Gay couple 'parents', court finds

By Fergus Shiel December 13, 2003  The Age

The Family Court has granted a gay Melbourne couple parental responsibility for a baby boy born to a surrogate mother in the United States.

It is believed to be the first time that two gay men in Australia have been granted parenting orders for a child born into their relationship.

Justice Sally Brown ruled that it was in the best interests of one-year-old Mark to be looked after by the two men, identified only as Mr X and Mr Y.

"I am satisfied it is in Mark's best interests for significant decisions relating to his welfare... to be made by both of the people who treat him as their son, and that he can only benefit from their informed involvement in all aspects of his life," she said.

Justice Brown said she believed that Mr X, who donated the sperm, was a parent in the ordinary meaning of the word. She did not make a legal finding on the fact, though, as the case was uncontested. Her comments contrast with an earlier court ruling that a sperm donor was not a parent under the terms of the Family Law Act.

The men's lawyer, Judy Small, said Justice Brown had "put the cat among the pigeons" on the vexed issue of the legal rights of sperm donors. "It raises again the whole question of whether a donor is a parent," she said, adding that her clients were delighted by the ruling.

Mark's surrogate mother, Ms S, carried an embryo created from an anonymously donated egg and Mr X's sperm as part of a surrogate agreement reached in California.

Neither Ms S nor her husband wished to have any parental relationship with the boy, who has been in the care of Mr X, 38, and Mr Y, 41, since his birth on May 31, 2002.

Mr X and Mr Y had sought orders from the court that they have joint responsibility for the long-term care, welfare and development of Mark and that he live with them.

Justice Brown said the couple operated within a circle of extended family and friends,and daily demonstrated their commitment to and understanding of the responsibilities of parenthood.