I approach the topic of birth certificates with some trepidation, because it seems to be a particularly controversial topic. I approach Australian law with great trepidation, as I have no real understanding of Australian law. I rely on what others say, and that is always risky. So you can just imagine the degree of trepidation with which I approach the topic of Australian birth certificates. But nonetheless, here I am.
Some background first: One problem with talking about birth certificates is reaching an agreement about what they are/what they do. I’ve written about this a number of times. (See above trepidation.)
A number of things make the topic more complicated than it might at first seem. For one thing, I assume every country (and many states) have their own ways of doing things. And then, even within a jurisdiction, there may be different ideas about what a birth certificate is. All of this means that two people can make apparently contradictory statements and both can be right–each in their own way, in their own place.
For instance, in the US states (as opposed to the federal government) issue individual birth certificates. But the CDC (a federal agency) collects data on birth using a standard form entitled “US Standard Certificate for Live Birth.” Bottom line here (for me anyway) is that the individual birth certificate–needed for getting a passport and the like–is a “vital records” document issued by a state office. And from here on what, when I say “birth certificate” I mean that state-issued document.
If you scan back over earlier posts, you’ll see that the main controversy is about who is listed as a “parent” (or a “mother” or “father”) on a birth certificate–and remember that here I am talking about the document you get from the state department of vital records: It is, within the US, the legal parents of the child. That highlighted word is critical. It means that when the legal parentage of a child changes (when the child is adopted) a new birth certificate is issued. While it is certainly possible that a birth certificate (either the original one or the eventual one) lists the genetic parents of a child, that would only be the case when the genetic parents are also the legal parents.
So much for US law–now on to Australia. This blog post describes a recent court decision there. A lesbian couple wanted to have a child. They wanted to use a known donor. A man came forward and provided sperm. The terms of the agreement–if there was agreement–about what his relationship with the child are disputed. One child was born in 2004 and a second in 2006. In both cases the man who had provided sperm was listed on the birth certificate. He has, however, not had any contact with the children since 2010.
The women applied to the court to have the man’s name removed from the birth certificate and have the second mother’s name added. They did so because Australian law provides that under circumstances like these (the two women living together, the man providing sperm) the second woman is presumed to be a legal parent and the man is not. (This law apparently took effect in 2010, and I wonder that it can have retroactive effect, since both children were conceived before 2010. ) In other words, the second woman is a legal parent and the man who provided sperm (a genetic parent) is not a legal parent.
I was particularly struck by a couple of paragraphs from the blog which in turn quoted from the judge:
Justice Atkinson stated that the “only real issue for this Court to determine is whether in view of [State law], the legal parentage of the children recorded on their birth certificates is incorrect” and “a Register of Births, Deaths and Marriages is… a register of statistical and evidential information mainly for the purposes of succession law. It is not a register of genetic material.”
Accordingly her Honour held that because the law provided that the non-biological mother was a “parent” and not the sperm donor, the donor’s name would be removed from the birth register, and the non-biological mother’s name added instead.
In sum, it appears that Australian law as to birth certificates parallels US law–the vital records list legal rather than genetic parentage. This is offered as a descriptive statement, by the way. As I’ve said many times, one could imagine other systems. And one could supplement the existing system to ensure that children have access to information about genetic lineage if/when they want it.