Louise Pratt (WA, Australian Labor Party) Share this | Hansard source

I think the opposition’s amendments fail to pick up that this legislation is not about polygamist relationships; it is actually about protecting people who might be vulnerable in accessing their rightful entitlements. I give to you the situation of a couple who marry early in life and eventually leave each other. They have no further contact with each other but they remain legally married. If they were to enter into long-term de facto relationships with other people, there could be a situation where their previous marital status is not disclosed even to their de facto partner. They would have an understanding, being in a de facto relationship, that they would have access to a certain set of entitlements, and they would not know that those entitlements could be denied to them by virtue of the fact that their partner is legally married to someone else. So I have a great deal of concern about the opposition’s amendments in that regard.

You occasionally hear in the media, or read in the tabloids, stories about people who have multiple families and have led lives of deception. This legislation is not about morally condoning such relationships; it is about making sure that, if people are vulnerable to those kinds of relationships, they have some legal recourse to protect their interests and their children’s interests. For that reason, I oppose the amendments.

On indulgence, I would like to discuss some amendments that have not yet been moved. My remarks extend to the current section 60H of the Family Law Act. This section ensures that, where a woman gives birth to a child as a result of an artificial conception procedure, both the woman and her male partner are recognised as the child’s parents. It also ensures that, if genetic material from a third person was used to conceive the child, that third person will not be recognised as the child’s parent. The only proviso is that the woman and her partner must have consented to the procedure and that any third party who provided genetic material must have consented to the use of that material in an artificial conception procedure. The section has this effect even if there is no relevant state or territory law that provides that the woman concerned and her partner are the child’s parents. Only this section provides this independent Commonwealth recognition, without relying on state and territory law. It provides specific, explicit, independent recognition and protection under Commonwealth law to all couples who have children with the assistance of artificial conception procedures.

This section provides equal protection to married and opposite-sex de facto couples. The section will apply to opposite-sex de facto couples as if they were married. It provides all those couples and their children with the protection and reassurance that comes from knowing, with certainty, that the Commonwealth regards their parent-child relationships as legitimate. There are countless families out there right now—countless husbands, wives, mothers and fathers in de facto relationships, daughters, sons, grandparents, aunts, uncles and cousins—who all rely on reassurance and protection of their legal status. They are all relying on the Commonwealth to acknowledge, without reservation, that their children belong to their family and not to any other.

The government is proposing to extend this protection to lesbian couples so that, where a woman gives birth to a child as a result of an artificial conception procedure, both the woman and her female partner will be recognised as the child’s parents. The coalition objects to the government’s amendment because the government’s approach allegedly homogenises same-sex relationships with marriage relationships and treats them identically. The coalition has circulated its own amendment and it contains two separate provisions—one provides recognition for the husbands of birth mothers who conceive as the result of an artificial conception procedure and the other provides recognition for the male or female de facto partners of birth mothers who conceive as the result of an artificial conception procedure.

The coalition’s second provision for de facto couples—but not its provision for married couples—differs from the government’s provision in two significant ways. Firstly, it refers to the de facto partner of the birth mothers as ‘the other person in the relationship’, whereas the government’s amendment refers to ‘the other intended parent’. Secondly, it specifies that the child conceived ‘is the child of’ the birth mother and ‘is deemed to be the child of the other person in the relationship’, whereas the government amendment says that the child ‘is the child of’ both the birth mother and the other intended parent.

The coalition’s desire not to treat same-sex couples like married couples stands to undermine the legitimacy of the parent-child relationships of all de facto couples, both same-sex and straight, who conceive as a result of artificial conception procedures. It wants to say to same-sex couples: ‘We can possibly manage to treat you like you are parents. We can possibly manage to accept the reality that your children and all those who deal with them work on the assumption that you are parents. But we do not actually want to call you parents because we all know that really you are not parents—you are just pretending to be parents. Therefore, we only deem you to be parents.’ In the process, the coalition are putting at risk the existing rights of the many heterosexual de facto couples who conceive through artificial conception procedures.

Australia abolished all distinctions in legal status between so-called legitimate and illegitimate children in the 1970s, and in the 1980s the states referred their powers in relation to the children of unmarried parents to the Commonwealth to ensure that all children would be treated equally for the purposes of family law specifically. Everyone in Australia had thought that the days when children were discriminated against because of their parents’ marital status—the days when, through no fault of their own, children were branded as ‘bastards’—were behind us. That was until the opposition foreshadowed this particular amendment. The children of married couples using artificial conception procedures and donor sperm will now have two parents, while the children of de facto couples in the same situation will have one parent and another person who is ‘deemed to be a parent’—whatever that is supposed to mean.

This is a pernicious and evil distinction, the legal consequences of which are dangerously uncertain. To take just one example: what does this distinction mean for tracing rules? What does it mean for siblings, grandparents, uncles, aunts and cousins whose relationship to the child is through the person who is only ‘deemed’ to be a parent? In an attempt to pander, I think, to the homophobic prejudices of some of its members the coalition is undermining for many families the protection and reassurance that comes from knowing with certainty that the Commonwealth regards their parent-child relationships as legitimate. That is why we should acknowledge without reservation that those children belong to those families and not to any other.