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Emera Smith assists the LGBTIQA+ community with legal issues related to family law and estate planning. These include:

Starting a family: parentage, donor agreements and surrogacy

People planning on having a child or children by donor insemination (known or unknown) either at home or at a clinic, by in vitro fertilization (IVF) or surrogacy should be aware of the legal issues around parentage; who is considered a parent and what are the donor’s rights.


Different States and Territories have different legislation regarding who is a parent.

In Victoria, any man who donates his sperm to a woman who is in a de facto relationship/married with another person is presumed for all purposes NOT to be the father of any child born as a result.

Women in a same-sex relationship who undergo IVF or donor insemination at home can both be legally recognised as parents of a child if:

  • they were living together in a genuine domestic basis at the time of the IVF or insemination; and
  • the non-birth partner consented to the IVF or insemination procedure.

Both women will be recorded on the Birth Certificate as “mother” and “parent”.

Donor agreements

Some parents may want their sperm donor to be involved in the child’s life and others may be clear that the donor will not be involved.

Although Donor Agreements are not legally enforceable, they are helpful documents to record the intentions of the parents and/or donor about the role of the parents and the relationship, if any, that the donor is to have with the child. Although things could change down the track it ensures that everyone is on the same page from the outset.

A donor that has a relationship with a child may have grounds to apply to the Family Law Courts for parenting orders in relation to the child later down the track.

It is important to get advice about these arrangements before any decisions are made.


The laws related to surrogacy are the same for rainbow families. Specific information about surrogacy is available here.

Parenting matters

The laws related to parenting are the same for rainbow families. Specific information about children and parenting matters is available here.

Property settlements and maintenance

The law is virtually the same for married and de facto couples; including after the breakdown of a same-sex relationship. Information about property settlements and maintenance is available here.

Financial agreements

You can enter into a Financial Agreement to set out what would happen regarding property and maintenance in the event of a relationship breakdown or you can make a Financial Agreement following separation. Information about Financial Agreements is available here.

Family violence and Intervention Orders

There are resources available for members of the LGBTIQA+ community experiencing family violence. More information about family violence and intervention orders in general can be found here.

Emera Smith is an inclusive firm that supports equality for all. We have lawyers experienced in all the above practice areas and we are here to provide you with advice and assist you with your matter.

How can we help you today?

03 8625 8957 info@emerasmith.com.au

We're here to help you move forward with your legal matter. Understanding where you stand by getting the right advice early will give you clarity and certainty.

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