Sir Humphrey would be proud. Want a child via surrogacy in WA? Try 24 to 1

Yesterday the WA Lower House, on a conscience vote,  passed laws to amend that State's surrogacy laws to allow since men and gay couples to have access to surrogacy. The laws now make their way to the Upper House. This is a good thing. It is something that I called for last year.

An alarming statistic is that in the last 10 years a total of 10 babies- that's right- 10 babies or 1 a year have been born in WA via surrogacy. By contrast,  up to 250 babies have been born overseas through surrogacy to Australians in some years. If WA parents to be go overseas at the same rate as everyone else, then that means for every child born through surrogacy in WA up to 23 or 24 have been born overseas.

This reminds me of the old TV series Yes Minister, which ridiculed how governments were run. In one episode, the Empty Hospital, the Minister was appalled to know that a hospital was empty of doctors and patients- save that it was 15 months old, had a staff of over 500, and was up for  the Florence Nightingale Award for Hygiene:

https://www.youtube.com/watch?v=x-5zEb1oS9A


When the Surrogacy Act 2008 (WA) passed, it allowed single women, heterosexual couples, and lesbian couples to undertake surrogacy, but actively discriminated against single men and gay couples.

That discrimination continued unabated.

In 2015, Australia copped a shellacking at the UN Human Rights Committee in Geneva and as a result vowed to remove exemptions under the federal Sex Discrimination Act that allowed the States to discriminate against LGBTI people in the provision of assisted reproductive treatment and surrogacy. The federal government said it would end those exemptions by 1 August 2016. And indeed it did- except for Western Australia. For some reason, the exemption was continued for Western Australia until 1 August 2017.

In May 2017 I wrote to the WA Deputy Premier and Health Minister calling for the removal of this exemption. The response was that this would be considered by the Health Department. The next step was the holding of a review of ART and surrogacy laws in Western Australia. And now we have the bill- which will remove that discrimination if passed.

When the debate occurred yesterday, all the usual tired arguments in opposition as to the rights of the child were trotted out. Similarly, a gay MP and a lesbian MP spoke passionately in favour of the change.

The leader of the Nationals, Mia Davies, spoke passionately in favour of the change.

If the change is made, then it is likely that WA single men and gay couples will be able to access surorgacy at home rather than go abroad.

Victorian ART review

The Victorian Government is undertaking a review of assisted reproductive treatment law in Victoria.  The review is being conducted by Michael Gordon AM, a lawyer who is a former chair of the Victorian Assisted Reproductive Treatment Authority and Patient Review Panel.

Mr Gordon has said:

            “It is now a decade on since the last significant review of assisted reproductive treatment regulation in Victoria, and it is timely to reflect on the significant changes that have occurred since then, including:

·         changes to the number, ownership and management of assisted reproductive treatment clinics from the clinician-owned and led clinics originally established in Victoria;

·         great advances in treatments and technology for IVF and related procedures;

·         changes to social values and opinions, including changes to legislative rights and responsibilities;

·         changes to the Marriage Act for same-sex marriage and other changes dealing with gender and sexuality.”

Mr Gordon also says:

            “Assisted reproductive treatment offers many benefits, and it is important that it is not inappropriately limited by people’s ability to pay or by where they live, nor affected by inadequate knowledge or information, or by discrimination according to gender, sexuality, identity, race or other attributes.”

The review has identified a number of legal rights of access.  For example, section 47 of the Assisted Reproductive Treatment Act allows for the posthumous use of gametes or embryos where “the treatment procedure is carried out on the deceased person’s partner or in the case of a deceased woman by the woman’s male partner commissioning a surrogacy arrangement”.

The review comments:

            “This appears to restrict the posthumous use of gametes by people in same-sex relationships and by single women who may require a surrogate because they are unable to carry a baby themselves.  It may be timely to consider where there is an appropriate rational for such a restriction.”

The review notes that a single cycle of IVF treatment can cost well in excess of $8,000.  “Costs can quickly add up where multiple cycles of treatment are required.”

Furthermore:

            “Demand for donated gametes and embryos continues to rise, without a corresponding increase in the supply of donors.  This has resulted in shortages of donor gametes and increasing pressure on clinics to source donor sperm, eggs and embryos.  These shortages may be even more acute for people from diverse ethnic groups, who seek to source gametes/embryos from donors with a shared ethnic background.”

It was noted the small but increasing number of surrogacy arrangements and that the restrictions about finding donors and surrogates:

            “…designed to protect people from exploitation, may have the effect of leading people to make arrangements outside the regulatory framework and therefore without support.  It is understood that unmoderated online forums and discussion groups connecting potential donors and surrogates with intended parents have become common over recent years.  There is significant but undocumented use of these forums that may bypass the legislative restrictions on advertising.”

Compensation for donors and surrogates

The review states:

            “It has been suggested that there may be some lack of clarity about what constitutes reasonable expenses for donations.  This lack of clarity has resulted in different interpretations and different levels of compensation paid by different clinics within Victoria.  This could act as a disincentive to those who may otherwise be interested in participating on an altruistic basis or result in donors ‘shopping around’ between clinics to receive the highest level of compensation.

