Editorial Note: Response to below article - This article refers to the emerging trend in surrogate adoptions, and this will clearly continue to be a thorny ethical issue  in the nature of parenting, especially given the role of technology.

My concern with this article is not so much on the increasing role of non-biological gay parentage, which simply seems to be an extension of the step-parenting role.

I do however note the inconsistent legal application of the concept of “parental rights”, as evidenced in this judgment amongst others, when it comes to gay couples.

In Australia, the debate about Gay Adoption and Surrogacy has consistently focussed on the rights of gays, whereas typical Family Court matters apparently focus only on the best interests of the child.

It seems that where Human Rights on Parenting Matters are concerned, the Australian Courts have taken a decidedly hierarchical approach, quite possibly in unison with the trajectory originally determined by the very controversial and now discredited former Chief Justice of the Australian Family Court, Alastair Nicholson.

What seems to have developed is a type of pecking order, something along the lines of “Maslow’s Hierarchy of Family Rights”, or perhaps most adequately named “Nicholson’s Hierarchy of Family Rights”.

It is clear that in this pecking order, unborn children are at the lowest possible eb, with effectively zero rights up until about 21 weeks. Biological fathers are next in line, not as far down as embryos, but close to the bottom in any event.

Children themsleves are located somewhere in the middle, with their rights being insrcibed in law only, given that most family law cases seem to be motivated by the rights of others.

Gays and Surrogate Mothers seem to be secondary on this list, with Gays edging out Surrogates in most recent cases, especially when Surrogates have no biological connection to the child they are carrying.

Top of the list are biological mothers, who seem to have an unassailable position in Family Rights, with the universally assigned and arrely challenged rights in abortion, child-custody and parental responsibility matters.

Nicholson’s Hierarchy of Family Rights

10. Embryos

9. Biological (gay and straight) Fathers

8. Step Mothers

7. Step Fathers

6. Adoptive Parents

5. Children

4 Grand Parents

3. Surrogate Mothers

2. Gay (non-biological) Parents

1. Biological Mothers

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A male GAY couple who paid a surrogate mother to carry twins has won a major case for parenting rights.

The case comes as overseas surrogacy booms, with 350 babies expected to be brought to Australia in 2011, compared to 50 babies just two years ago.

The Advertiser can reveal the parenting rights breakthrough hot on the heels of Nicole Kidman’s shock new surrogate baby revelation and the success of TV hit comedy Modern Family, which features a gay male couple with a baby girl.

The 20-month-old girls were born in Mumbai to an Indian woman who carried eggs from an anonymous donor impregnated with sperm from one of the Melbourne men.

The couple went to the Family Court seeking full parental status for the non-genetic male partner.

“In this case, the children do not have the benefit of a mother, but they have the good fortune of having two fathers,” Justice Paul Cronin found.

“As a matter of law, the word ‘parent’ tends to suggest some biological connection, but … biology does not really matter; it is all about parental responsibility.”

Lawyer Susan Buchanan, who represented the Melbourne men at the Family Court, said the ruling was important.

“Obviously, it’s a decision of public interest,” she said. “In the special circumstances of the case, it was the other parent who had no genetic link to the child, had no status in relation to the child – it … attributes to him full parental rights.”

Ms Buchanan said the decision could pave the way for other same-sex couples to win full parenting rights.

The decision was welcomed by surrogacy advocates.

“It’s a major step forward having that kind of judgment because it sets a precedent,” said Sam Everingham, of Australian Families Through Gestational Surrogacy.

“Any judge would have seen that this is a modern family made in a fairly unconventional way.”

But Catholic ethicist Nicholas Tonti-Filippini said surrogacy should be discouraged because a “committee of parents” – surrogate, donors and commissioning parents – confused children’s sense of identity.

The Family Court made “parenting orders” in three international surrogacy cases last year for two couples and one single man returning to Australia seeking citizenship for the newborns.

http://www.adelaidenow.com.au/gay-dad-granted-rights-of-a-parent/story-e6frea6u-1225992631847