Donor, Father or Parent? Conceiving Paternity in the Australian Family Court

Abstract

Planned parenthood within the international lesbian and gay communities has attracted considerable attention and controversy in the past decade. On 5 April 2002, Guest J of the Family Court of Australia acknowledged a lesbian couple as resident parents of 2-year-old 'Patrick'. This judgement was remarkable in that it signalled a break with the well-documented international legal non-recognition of lesbian non-biological parents. However, the judgement was actually a loss for the two women, who had initiated legal proceedings in a bid to have the biological father's contact visits with the child reduced. Contrary to their wishes, the biological father was awarded increased contact and a notion of 'father' was separated in law from 'parent.' In this article, via analysis of the judgement, several issues are examined. First, one dilemma Guest J was faced with was: are the best interests of a child in a lesbian-parented family served by recognizing a father as a means for a child to make sense of his biological origins, or, by allowing the child to form and maintain a 'father-like' social relationship? This dilemma made visible the somewhat arbitrary and subjective nature of the 'best interests' standard when it comes to deciding between characterizations of paternity that recognize the symbolism of biological connections versus those that recognize the blood tie as grounds for a regular paternal social relationship. In the absence of an obvious 'best interests' conclusion, the judge found himself in the difficult position of assessing both the original terms or intent of the parental agreement between the parties and the quality of the existing social relationship between biological father and child. It is argued that his assessment of both issues was, at times, coloured by an unsubstantiated assumption that the lesbian parents' concept of kinship was irrational. The 'Patrick' case also indicated the extent to which lesbians and gay men may have entirely different expectations and understandings of 'known donor' relationships. This finding is contextualized within broader historical and political developments within lesbian and gay cultures. The author's conclusion is that there is a pressing need for legislative, policy and community-based initiatives to guide and assist individuals who identify with these communities in the task of bringing children into the world.

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