As to surrogates:

            “Victoria has among the most restrictive rules in Australia in relation to reimbursement of surrogates.  Unlike New South Wales, Queensland and Tasmania, for example, the Victorian regime does not allow for any additional insurance expenses incurred by a surrogate to be met by the intended parent, nor is there provision for lost income as a result of leave taken during pregnancy.”

Concern is raised about Victorians undertaking overseas surrogacy:

            “There can be complex legal issues associated with overseas surrogacy, depending on the nature of the agreements entered into and the laws of the country in which the surrogacy arrangement occurs…many countries where Australians may pursue surrogacy arrangements have little regulatory oversight or protection for surrogates or intending parents.  Reportedly, there is a rising trend towards multinational commercial surrogacy operations, with major players responding to tightening restrictions in one country by moving to another less regulated country.”

Furthermore:

            “There are risks for the child to be born.  Unethical surrogacy arrangements do not put the rights and interests of children to be born first.  Non-existent or inconsistent record keeping means that children born of surrogacy arrangements using donated gametes are unlikely to have access to information about their genetic history.

            For the surrogate, a lack of regulation can increase the risk of exploitation.  Health risks associated with pregnancy can be exacerbated through pressure to agree to risky procedures such as multiple embryo transfers or deliveries toned to meet the schedule of the intended parent.

            Finally, poorly regulated countries may also expose intending parents to risk of exploitation.  People may pay high sums of money and, if promised services are not delivered, there may be little opportunity for recompense.”

LGBTI people

The review states:

            “The language of the Act reflects the social attitudes and understanding of diversity that existed at the time it was drafted.  Over the last decade, attitudes and recognition of the rights and needs of LGBTI people have evolved dramatically, and LGBTI people are increasingly making use of assisted reproductive treatment services.  Seen through today’s lens some of the provisions of the Act appear outdated at best and at worst discriminatory…It has also been noted that the Act’s guiding principles state that “persons seeking to undergo treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion”.  It is time to consider if this is sufficiently inclusive or whether it should, for example, also extend to discrimination on the basis of gender identity and/or intersex status.”

Submissions to the review can be sent to art.review@dhhs.vic.gov.au.  Submissions close on Friday, 21 September 2018.

Israel: single women to have surrogacy, gays denied

Israel has passed laws this morning that extend surrogacy to single women- but not to single men or gay couples.

The laws when proposed were met by spontaneous protests in Tel Aviv by thousands of people, who in some cases blocked traffic. Protesters said that the laws were the first in many years that specifically targetted and discriminated against gay couples.

Until now, surrogacy in Israel has been only available to heterosexual married couples.

Likud Member of the Knesset, Amir Ohana, who is gay,  sought unsuccessfully to amend the Bill to enable gay couples to access surrogacy. He told of establishing a family through surrogacy, having to go abroad to do so and the difficulties this created: “When I and my partner wanted to establish a family, we were forced to go to a country thousands of miles away. The twins were born before full term and we could not be there. We turned the world upside down in order to find a Jew who didn’t even know me, who lived close by, to be there so someone would be there by their side.”

Ukraine clinic under investigation for using someone else's DNA

The Ukrainian Justice Minister announced two days ago that one of the largest IVF clinics, BiotexCom center for human reproduction, was being investigated following an Italian couple finding out that their child did not have any of their DNA.

Under Ukrainian law, couples undergoing surrogacy are required to have a genetic link with the child, so that at least one of them is the genetic parent. The announcement is that an Italian couple who underwent surrogacy through Biotex in 2011 have discovered  following a DNA test undertaken in Italy that there is no genetic link between them and their child.

The Minister of Justice announced that other cases were being investigated. He called upon surrogates to help provide information to the Ministry in its investigations.

The Minister said that the Ukraine considered that what had happened amounted to "child trafficking" and that the Ukrainian government would sue the relevant clinic. He also said that new laws would be enacted to crack down on practices to prevent any further recurrences.

If this has been occuring, whose eggs were used? Given eggs donors are anonymous in the Ukraine, if record keeping is lax, then it may have been another woman's egg, even that of the surrogate.

Biotex has been a large and popular clinic for those seeking to undertake surrogacy in the Ukraine.

One might be forgiven for thinking that this is a long way from Australia, but the fact is that Australians have undertaken surrogacy in the Ukraine. According to Biotex's map it has representative offices throughout Europe, Asia, North America- and in Sydney and Melbourne.

Those undertaking surrogacy in locations that are developing countries or post-Soviet countries must take extreme care. It should never be assumed that IVF clinics and agencies are backed by some government guarantee or rigid regulation. They might be rigidly regulated- but it is very much a case of buyer beware.

