Single mothers by choice: A summary of Fiona Kelly’s article “Parenting outside the normative framework”

In “Parenting outside the normative framework: Australia’s single mothers by choice” published in the Australian Journal of Family Law (2015) 29, Fiona Kelly Senior Lecturer at La Trobe University Law School, outlined the legal issues faced by un-partnered women who choose to become single mothers through assisted reproductive technologies (ART). Kelly finds that single mothers by choice (SMC) are not yet recognised by the Family Law Act 1975 (Cth) (FLA) which favours a two parent and mostly biological model, the outcome being that children born to SMCs are treated differently to those born to women who are partnered. Kelly suggests that a federal parentage Act would be to most appropriate way for SMCs and their children to receive clarity of their legal status.

The article is divided into four parts.  The first part briefly examines the rising trend of SMCs in Australia. It notes that whilst there has been little research into the trend in Australia, it is probably comparable to that of the United States of America where SMCs are typically aged between 35 and 40 years old, well educated, middle class, financially secure, heterosexual and white.

The second part is a comparison of the Australian social and legal landscapes in which SMCs find themselves. Kelly notes that like other “non-normative families” such as a gay or lesbian families, women who decide to become SMC are receiving wide-spread social support. The legal landscape at the federal level is, however, shifting in the other direction, making it more difficult for an SMC to be recognised as a sole parent family. In particular, Kelly points out that changes made to the FLA in 2006 presented a two-fold challenge to SMCs. The first was the tying of the child’s best interests to having a relationship with both of their biological parents. The second is the creation of a presumption in favour of equal shared parental responsibility.

The third part of the article looks at legal parentage, and in particular legislative presumptions on the topic. Kelly notes that Australian states and territories have taken a progressive view of legal parentage highlighting recent recognition of the parentage of a birth mother’s female partner, and the preclusion of a sperm donor from legal parentage unless he is the mother’s partner (in force in Victoria, ACT, NSW and Queensland). At the federal level, however, Kelly points out that s 60H of the FLA, the operative part pertaining children born as a result of ART, only expressly precludes the legal parentage of a donor where the mother has a partner.

In her examination of the case law surrounding s 60H, Kelly notes the courts have also tended to favour the “expansive” view, an approach which allows the court to consider all the parentage provisions of the FLA when determining the legal parentage of a child. This view provides for the application of the best interests test and thereby accept that the biological father may have some role in the child’s life, in the form of parenting orders at least, or legal parentage at the most. This is in opposition to the “restrictive” approach which would interpret s 60H as a comprehensive statement as to parentage where ART is used, capable of expansion only by virtue of a prescribed state or territory law. The latter approach is Kelly’s choice moving forward.

The expansive approach, however, is the one preferred by the Family Court at present and is illustrated by the most recent decision on the s 60H to date: Groth v Banks [2013] FamCA 430. Groth held that the man who donated sperm to an un-partnered woman in Victoria was the legal parent of the resulting child, in part because he was known to her at the time. The outcome of the decision is a warning to SMCs that sole parentage will be prohibited where the biological father is known.

After an in-depth examination of the decision in Groth, which highlights some curious assertions made by Cronin J which overlook the fact that unknown donors may later become known to the child, Kelly provides some recommendations for reform. She suggests the obvious start is to make the federal law consistent with the state and territory laws, in particular that s 60H should provide an exhaustive definition of parent where a child is conceived though ART. She also suggests that s 60H should reflect the diversity of Australian family structures. And finally that the remainder of Pt VII (in which s 60H resides) should be reviewed so as not to pose a barrier to a court determining that a child only has one parent.

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