SA's surrogacy laws to start in September

South Australia's new surrogacy laws are to start from 1 September. Yesterday the South Australian Governor signed a proclamation stating that  the Surrogacy Act 2019 (SA) is due to commence on  1 September. All of the Act is to start that day, except for the donor registry provisions, which are to start on a date to be advised.

The changes in South Australia make it easier to undergo surrogacy, and include:

- the ability for the first time for singles in SA to undertake surrogacy. (Previously they either put it off, or went interstate or overseas.) I was glad that finally there is to be an end to this discrimination in South Australia. This was a change that I had sought. I had hoped that this discrimination would have been removed when the South Australian Parliament removed discrimination against same sex couples back in 2017- but it was not to be for singles at the time. The then Weatherill government did not have the numbers in the Upper House, so singles were again passed over. This time around, finally, they have been allowed to undertake surrogacy in South Australia. HOORAY!
- the ability to choose their IVF clinic. In the past South Australian intended parents were restricted to choosing an IVF clinic in South Australia. I specifically asked to allow South Australians to be able to choose an Australian clinic of their choice. This was listened to! Now South Australian intended parents can choose where they want to do IVF, whether with a South Australian IVF clinic or an IVF clinic elsewhere.
- the recognition of the bodily autonomy of surrogates. Surrogates will have the clear right to control their pregnancy and child birth- like any other woman. I sought that this provision be included. I was especially proud that South Australia has legislated for this. This provision started in the Queensland Surrogacy Act, and has been copied in the Tasmanian Surrogacy Act. It spells it out- clearly. Surrogates who have been clients of mine have appreciated that that they have control over their bodies.
-the human rights of all involved are recognised. This was another provision I sought.  I was concerned that the human rights of the partner of the surrogate, as well as that of the intended parents and especially that of the child be specifically recognised in legislation. This has now happened for the first time, anywhere in Australia.

The Surrogacy Act  2019 (SA) replaces provisions of the Family Relationships Act 1975 (SA) that covered surrogacy, so that SA has, for the first time, comprehensive laws about surrogacy in the one Act of Parliament.

Where do Australian intended parents go for overseas surrogacy?

The US remains the dominant country where Aussies go for surrogacy, according to statistics from the Department of Home Affairs, with 95 Aussie children born there obtaining Australian citizenship by descent in 2018-2019 year.

Australian intended parents seemingly go everywhere that surrogacy might be available, according to statistics from the Department - which also reflects our status as a country of immigrants. Countries that would seemingly have no association with surrogacy nevertheless are countries that Australian intended parents have gone to over the last few years. I have coloured in yellow where surrogacy clients of mine have come from or have attempted surrogacy journeys. The top five 2018-2019 countries are marked in blue. Surrogacy clients of mine have completed surrogacy journeys in all top five countries.


-Argentina
-Bangladesh
-Brazil 
-Cambodia
-Canada
-China 
-Georgia
-Ghana
-Greece
-Hong Kong
-India
-Iran
-Iraq
-Italy
-Jamaica
-Kazakhstan 
-Kenya
-Malaysia
-Nigeria
-Pakistan
-Panama
-Papua New Guinea
-Poland
-Russia 
-South Africa
-South Korea
-Sri Lanka
-Switzerland
-Thailand
-Ukraine
-United Arab Emirates
-United Kingdom
-United States
-Vietnam

Of the 232 Aussies babies born overseas via surrogacy who obtained Australian citizenship by descent, 196 were born in the top five countries. The top five countries in the 2018-2019 year were:

Rank	Countries	Aussie babies born
1	USA	95
2	Ukraine	61
3	Georgia	16
4	Canada	14
5	Thailand	10
Total of top 5		196

Why do people go overseas for surrogacy from Australia?

The simplest reason, I hear again and again, is that Australian intended parents go on overseas surrogacy journeys  because they cannot find a surrogate in Australia. Official figures bear this out. The Department of Home Affairs keeps statistics  for all those children who have obtained Australian citizenship by descent through overseas surrogacy journeys.

There is no catch all statistic of the number of children born through surrogacy in Australia. However, the Australia and New Zealand Assisted Reproduction Database tells the story of the number of births through IVF clinics that were surrogacy births. For every child born in Australia through surrogacy, roughly three were born overseas.

