Sarah Bevan is an Accredited Family Law Specialist and Principal of Sarah Bevan Family Lawyers in Sydney. With a long track record in surrogacy and fertility law, she's one of Australia's most respected voices on the legal questions that matter most to LGBTQ+ families. 

Can you explain what legal parentage means, and why it's different from being a parent?

Families are diverse, and so are parents. A parent can be defined in many ways, but really it comes down to who does the parenting. Sometimes its easier to look at who isn't a parent, for example, an anonymous sperm donor has a biological link to the child but is not a parent.

Legal parentage is when a person is recognised for all relevant legal purposes as a child's parent. It doesn't necessarily match up with being a parent. A man who has a one night stand with a woman has legal parentage, but has never been a parent. On the other hand, one member of a couple might have been a parent from day one, but not have legal parentage.

Is there a difference between being named on a birth certificate and being a legal parent?

In Australia, if you are named on a birth certificate, you have rebuttable presumption of legal parentage. That means you are recognised as a legal parent, but that parentage can be rebutted in certain limited circumstances. The same applies if you are named on a birth certificate from a random assortment of certain countries. However, being named on a birth certificate from other countries does not give you this rebuttable presumption of legal parentage.

For children born through surrogacy to two dads, are the dads automatically recognised as legal parents?

For surrogacy in Australia, the legal parents at birth are the surrogate and their partner (if any). The two dads then become legal parents through the court process of a parentage order. That is why getting that process right is crucial.

For surrogacy overseas, the situation is very different (except that in NSW and ACT there is the potential to obtain a parentage order). The birth certificate provision (see above) may apply depending on the country. The biologically linked dad is also likely recognised as a legal parent.

For queer couples are both parents considered legal parents even if one is not the bio parent?

This all depends on the circumstances. See above for surrogacy. Where one of the parents is a woman – and note here that there is no gender diversity in our legislation, so this applies to people with female biology – and that parent gives birth to a child who was conceived through assisted reproduction technology, and that conception occurred with the consent of their partner, then the partner is also a legal parent.

What's the situation for single parents by choice using a donor?

If the single parent is a person who gives birth to the child, and that child was conceived through artificial means, then that parent is a legal parent. Is the other person also a legal parent? It depends on a number of things, in particular method of conception. If conception is by old fashioned natural means, then the other person is a legal parent.

If the single parent is a parent through surrogacy, then the same considerations apply for them as for a couple (and see above re surrogacy).

What are the real-world consequences for a family if legal parentage isn't established?

There can be many potential issues from including enrolling in school, authority for major medical decisions, succession and tax consequences, and more. Often there is a practical work around, but sometimes there is not. And mostly legal parentage cannot be 'fixed' later on when an issue arises.

Sarah Bevan Family Lawyers are proud sponsors of Rainbow Families Australia. You can learn more about Sarah and her team at sbfamilylawyers.com.au.

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