When it's not nuclear: what rights do non-biological partners and donors have?

Erin Steiner advises clients on how to prepare for a rainbow family. Source: The Feed

Will the donor be called “dad”? Which mum will carry the child? It’s no longer unusual for lesbian couples or single women to use a good male friend as a donor to conceive a child. But how do these would-be parents and donors prepare emotionally and practically to enter these types of family arrangements? And who does the law protect if it all falls apart?

Erin Steiner is the principal solicitor of Steiner Legal law practice in Rozelle.

Increasingly, Ms Steiner sees a new kind of family in her law practice: same sex-couples looking to have a child with the help of a donor or friend, or two couples intending to co-parent.

“We probably get a fairly even spread of female couples, male couples, and donors who are thinking of donating to a family or couples. That’s the three different sets of people who come.”

In Australia, birth certificates can only list two parents. This means that someone – generally the donor – must be omitted from the birth certificate, thus forfeiting parental rights.

Ms Steiner believes that most people entering the agreement aren’t fully aware of their rights and responsibilities.

It’s crucial to recognise that people may feel differently once the child is born, she told The Feed. Donors who do not intend to play a parental role may experience an onset of emotion on meeting their biological child.

“When you meet that child for the first time, you're going to feel a whole range of emotions,” she said. “I think that's something that's important for people to understand. Are you really going to be satisfied with being someone on the outside?”


As it stands the law protects the partner of the biological mother at the time of birth. They are recognised as the legitimate parent of the child. This status stands even in the case of the mothers’ separation.

Biological fathers may still petition the Family Court for access to their child, even if the friendship has dissolved but they had previously been an important figure in the child’s life.

Ms Steiner said that this type of dispute was the most common – where biological fathers developed a relationship with the child, and over time there was a dispute about what amount of time or level of input was appropriate.

“You don't have to be a parent to make an application to spend time with a child,“ she said.

“The overarching principle of the Family Law Act is the best interests of the child. If the Family Court is looking at a matter where the child has a close and loving relationship with the donor, that donor will get time with that child.”

The law currently recognises the de-facto partner of the woman carrying the child as a parent, rather than the donor. However, Ms Steiner believes that there needs to be further amendments to legislation to recognise more complicated family structures.

“The law has to adapt to circumstances that are occurring. There needs to be an amendment to the Family Law Act to contemplate a situation where there could be more than two parents.”

Ms Steiner advises her clients have a contract drawn up, despite the fact that they are not enforceable by law.

“If they have a dispute and end up in the Family Court, it is something that the Family Court can look at and say, this was the starting point for these people,” she said.

Ultimately, she believes it is about discussion and communication.

“One of the biggest things I say to people is, talk to each other. Sit down with everyone involved and put everything out on the table: what they're thinking about, what they imagine is going to be the future for the child, what will be the child's involvement with each of the people. 'Cause one of the biggest issues is people don't talk enough, and then the child arrives and then they have different ideas about what they thought would happen or what the relationship would look like.”

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