These numbers demonstrate:

- all the posturing by politicians to stop Australians undertaking commercial surrogacy overseas didn't deter them, and still doesn't. Instead, it spurred intended parents  on to go overseas. Changes that came with the Surrogacy Act 2010 (NSW) in early 2011  made it plain for the first time that people in NSW undertaking commercial surrogacy overseas were committing a criminal offence. Given the lag time it takes to undertake surrogacy, the enormous publicity associated with the change made it plain  to intended parents not only in NSW but elsewhere that surrogacy was available overseas- showing a huge jump in numbers from less than 10 babies born overseas in 2010 to 266 in 2012.

- there continues to be a shortage of surrogates in Australia. Australia continues to export intended parents looking for surrogacy somewhere else, instead of having more surrogacy occur at home.

Some Australians go back to the country that they migrated from. We therefore see small numbers of babies born in countries such as Iran, Iraq, Bangladesh, Ghana and the UK for example.

The then heads of the Australian family law system, then Chief Justice of the Family Court, Diana Bryant, and Chief Judge of the Federal Circuit Court, John Pascoe, called either the enforcement of the overseas surrogacy laws- or their abolition. It is clear, as the numbers demonstrate, that they don't work, and should be repealed.

Financial year	Born in Australia	Born overseas
2019	NK	232
2018	NK	170
2017	62	164
2016	45	207
2015	52	246
2014	36	263
2013	35	244
2012	19	266
2011	23	30
2010	16	<10
2009	19	10

Babies stuck in the Ukraine

The video by Ukraine's largest surrogacy agency Biotexcomm of so many babies stuck in a nursery, unable to be taken back by their parents to their home countries is shocking. It occurred because Ukraine remains in lockdown. It seems that any loosening of the international borders in the Ukraine will at best be later this month. In the meantime, parents (and, more importantly, the babies) have to wait.

The video regrettably demonstrates the obvious. When choosing a country for surrogacy, choose a country where the rule of law is paramount- and laws that can arbitrarily close borders to the parents of children are not present.

By contrast, intended parents who have undertaken surrogacy in the US and Canada have been able to get there and get home with their children, no matter how many more difficulties there have been now with the pandemic.

Getting to the US and back

Today I was asked the $64 million question: if we start our surrogacy journey to the US now, will we get there and be able to bring our baby back? Quite simply the answer is yes.

When travel restrictions started two years ago, I was of the view that intended parents would still be able to get to the US (or Canada) and bring their babies home- but the journey would be slower, harder and costly. It would still be doable.

While travel conditions next year are impossible to predict, they are unlikely to be worse than now. Now that we have had a couple of months of travel to and from with the pandemic, it is possible to realistically see what lies in store for intended parents.

Creating embryos

The American Society for Reproductive Medicine, like the Fertility Society of Australia, has advocated the gradual reopening of IVF clinics. IVF is currently being undertaken again in the US. This should not hold up the process.

Matching with the surrogate

I am not aware of any new delays with matching. I have been asked by clients- should I sign an agreement now or wait until the pandemic is over? On the principle that a bird in the hand is worth two in the bush, my view is to sign now. You won't know how big the queue will be after the pandemic is over.

Leaving Australia

As seen in my post Getting out of here, getting out of Australia is difficult but not impossible. All of my clients to date have managed to leave- but not all on time, and not all on the first attempt.

Flying there

Until recently there have been only two ways to  fly to the US:

- United Airlines from Sydney/Melbourne to San Francisco.
-Qatar Airlines via Dohar.

Recently Emirates has recommenced flying from Sydney and Melbourne.

Qantas remains suspended until the end of July.

Arriving in the US

Intended parents travelling to the US will either rely on an ESTA (visa waiver) or occasionally obtain a B1 visa. I am told that ESTA issuance is suspended. I was told that those landing in the US would still face the discretion of the US government officer at the port of arrival as to whether or not they could enter the US. Experience from my clients has taught me that, instead, they have been able to enter unimpeded, though one unfortunate client was briefly detained on arrival and questioned- then warmly welcomed to the US once surrogacy was explained.