I remember all too well the gay couple who went to a Thai clinic for surrogacy- man A and man B. Sperm was provided by each of the men. Man A's sperm was deemed better than Man's B. The couple were told that Man A's sperm was used to conceive the child. All went well. A child was born. Man A was named on the birth certificate as the father. A DNA test was undertaken. Man A was excluded as the father. It appears that Man B's sperm was used. Luckily this did not prevent the child obtaining Australian citizenship.

Or the gay couple who went to India in its heyday. Sperm was only provided by one of the men for legal reasons. The child was conceived and born. A DNA test determined that the man's sperm was not used. Who knows who the father was. Luckily, Australian authorities were sympathetic and allowed the child to obtain Australian citizenship.

Family Court: sperm donors are NOT parents

The Family Court of Australia in a recent decision has definitively determined that a known sperm donor to a single woman is not a parent under the Family Law Act because he is not a parent under the relevant Status of Children Act. 

The case, called Parsons and Masson,  decided unanimously by three judges on appeal has overturned the line of authority that began with Groth and Banks [2013].  In that case, the trial judge said that because the Family Law Act recognised two parents, then a known sperm donor  who wished to have an ongoing relationship with the child (when the birth mother was single) was a parent under the Family Law Act, despite the Victorian Status of Children Act that said that the birth mother was the only parent.  The Court ruled that because there was an inconsistency between the federal Family Law Act and the state Status of Children Act, then under section 109 of the Commonwealth Constitution, the Family Law Act prevailed over the Status of Children Act.

The decision in Groth and Banks sent alarm bells throughout IVF clinics because it means that men who were previously assumed not to be parents were now parents.  

Since that decision, it has been unclear whether donors were  or were not parents. Now that uncertainty appears to be at an end.

In Parsons and Masson, Mr Masson was a known sperm donor to Ms Parsons.  At the time of conception Ms Parsons was single.  Later, Ms Parsons developed a de facto relationship with a female partner whom she later married, also called Ms Parsons. 

Justice Thackray undertook a comprehensive review of case law.  His Honour said:

            “The line of authority followed by the primary judge effectively postulates that the relevant law is to be founded in the federal Act.  The appellants submit, in effect, that this is a constitutional heresy given that there is a State law with obvious application to the circumstances.  I agree, since this was a case heard in federal jurisdiction and it was mandatory for section 79 of the Judiciary Act to be applied.”

Section 79 of the Judiciary Act says in general terms:

            “The laws of each state or territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution of the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

Accordingly, his Honour found that as the sperm donor was not married to the birth mother or in a de facto relationship with her, it followed that under the Status of Children Act of New South Wales that he was presumed not to be the father of the child and therefore ought not to have been treated as being her parent for the purposes of the Family Law Act.

His Honour said:

            “For completeness, [the child] was never adopted by the respondent, in which case she would be his child regardless of biological origin, and she was not conceived under a surrogacy arrangement, in which section 60HB would come into play.

            There are no other provisions of the federal Act which were said to have any relevance in determining who is a “parent”…

            It follows from this survey of potentially relevant provisions of the federal Act that all three bases upon which her Honour found that the respondent is [the child’s] “parent” cannot be supported by reference to the text of the federal Act alone.

            First, while as a matter of ordinary English usage the word “parent” will be satisfied by identifying the male whose gametes were used for a child to be conceived, biology alone is not determinative in deciding who is a “parent” for the purposes of the federal Act, since a biological connection is not required.  This can be seen from the provisions dealing with adoption, surrogacy and artificial conception procedures involving consenting partners.

            Secondly, there is nothing in the federal Act to suggest that the expectation of a man that he will “parent” a child born using his genetic material is relevant in determining whether he is a “parent” for the purposes of that Act.  The only thing that comes close is the use of the words “intended parent” in section 60H(1), but that subsection concerns spouses or de facto partners, and it is not suggested the respondent was ever married to or a de facto partner of the first appellant. 

            Thirdly, there is nothing in the federal Act to suggest that the state of knowledge of the imputative father about the nature of the mother’s relationship with another person is of any relevance to his status in relation to the child.  If the child is born to a woman who is married to, or in a de facto relationship with, another person, and the provisions of section 60H(1) are otherwise satisfied, then regardless of his state of knowledge, the male who had provided the genetic material is not the father of the child, since the child is deemed not to be his.”

And if there were any doubt whatsoever, his Honour went on to say:

            “Whatever may have been said by trial judges, it has always been accepted by this Court that the intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act.  So much should be clear from the distinction the Act draws between a “parent” and a “step-parent” – a distinction which would apply even to a male who had lived with and treated a child as a member of his family from the time of birth.”

The time for appeal of this decision has not expired.  There is still the ability of Mr Masson to seek special leave to appeal to the High Court. 

This decision has given certainty:

1.      a donor of gametes whether known or anonymous is not a parent unless:

2.      the donor is recognised by State or Territory status of children legislation as a parent – typically having been married to or in a de facto relationship with the birth mother at the time of the procedure;

3.      or otherwise recognised as a parent through surrogacy or adoption.

The “heresy” of Groth and Banks is now at an end, subject to any appeal and determination by the High Court.