Australian Birth Certificates And What They Mean

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.

(Emphasis added.)

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.


32 responses to “Australian Birth Certificates And What They Mean

  1. Well clearly the law that he based his decision on is at odds with the reason for collecting the information as well as the health of the entire nation and the laws need to be corrected. I believe donor offspring activist Damian Adams is working on correcting the contradiction in the law trying to get his birth record corrected there in Australia. Why would they not simply adopt why skip the important step of who the bio parent is and that they are passing the torch as it were.

    All these laws are set up to make the bastard an unequally conceived person with fewer rights rights to information that is of no medical importance. Horrid What is wrong with step parenthood.

    • First, the judge is a she–a small point, I know, but I like to get it right.

      Beyond that, what’s at issue here isn’t the collection of information–I don’t know a thing about Australia collects this information, but it may well do just what the CDC does here. The information collected may show genetic parentage.

      But this isn’t about what information is collected–it’s about what is shown on this one particular vital record. The judge says that this record is mainly for the purposes of inheritance law. I assume that the judge is right about that–she surely knows more about it than I do. In the absence of a will, one would inherit based on legal (rather then genetic) parentage. So it seems that showing legal parentage is suited to the purpose. Thus, if what you are saying is that the decision is inconsistent with the purpose of the record it looks to me like your wrong.

      • Can you show me where the purpose of the birth certificate in Australia is for inheritance? Because using it for something is different from its purpose and I believe it says department of health on it and is a medical record according to law there as well. You know signed by doctors and all? Seriously if it’s a medical record used for inheritance because its a fact why not have the adoption paper establish adoption fact and then the kid does not loose anything.

        • It’s quote from the opinion in this case that is quoted in the blog post I linked to.

          I would never claim that this is the only way to set things up, but this is a pretty standard way to set things up. Birth certificates–the ones issued by the state departments of vital records–reflect legal family relationships. It looks to me like that is how it is in AU as well.

          • No I meant in their law. Not in someone’s statement. People twist things around to suit their preferences. Judges are people. Lawyers are too. I wanted to read what the law said. That’s OK I guess I will go look for myself and report back. I know Damian is working on overcoming this problem.

            • Actually when a judge issues an opinion it is law, too. That’s why Supreme Court opinions are given such importance. think what you meant was that you wanted a statute?

      • OK getting closer to the actual law but still regurgitated by the Agency that registers births – here is from the Australian website on birth registration correction
        Adding a parent’s details. The adding a Mom in the case of same sex relationships code below totally contradicts the biological requirement for fathers stated above. So my question is how is it fair to the kid that some people are required by law to have biologically accurate parental infomation on their birth records but the child raised by mom and partner gets stiffed out of a medically accurate record?

        Adding a father’s details. The Registry allows an addition to details on a birth certificate to add the biological father’s details.Only the biological parents of a child may add a father’s details to a birth registered in NSW.

        Adding a mother’s details. The Miscellaneous Act Amendment (Same Sex Relationships) Act came into effect on 17 September 2008. Subject to the requirements of the Act, both women in a same sex de facto relationship may now be recognised on their child’s birth certificate. Where a woman is in a same sex de facto relationship, the other mother can be added to the birth registration under the provisions of S.14 Status of Children Act, 1996.

        • I would guess that this is indeed the law that the judge was to interpret.

          I don’t think the statute is contradictory. The very fact that it provides for the listing of the second mother seems to show that the certificate isn’t meant to be a record of genetic lineage. Neither does it say that the genetic father must be listed. It also looks like you get a new birth certificate after an adoption, fwiw.

          I’m hardly an expert on Australian law, but it seems to me that this is about which people can be added to a birth record–and those people have to fall into one of two categories: birth fathers (which I think we should assume means genetic fathers) and lesbian co-mothers.

  2. Julie,

    Is there another country out there that does it differently and if so what do they do?

    • You mean a country that uses birth certificates as records of genetic lineage? I don’t know. I cannot think of one where they are used that way. But there’s a lot I don’t know, so my not being able to think of one isn’t conclusive.

      • I guess what I am trying to understand is if this is the way countries are doing it then it must be the proper way a birth certificate is being used. The argument that it is a “health” record is invalid.

