How Will the Legalisation of Same Sex Marriage Affect Children of Same Sex Couples?

As a result of recent conversations regarding the same sex marriage postal vote, it has come to my attention that there seems to be a misguided understanding by some that if same sex marriage is legalised it could somehow have a flow on effect to children of same sex couples.  In particular the question has arisen as to how those children identify who their ‘parents’ are as a result of the need of a helping hand from a third party through surrogacy or artificial conception procedures.

Let us not confuse the issues here.  The first is that of same sex marriage. The other is how we identify the parents of a child conceived through surrogacy or artificial conception – a process that has been happening for years and is not exclusive to same sex couples.

Surrogacy and artificial conception are not new concepts in Australia.  These procedures and arrangements are ones that have been used by both same sex couples and heterosexual couples for years.

As a result, the law has long adapted to give guidance on the determination of who the parents are of children brought into the world in this way.

The Surrogacy Act 2010 (Qld) and Family Law Act already contain provisions for determining the parents of a child conceived through these means.

In a nutshell, if two people who are in a relationship consent to having a child through the use of artificial conception, then the child is the child of those two people, to the exclusion of all others, including the donor.

This is similar in terms of surrogacy. In those cases, the woman carrying the child is not deemed to be the intended parent of the child and therefore is not treated as such.  The child is the child of the person(s) who have entered into an arrangement with the woman to carry the child and who are the intended parents of that child.

So, the answer to the question, “how will the legalisation of same sex marriage affect children of same sex couples” is relatively simple:

Their parents will be able to be married. Nothing more, nothing less.


For answers to your Family Law or general legal questions contact your Gold Coast Lawyers, McLaughlins Lawyers.

Director: Ian Kennedy

Date: 10/10/2017