Attending at the birth

Rules vary hospital by hospital as the pandemic continues about whether a parent can attend the birth.

Coming home

In the past, Australian intended parents typically obtained paperwork in this order:

- court order that they are the parents (though in some places post-birth)
- birth certificate
-US passport for the child
-Australian electronic travel authority (for the child to travel as a US tourist)


This approach has hit two snags:

1. US passports are not being issued except in life and death cases (and surrogacy is not one of those, apparently)
2. Australia is not issuing electronic travel authorities.

There have been unconfirmed reports that Australia is not issuing tourist visas to these babies. Instead, Australian intended parents have been seeking Australian citizenship for their babies- and it being granted in as little as 1 to 5 days.

In some places there have also been delays in the issue of court orders and birth certificates.

Arriving in Australia

NSW authorities have permitted parents and their newborns to keep flying interstate to get home. Clients who were flying back to WA were allowed to self-isolate for 14 days at home. Clients flying back to SA had to do so in government quarantine.

Clients landing in  Brisbane sought exemption from the 14 government quarantine on compassionate grounds- on the basis that they would be spending 14 days self-isolation at home. This was refused. However, parents with new born twins were allowed the exemption.

Finally, words of warning

In some parts of Australia- ACT, NSW, Qld, SA and WA it is or may be a criminal offence to engage in commercial surrogacy overseas. It is important to get good legal advice before embarking on the journey to make sure that you are not committing an offence. The assumption that all surrogacy in the US is commercial surrogacy is not accurate.

Getting out of here, getting out of Australia

It's now been just over 2 months of the overseas travel ban. All of my clients who applied to go overseas have been able to leave, though not all on the first attempt, and not all in a timely manner. What has been clear is that after a few stumbles, when government officers were overwhelmed with demand from panicked intended parents and others, that intended parents are getting overseas, even though sometimes it's been less than smooth:

• at commencement, one client managed to get approval after two days.
• another couple, husband and wife, managed to get approval at different speeds- one after 12 days and the other after 14.
• one client had to reapply- then got approval.
• one client was told his first application was refused- and come back with certain paperwork. He then reapplied- was refused and told to come back with different paperwork. He then did so on his third application- and was accepted. 
• a couple's application was delayed to such a degree that they missed the birth of their child.

It is important to assume that you will not be there for the birth of your child and to make sure that you have put in place appropriate guardianship arrangements, just in case.

When making the application to leave for overseas on compassionate grounds, it's a good idea to lodge the application as soon as possible. The paperwork that should be considered to go with the application, being lodged at the same time:

• a copy of the surrogacy or gestational carrier agreement
• a statement by the hospital or IVF clinic as to when the child is due to be born and where, and your involvement as a parent
• a letter to similar effect by your overseas lawyer/surrogacy agency
• if you have a pre-birth order, a copy of that order
• a letter by your Australian lawyer

Of course, each of these documents needs to be in English. You should set out as succinctly as possible in the application as to the need to travel and why it is an exceptional circumstance requiring you to be there, and what hardship will be caused if you are not.

If you have travle bookings, set these out. Alloe for two weeks or more for the approval to be granted.

Approval will be to allow you to fly from one airport, for example, Sydney. You can change your flights and dates, but not the airport. If you decide to fly from a different airport, you will have to apply for a new approval, and start the process again. Take care with your flight bookings!

COVID19 and human reproduction joint statement

Several of the world's peak reproduction groups, the American Society of Reproductive Medicine, the European Society of Human Reproduction and embryology and the International Federation of Fertility Societies have issued a joint statement about coronavirus and human reproduction:

The American Society of Reproductive Medicine, the European Society of Human Reproduction and Embryology, and the International Federation of Fertility Societies have affirmed in a joint statement that reproduction is an essential human right that transcends race, gender, sexual orientation, and country of origin; a human right to which the COVID-19 pandemic has posed unique threats and challenges. Reproductive health care professionals are in a special position to provide advocacy for this right and promote the health and well-being of their patients.

Declaration of principle

Reproduction is an essential human right that transcends race, gender, sexual orientation, or country of origin. Infertility is the impairment of reproductive capacity; it is a serious disease that affects 8-12% of couples of reproductive age and harms physical and mental well-being. Infertility is time-sensitive, and prognosis worsens with age. While there is no cure for most causes, the disease is most often treatable, and the majority of patients who seek treatment can ultimately become parents. 