        • To me, part of the problem with taking the conversation in this direction is that I don’t believe there is any clear meaning to terms like “health record” and “medical record,” I think of medical records and I think of what my doctor maintains–all the records of my treatment, my health history and so on. My birth certificate isn’t included in that. (Perhaps more relevantly, my kids–who have had a single health provider their entire lives–don’t have their birth certificates in their health records either.) But clearly other people mean other things when they say “medical record” or the like. If we start with different ideas about what a “medical record” is then we can hardly expect to agree on whether something in particular is in/out of that category. Hence, I don’t think the line of discussion is productive.

          I think (and I stress the word “think” because I do not know) that it is fairly common for governments to issue documents that identify legal parentage. I don’t know whether there are places where governments issue documentation of genetic lineage.

          • Yes actually your birth certificate is included in that and it is covered by Heppa laws for hospital record keeping.

            • I wonder if we’re disagreeing because we’re talking about different documentation? that’s possible, of course. But I actually have better knowledge of what is in my medical records and those of my children then you do, and I can tell you that neither contains the certificate of live birth issued by the state in which we were born.

              My kids’ birth certificates were issued by the state well after we left the hospital. I got copies but never gave them to the health care provider. The provider has never asked for them. And I don’t even have a copy of my own, so I’d be pretty surprised if my doctor did.

              I’m sure that if they were in that medical record they would be protected by HIPPA. But since they aren’t, I don’t believe HIPPA applies. There are, however, restrictions on who can get a copy of a certificate from the county office. Those do protect privacy.

      • Has there been a case where someone successfully got their birth certificate corrected after a paternity test showed they had a different father than their legal father, but their legal father still remained the legal father? Like say Ronan Farrow who will inherit from Woody Allen, but he might discover he’s really the son of Frank Sinatra and want that officially recorded on his birth certificate, for his children’s sake (so that they can consider Sinatra to be their grandfather and not Allen?)

    • Greg,

      The UK does it differently – The Birth Certificate is NOT amended when an adoption occurs. Adoption Certificates are created.

      Birth Certificates are part of the Family History category along with death certificates, marriage certificates, etc..

      • I wasn’t referring to adoption and amended birth certificates. I was referring to the idea of it not being a medical document or proof of genetic lineage.

        I’m assuming the adoption certificates are more widely accepted than adoption decrees are in the US. That’s why that wouldn’t work in the US.

  3. So this person just won’t get a birth record that lists their mother and their father when other people do and the state will even help find them for them – but this person does not because they have an unrelated stand in. What is adoption for then? It seems like you pay enough to be there on the day of birth and you can just skip the court approved adoption

    • I could as well say that everyone gets the same thing–a certificate that lists their legal parent(s). For some people those people are also their genetic parents. For other people those are not their genetic parents. Were it otherwise I could say that giving some children certificates with their legal parents on them but denying other children the same is unequal treatment.

      All this does is send us back to the initial question of what these certificates are supposed to reflect. I know you do not like it, but the current state of the law is that they reflect legal rather then genetic relationships.

      • Isn’t there an element of perjury for naming someone who is not the genetic parent, when the mother is asked for the name of the father? Is she really only asked for who will be acting as her child’s other parent? Do VAP forms not have any language requiring the person to believe it to be true?

        • It depends on context, I think. VAP forms do require oath and are about genetics and so it would be perjury. But in a social setting when adoptive parents identify themselves as parents, that’s not lying at all. When I register my kid for school they only care about legal status, so I check “parent.”. It’s not perjury to list a husband on a birth certificate where the child is conceived via donor sperm, either, because the husband is the legal father.

          • Is it perjury to list a man who is not a husband knowing that he is not the genetic father? (Does listing a man who is not a husband always require a VAP by the man, or can it be done without a VAP?) Is a mother’s husband always listed as the father, or is it possible to list another man? Is there ever a paternity test to decide who is named as the father?

            • Perjury is a pretty specific thing–lying under oath, basically. Most people aren’t under oath most of the time–so when people lie it may be morally wrong, but it isn’t perjury. If you lie on a VAP you are subject to criminal penalties for unsworn falsification, I think, which is a crime technically distinct from perjury.

              If an unmarried woman gives birth, the genetic father may become the legal father in a variety of ways–one is the VAP (and it’s designed to be easy). But there are others. Exactly how will vary place to place.

