Securing the right to be called “mother”
Following a complaint to the Human Rights Commission, the Department of Internal Affairs has agreed to change its procedures, and allow two women to be named on a child’s birth certificate as “mother” and “mother”, or “mother” and “parent”.
Further, the Department of Internal Affairs has confirmed that women who have previously been designated as “other parent” on their child’s birth certificate can contact the Department, which will change their child’s birth certificate to name both women as “mother”, or one or both as “parent”. Additionally, the Department has confirmed there will be no cost to the women for this service.
Stewart Dalley, Associate at Ryken and Associates, took on the case of Jess and Stacy (and their young daughter Evie) on a pro bono basis, after reading of their plight in the New Zealand Herald.
In July 2005, amendments to the Status of Children Act 1969 (made under the Status of Children Amendment Act 2004) were enacted, enabling two women in a relationship with one another to both register the birth of a child who was conceived by one of the women using artificial reproductive technology (ART), such as using donated sperm.
Following the above amendments, the Department of Internal Affairs (which is responsible for registering births) issued birth certificates naming the woman who gave birth to the child as “mother”, and her same-sex partner as “other parent”. There was no legislative reason for the differing labels.
In August 2017, following the birth of their daughter Evie (who was conceived by way of ART), Jess and Stacy sought to register her birth and for both women to be named as “mother” on the birth certificate. The Department of Internal Affairs refused their request, claiming it could only designate the gestational parent as “mother” and her female partner as “other parent”.
In December 2017, Jess and Stacy, assisted by Mr Dalley, lodged a complaint with the Human Rights Commission, who in turn raised it with the Department of Internal Affairs. The claim provided that the Department of Internal Affairs was unlawfully discriminating against them on the grounds of gender and sexual orientation because heterosexual couples in the same situation were designated as “mother” and “father”, as opposed to “mother” and “other parent”.
The Department of Internal Affairs has now settled the claim and agreed to make the necessary changes. It has also issued Jess and Stacy with a birth certificate naming them as “mother” and “mother” of Evie – the first of its kind in New Zealand’s history, following the birth of an ART-conceived child involving two women.
The Department of Internal Affairs estimates 0.15% of birth registrations annually are for children born to female same-sex couples. Statistics New Zealand estimates there are approximately 60,000 annual live births in New Zealand. Accordingly, the change in practice to allow same-sex female couples to register a birth of a child conceived using ART as “mother” and “mother”, or “mother” and “parent”, impacts on approximately 100 couples annually.
Based on those figures, it is estimated that there are approximately 1,000 children affected by this decision (given the legislative change was in 2005), who can now request a change to their birth certificates at no cost to them.
Moving forward, the Department of Internal Affairs has committed itself to making changes to its channels for registering births, so that parents registering a birth of a child conceived by ART will be able to select “mother”, “father” or “parent” for the non-gestational parent. Further, all parents registering a child (irrespective of how conceived) will have the option of selecting “mother”, “father” or “parent”, as they prefer.
The Department of Internal Affairs expects the end-to-end process will be in place by the end of 2018 but, in the meantime, a manual input will be required by the Department.
The Department of Internal Affairs has also confirmed that further changes will be made over time to other life events information and forms – such as deaths, marriages and civil unions – to reflect these advances.
Mr Dalley notes that the case has sparked a lot of attention, and is keen to look at setting up a LGBTI lawyers’ group to look at other relevant issues. Those interested can email him in confidence at firstname.lastname@example.org.