Defining the problem

The COVID-19 pandemic presents a unique global challenge on a scale not previously seen. The infectivity and mortality rates are higher than previous pandemics and the disease is present in almost every country. The propagation and containment have varied widely by location and, at present, the timeline to complete resolution is unknown. In the earliest stages of the pandemic, the American Society for Reproductive Medicine (ASRM) and the European Society of Human Reproduction and Embryology (ESHRE), independently recommended discontinuation of reproductive care except for the most urgent cases. More recently, with successful mitigation strategies in some areas and emergence of additional data, the societies have sanctioned gradual and judicious resumption of delivery of full reproductive care. In this document, ASRM, ESHRE and the International Federation of Fertility Societies (IFFS) have come together to jointly affirm the importance for continued reproductive care during the COVID-19 pandemic.

Reproductive medicine is essential

Reproductive care is essential for the well-being of society and for sustaining birth rates at a time that many nations are experiencing declines. During the pandemic, reproductive medicine professionals should continue to:

1. Advocate for the well-being of patients.
2. Monitor local conditions, including prevalence of disease, status of government or state regulations, and availability of resources.
3. Implement proactive risk assessment within their practices prior to restarting services.
4. Prioritize care and judiciously allocate use of limited resources using medical criteria.
5. Counsel patients about all options, including deferring evaluation and treatment.
6. Adhere to active risk mitigation strategies to reduce the risk of viral transmission.
7. Develop clear and codified plans to ensure the ability to provide care while maximizing the safety of their patients and staff.
8. Remain informed and stay current regarding new medical findings.
9. Develop or refine robust emergency plans.
10. Be prepared to interrupt medical treatment if conditions warrant discontinuation.

Research needed

In addition to helping patients, reproductive medicine practices are uniquely positioned to gather data and help to further COVID-19 research.

1. Reproductive medicine professionals and practices are essential front-line resources for screening, monitoring, and assessing the prevalence and impact of the disease on patients and their progeny through Point-of-Care data collection.
2. ESHRE, ASRM and IFFS are committed to continuous monitoring of the effects of COVID-19 on gametes and reproductive tissues, collecting data on pregnant patients infected during the pandemic, and assessing the outcomes of mothers and neonates.
3. Examples of these research and registry efforts follow:
   1. In the U.S.A., the ASPIRE (Assessing the Safety of Pregnancy In the Coronavirus Pandemic) Study is a nationwide prospective cohort study of pregnant women and their offspring during the COVID-19 pandemic. All patients under the care of a reproductive medicine specialist who conceived spontaneously or with assisted reproductive technology (ART) between March 1st and December 31^st are encouraged to participate.
   2. ESHRE is gathering global case-by-case reporting on the outcome of medically assisted reproduction (MAR) conceived pregnancies in women with a confirmed infection (https://nl.surveymonkey.com/r/COVID19ART).
   3. The affiliate society of ASRM, the Society for Assisted Reproductive Technologies (SART) is including mandatory COVID-19-related questions in their Clinic Outcome Reporting System (CORS) registry of assisted reproductive technologies (ART), which accounts for over 95% of all ART cycles in the U.S.A.
   4. ESHRE is gathering data and mapping MAR/ART activity during the pandemic, country by country whether and /or when they stopped offering treatment and when they have resumed care.
   5. IFFS is conducting COVID-19-related periodic surveys to assess global trends in access to MAR/ART services.

Final thoughts

Reproductive care is essential and reproductive medicine professionals are in a unique position to promote health and wellbeing. In addition, ASRM, ESHRE and IFFS are collaborating to advocate for patients and to gather data and resources to enhance the understanding of COVID-19 as it pertains to reproduction, pregnancy, and the impact on the fetus and neonate. The lessons learned from these experiences will be useful as humanity deals with future pandemics.

Representatives:
Anna Veiga – ESHRE/Spain
Luca Gianaroli – ESHRE/Italy
Steve Ory – IFFS/USA
Marcos Horton – IFFS/Argentina
Eve Feinberg – ASRM/USA
Alan Penzias – ASRM/USA