              The other questions you ask are harder to answer. Most states–perhaps all states–start with a presumption that when a married woman gives birth the husband is the legal father. That presumption can be rebutted by some people–but who and how varies state to state. You’ll find a lot of posts about this. Sometimes someone can use genetic testing to defeat the husband’s legal parentage–but exactly who can and under what circumstances will vary. In general, the husband will be listed on the birth certificate at the outset.

              • Can an unmarried woman name someone who is not the genetic father as the father? Is that considered her choice, or is she supposed to name the person she believes is the genetic father? Is whoever she names listed on the birth certificate, or does that person have to admit paternity? If so, and its a crime to lie on a VAP, then it seems the names listed are indeed expected and legally required to be the genetic parents.

                • I think if a woman identifies a man as the genetic father she is expected to do so honestly. But there are other ways for an unmarried man and woman to establish his legal parentage besides identifying him as the genetic father. They could, for example, get married. If the unmarried woman marries before the birth then her new husband will be the presumed father of the child (at least in some states) without any assertion about genetics. Or they can live together for a specified period, with the man taking on the role of parent. Again–in most places this will give him a presumption of parenthood without any assertion about genetics being part of the picture.

                  Naming a person as “father” on a birth certificate typically does not make the person into a legal father. It may be evidence and it may give rise to some presumption in some places. But it’s not the same as a VAP–which is also signed by the man involved.

                  I am not sure I’ve answered your question, but overall I’d say that while it is quite clear that who you name on a VAP is supposed to be the genetic father, it is not clear that is the case in other contexts.

  4. if it isn’t about birth, it shouldn’t be called a birth certificate.

    • Perhaps it should be called something else. “Birth certificate” actually suggests to me that it should list the woman who gave birth–no matter whether she is genetically related or not.

      How about three separate certificates: A certificate of legal parentage (that would show legal parentage and could be changed if legal parentage changed), a birth certificate (that would show who gave birth, the stats of the child and date/time and could not be changed unless there was a mistake in recording things), and a certificate of genetic lineage or pedigree (that would show genetic parentage and, once established, would not be changed.) Each of these documents would be useful for different things. One note: While we do generally collect the information necessary for the first two documents already, we do not collect the information for the last one–so we would have to do that in order to issue those documents.

    • That’s the thing is that I think the name of the document confuses people as to what it’s purpose is. Great point Ki.

      • I think the other thing that confuses matters is that some things on a birth certificate are historical facts and don’t change–like date of birth or weight at birth. Other things (as currently used) reflect legal relationships (like parentage) and so can/do change. No real way you can tell them apart by looking at the paper, so it is indeed confusing.

    • If it’s not about health it should not be issued by the department of public health. Should not be signed by a doctor. Should not be counted as evidence of reproduction and used as a statistic to estimate the health of the nation’s population.

      • I’m really only willing to go one more round on this, because I suspect we’re talking about different documents. Here is a link to a generic WA version of the document I mean:

        (I think newer versions list “parent” and “parent.”) It isn’t signed by a doctor–in fact, it isn’t signed at all. A certified copy does have a raised seal. And the information on it is sparse, to say the least. If you want a copy here is how you get one: It is not clear to me that there are any particular privacy protections for this document.

        I wouldn’t call this a medical record. You are of course free to continue to do so if you wish, but I really do not see that this gets us anywhere.

        • I don’t see that this gets us anywhere either. I really want to thank you Julie for several years of top notch education. I believe that at some point you will join the effort to equalize the rights of donor offspring after the children you raise are grown because I think you do care you just don’t understand yet exactly how the process objectifies and abuses people. Your a nice person at heart. I actually believe that with all my own heart. I think you believe you are doing the right thing and I don’t think you understand how the process violates the equal rights of the individuals who are victimized by it. I like you Julie. Your right we won’t get any further. I think you’ll really help donor offspring some day. until then I wish you luck with the caveat that I hope nothing you do separates any more people from their biological families….

          Peace and thanks for all you have done to educate me I’ll watch your blog quietly with interest now. Bye Ki and By John. Luv you guys. I have a lot of work to do many broken families to reunite. I’m confident in my knowledge now thanks to all of you. Peace. I’ll miss u

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