. It also highlights a number of other inequalities for same-sex couples. The report draws on the work of the New South Wales Gay and Lesbian Rights Lobby’s report entitled “And then the brides changed nappies” and consultation with other community groups.
I wish to formally acknowledge the work of the Gay and Lesbian Rights Lobby over many years to draw attention to these issues. The rights lobby has always backed its advocacy with objective research and extensive community consultation with the people it represents. The lobby’s consultations with same-sex families and its articulation of the issues faced by these families has made an important difference to this debate. I extend special thanks to Jenni Millbank, Emily Gray, Pete Johnson and Ghassan Kassisieh, who have provided me with extensive information about aspects of the bill.
It is widely acknowledged that there are growing numbers of families within Australia headed by same-sex couples, and there is anecdotal evidence to suggest that the majority of children born to lesbian couples in Australia were conceived using donor insemination. The last census identified 4,386 children who are currently living with two mums. It is estimated that in New South Wales there are more than 1,533 children in this situation. However, as the New South Wales Law Reform Commission Report 113 Relationships puts it:
[these] developments in family structures have not been accompanied by equivalent legal developments.
As a result, our current laws do not fully recognise the reality of many children’s lives or meet the practical needs of many families.
Currently, only the birth mother is recognised as the legal parent of any children in these families. And current laws in New South Wales fail to legally recognise that children born to lesbian couples as a result of a fertilisation procedure have two parents, namely their birth mother and her partner. This legal ambiguity places children in these families at a considerable disadvantage relative to other children in New South Wales.
As the Attorney explained in his second reading speech, under the New South Wales Status of Children Act there was already a presumption of parentage for the male partner of a woman who has children using donor insemination. However, there is no such presumption for lesbian couples who use assisted reproductive technologies to conceive children. The Law Reform Commission report goes on to explain that:
While the presumptions [of parentage under the Status of Children Act] may facilitate parenting by couples in opposite sex relationships who have a child using donor sperm, they do not take into account the existence of couples in same-sex relationships, who exercise the same choice.
This means that where a child is conceived in the context of a lesbian relationship, the presumption that the sperm donor is not the child’s legal father fails to be accompanied by a presumption that the mother’s partner is the child’s legal parent.
The result of this failure is that children who are conceived in the context of a lesbian relationship are denied a second legal parent, when such a parent is available.
In the eyes of the law, the co-mother is a complete stranger to the child, other than in those limited areas where the functional parent/child relationship is recognised.
For many children of these New South Wales families this means they may have only one legal parent. Without these amendments, a child’s relationship with one of its parents remains illegitimate in the eyes of the law. Illegitimacy leaves these children vulnerable to a number of adverse outcomes and makes it more difficult for their parents to care for them. Non-birth parents are unable to access information regarding their children’s health or to make schooling arrangementsand these children also have fewer inheritance rights.
While parents can apply for a parenting order, parenting orders are limited in their application and are expensive and complex to design. They are also limited in scope. When a child turns 18, gets married, or enters a de facto relationship, these parenting orders cease to exist. This has a significant impact on a child’s inheritance rights.
Under this legislation, the presumption of parentage will be extended to children of lesbian couples. There have been many incorrect claims about this legislation. It is important to point out that these amendments will place children born to lesbian de facto couples as a result of a fertilisation procedure in exactly the same position as children born to heterosexual de facto couples through such proceduresthat is, the child’s relationship with their non-birth parent is legally recognised even if no biological connection exists between the non-birth parent and the child.
These amendments bring New South Wales into line with Western Australia, the Australian Capital Territory, Victoria and the Northern Territory. They also give children of lesbian parents equal rights in workers compensation and victim compensation payments, as well as inheritance rights. And for parents, both partners in a lesbian relationship will be entitled to all the rights and responsibilities of parenthood, including custody and liability to pay child support.
The changes will also ensure recognition of both parents by schools and health authorities. This is a welcome move that will provide families across the State with the security of knowing that their relationships and their families are legally recognised.
The New South Wales Law Reform Commission report also recommended changes to laws on adoption and surrogacy. These are issues currently being dealt with by ministerial councils and I look forward to the results of these inquiries and further reforms in this area. After this legislation is passed there will still be children who are missing out on legal recognition of two parents. In particular, children who are living with their mum who conceived with a donor and now would like to have her partner formally adopt her child as a step-parent. I urge the Government to look at the provisions for step-parent adoption for those children where appropriate.
There are also children who are in out-of-home care who are currently living in loving homes of gay and lesbian foster carers. Many of these children will never be able to return home to their birth parent or parents and as is the case for other children in out-of-home care there are some children where it would be in their best interests if their foster families adopted them. These most vulnerable children and young people continue to be denied the option of adoption by both their foster carers even if it would be in their best interests. Again I look forward to further examination of these matters.
Like other members, I have received emails from opponents of the bill. While I acknowledge their right to have their own views, I cannot participate in this debate without challenging some of the spurious and incorrect arguments they put forward to justify them. The first argument incorrectly suggests that this bill will remove fathers from birth certificates. The fact is that no child will lose their father as a result of the changes and no father will lose the word “father” from his child’s birth certificate. The change means that children with two mothers will have both their parents recognised under the law.
