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The conventional Australian family portrait, framed and hanging in lounge rooms across the country is changing. A smiling photo of mum, dad, children and occasionally a much-loved pet, has evolved to reflect children are increasingly growing up in non-traditional families.
The photograph which may once have contained full siblings, or possibly half-siblings and step-siblings, may now include ‘diblings’. Donor siblings, or diblings for short, share a biological donor parent.
In some Australian jurisdictions such as Victoria, it is now possible for people conceived using donor sperm or eggs to obtain information about their donor, even if the donor was promised anonymity when they donated .
Such law reform recognises the strong urge some people have to know their genetic origins.
These changes are indicative of the evolution of families. With advances in IVF and surrogacy, we now see families coming in all shapes and sizes, including parents who are lesbian, gay, bisexual, transgender, intersex (“LGBTI”) or single by choice.
The past decade in particular, has seen a growing use of assisted reproductive technologies and surrogacy arrangements to help form families, and a corresponding increase in the number of potential parents a child may have. For a small but growing number of Australian children, their family includes parents who may not be genetically related or legally recognised as the child’s parent.
Adding to the complexity are blended and extended families. It is not uncommon in Indigenous families for Aboriginal children to have multiple adults with care giving roles spread across many family members, while Torres Strait Islanders have strong kinship systems involving grandparents, aunts and uncles.
"We need to recognise that traditional family structures of mum, dad and 2.5 children are no longer the only family structures."
However, Part VII of the Family Law Act 1975 has created a problem for the courts when a child's family does not conform to the nuclear model envisaged by the Act. Amendments have been attempted but these modern family configurations create a challenge for a range of Australian legal structures, social services and community frameworks.
Genetic and legal parenthood are no longer the same and we are facing ambiguous family boundaries.
Professor Paula Gerber, Deputy Director of the Castan Centre for Human Rights Law at Monash University says law reform and a shift in thinking and behaviour is required to ensure society is inclusive of all family types.
“We need to recognise that traditional family structures of mum, dad and 2.5 children are no longer the only family structures,” Professor Gerber says.
“Society has become increasingly accepting of LGBTI people and their families. Children of same-sex parents were, for a period, treated in much the same way as 'illegitimate' children were treated in a bygone era, i.e. with shame and disdain. However, more and more rainbow families are being accepted as part of the colourful fabric of Australian society.
“As a result, it is no longer appropriate to have on a form relating to a child, for instance, their school enrolment, spaces for parents to provide details of 'mother' and 'father'. Such language is inappropriate for same-sex families, and can make them feel uncomfortable and excluded.
“Similarly, teachers should not be telling students to 'ask their mum and dad' about something. Rather, they should talk about children asking their parents. Language is powerful, and as a society we need to move towards language that does not assume all children are being raised in families with a mum and a dad.”
Professor Gerber says research indicated that children in same-sex families do just as well as children in opposite-sex families.
“It is family processes (eg, parenting quality, parental wellbeing, the quality of and satisfaction with relationships within the family), rather than family structures (eg, the number, gender, sexuality or cohabitation arrangements of parents), that make a more meaningful difference to children’s wellbeing and positive development.”
In 2017 the Public Policy Research Portal at Columbia Law School reviewed 79 studies that investigated the wellbeing of children raised by gay or lesbian parents and concluded “this research forms an overwhelming scholarly consensus, based on over three decades of peer-reviewed research, that having a gay or lesbian parent does not harm children”.
Similar research in Australia conducted around the time of the 2017 postal survey on marriage equality, found that, “It is family processes (eg, parenting quality, parental wellbeing, the quality of and satisfaction with relationships within the family), rather than family structures (eg, the number, gender, sexuality or cohabitation arrangements of parents), that make a more meaningful difference to children’s wellbeing and positive development.”
Professor Gerber says, “What negatively impacts children is being subjected (or seeing their parents/family subjected) to homophobia, discrimination and stigma. Thus, in order to ensure children in contemporary families do well, we need to ensure that they are not subjected to prejudice or harm based on the sexual orientation or gender identity of their parents.
“Unfortunately during the marriage equality postal survey process, we did see many hurtful attacks on rainbow families.”
Professor Gerber says that in considering what law reform is required to recognise and respect a diversity of family structures, decisions must be informed by the principles set out in the United Nations Convention on the Rights of the Child.
She says decisions must be made taking into account the best interests of the child and the rights of children not to be discriminated against, including on the basis of who their parents are.
“If all law reform is informed by internationally recognised human rights law, we will be ensuring the best start in life for all children, regardless of their family structure,” says Professor Gerber.
She suggests four important changes to ensure Australia is meeting its human rights obligations:
Birth Certificate changes
Allow more than two parents to be recorded on a child's birth certificate. Same-sex couples are increasingly using IVF or alternative insemination and surrogacy to form families with known donors. In Canada, the state of British Columbia has legislated to allow more than two parents to be recorded on a child’s birth certificate.
Donor Sibling Registry
Set up a national register that allows donor siblings to connect with each other. A quest for knowledge about diblings was the catalyst for the development of the Donor Sibling Registry in the US, in 2000. That there are over 57,000 members from around the world on this registry is testament to the strong demand for such connections.
Allow and properly regulate compensated surrogacy in Australia so that couples don't have to go offshore to start their families.
Remove exemptions from anti-discrimination legislation for religious organisations. Currently, religious organisations, such as schools, can discriminate against a student or staff member because of their sexual orientation or gender identity.
The Commonwealth Sex Discrimination Act 1984 provides exemptions from the prohibition on discrimination for religious bodies under section 37 and for the employment of staff by educational institutions established for religious purposes under section 38 “to avoid injury to the religious susceptibilities of adherents of that religion”.
Professor Gerber says marriage equality has been a major step forward in recognising and respecting rainbow families. But further changes – to both the law and societal attitudes – are needed before children in diverse family structures are able to grow up free from discrimination and inequality.
Families in Australia
The 2016 Census1 counted 6.1 million families across Australia. There has been considerable change in the 25 years since 1991.
- Couple families with children remained the most common type of Australian family in 2016. However the proportion of Australian families they make up has decreased over time. In 1991, 54% of families were couples with children, dropping to 45% in 2016.
- The proportion of couple families without children increased from 32% in 1991 to 38% in 2016.
- Similarly, single parent families have increased from 13% of families in 1991 to 16% in 2016. Over 900,000 single parent families were counted in 2016 and over 80% of single parents were female.
- The 2016 Census counted 46,800 same-sex couples across Australia. This was an increase of 39% since the 2011 Census.
- Female same-sex couples made up just under half (49%) of same-sex couples, however they were more likely to have children than male same-sex couples. While one-quarter (25%) of female same-sex couples had children, 4.5% of male same-sex couples had children. Close to 55% of opposite-sex couples had children.
- The proportion of same-sex couple families with children increased from 12% in 2011 to 15% in 2016. In total, there were 10,500 children aged under 25 years living in same-sex couple families in 2016.