Children will have the practical benefit of two parents who can take them to hospital and sign school permission notes, and they will automatically be eligible for both their parent’s inheritance. But even more importantly the change means that just like children in heterosexual families who have been conceived by donor insemination, children with two mums will have both parents on the birth certificate. Opponents of the bill have also tried to argue that recognising lesbian parents somehow diminishes the role or importance of fathers in our society. There was a forum hosted at Parliament today because of concerns that fatherhood and families are under threat from this bill and that it is a calculated attempt by the Government to discriminate against men, derogate fathers, fragment families and break the hearts of our children. This is misleading at best and, frankly, I find it offensive but it is also irrelevant to what these changes will actually facilitate.
No-one is trying to downplay the role of fathers in our society and in families. The bill is about giving kids who have two mums the stability of knowing that their relationships with both of their parents are legally recognised. I am not sure how anyone can come to the conclusion that legislation that will recognise both parents in lesbian-headed families would put other families under threat or break the hearts of children. In fact, I think if you read some of the stories that members have been sent by the Gay and Lesbian Rights Lobby you would realise just how important this legislation is for many families in New South Wales.
The third argument against this bill suggests that children in lesbian families will be seriously harmed if both their parents are recognised by the law. The proponents of this argument make a range of claims supposedly based on research. We often have debates in this place about the research and evidence base for decision-making. It was on this basis that I have had a look at the research presented. The first type of research produced to justify this claim is produced and/or quoted by organisations emphatically opposed to homosexuality on religious or moral grounds. The second form of research quoted provided is very selectively quoted and is often presented in a manner deliberately aimed to cause alarm. It is often based on studies that do not look specifically at same-sex families but instead are focussed on the outcomes of relationship breakdown, single parenthood and poverty.
The research quoted by opponents of this bill completely ignores any research that is contrary to their view. All credible research into gay and lesbian families shows that lesbian and gay parents are “like” heterosexual parents. Their children do not demonstrate any important differences in development, happiness, peer relation or adjustment.
A research study commissioned by the Canadian Department of Justice before the introduction of laws that allowed same-sex couples to be considered for adoption investigated the research on same-sex families. This report concluded that the studies which find that children suffer no developmental harm by being raised by homosexual parents employs some of the most methodologically sound program of inquiry. The most rigorous and credible studies continue to demonstrate that it is family processes and not family structures that determine a child’s well being. This has been demonstrated by studies of Charlotte Paterson in the United States and Fiona Tasker and Susan Golombok in the United Kingdom. Independent researchers not funded by any institutes or think tanks conducted these studies. Their research found that:
The number and sex of the adults in a household has no bearing on children well beingone adult or two, female or male, heterosexual or homosexual whereas the happiness of the relationship between adults in the household, and the openness of warmth and communication between the adults and the children do have a major impact on children.
As Susan Golombok, professor of family research and director of the Centre for Family Research at the University of Cambridge, recently stated in response to the United Kingdom’s embryo bill:
There’s now been more than 30 years of research in Europe and the US, that has found very consistently that children raised in a lesbian households are no different from children in heterosexual families, both in terms of their psychological adjustment, and also in terms of their gender development, and in terms of their relationships with other children.
All the research and the claims and the counterclaims about same-sex families come down to one simple fact: same-sex families are no different from any other family. People who have little experience of same-sex families, and even less contact with gay men and lesbians, can find it hard to understand this simple truth. Lesbians and gay men choose to have children for the same reasons that heterosexual men and women do. They want to build and share a loving family and they want to provide a safe and loving home for themselves and for their children.
Same-sex parents liaise with schools and doctors, wash jumpers for the junior sports team and bake cakes for the Parents and Citizens cake stall. Lesbian parents argue with their kids over bed times and negotiate about how much the television is on. Same-sex parents worry about who their kids are hanging around and whether their kids are being bullied at school. As their kids get older they worry about their kid’s education, job prospects and whether they are happy. Like all families, same-sex families do their best but also, like all families, none of them are perfect.
The one very significant difference between many gay and lesbian families and some other families is that lesbian and gay parents have all thought very hard and overcome many challenges to bring children into the world. It is not a decision that has ever been taken lightly and nor does it happen by accident. The children within these families are dearly wanted, planned and cared for. Children in same-sex families are very fortunate to have the love and support of two parents.
Some in this debate would like to see a world where the only families are families comprising a man and a woman who are married and have children. This does not reflect the diversity of families within our community and as legislators if we were to restrict legal rights and protections to only these families we would be legislating for the minority and we would fail to provide all families in our community with the protection that they need and deserve. It is an important step forward that this bill recognises the diversity of families in our community and gives them the legal rights and responsibilities that they need to support and nurture their children.
It is rare that a piece of legislation that comes into this place has a direct personal impact on individual legislators. Tonight I find myself in this somewhat unusual position. I can speak from personal experience about the impact that this bill will have. It will make a difference to my children and the thousands of other children who are lucky to have two mums. When the Attorney announced these changes I went home and said to my nine-year-old daughter that the Government was going to make a law that meant I would officially be her mum. She simply looked at me blankly and said, “But Mum, you are my mum.” When stripped bare of all the arguments for and against the bill, perhaps Jemima’s response best sums up the importance of this legislation.
For lesbian mothers it provides certainty that they can continue to raise children with the same love and care that they always have. But for the first time they will have the recognition and protection of the law and for our kids nothing much changes. They will continue to live in their families as they have always done but from now on they will have the same protections as their friends. I commend the bill to the House.