The vexing
problem of surrogacy regulation:
THE VIEW FROM DOWN UNDER
THE VIEW FROM DOWN UNDER
International
Bar Association Conference
Sydney 10 October 2017
Sydney 10 October 2017
Stephen
Page[1]
1.
The
market to become parents
Many
of us have known from early childhood that our destiny is to become
parents. For many of us, that destiny is
greatly frustrated or prevented due to infertility, age, being single, being
trans or intersex, or in a same sex relationship. For those intended parents who can’t be
fruitful and multiply, the quest is as to how they become parents. In the past, the gap was met by adoption
practices. In Australia this pressure
led in part to the stealing of Aboriginal children from their parents[2] and the similarly shameful
removal of children from single mothers.
Those
options are no longer available. The
numbers are stark. In 1971-1972 when
Australia’s population was 13 million, the number of adoptions in Australia hit
an all-time high of about 10,000 children[3]. By contrast, the number of adoptions now has
hit an all-time low of 278 children, even though our population is now 24
million.
The
number of children in State care who are then adopted in Australia is extremely
low.
Intended
parents in the past have reached out overseas.
While well meaning, the 1993 Hague
Intercountry Adoption Convention has been criticised as being part of the
problem in that it has been asserted that the Convention, or at least the way
it is applied by some Australian State authorities has led to inordinate
delays, commonly in the order of 5 to 8 years for intended parents seeking
children through adoption. Currently, 82
children have been adopted internationally, primarily from the Philippines
(20), Thailand (18), South Korea (14) and Taiwan (16), the last two being
non-Hague countries.
In
addition, the historical rise of countries such as India and China out of
poverty into middle class has meant that children who were once available to be
adopted internationally from those countries means that they are no longer
available for adoption. Australian
intended parents have to look elsewhere.
The
rise of assisted reproductive treatment, which has occurred approximately over
the last 40 years, and pioneered in Australia, has resulted in many children
who would otherwise not have been born.
However, many people cannot access ART alone and need the assistance of:
·
Sperm donors;
·
Egg donors;
·
Surrogates.
1.1
Sperm
Donors
Amidst
reports of a dramatic call in fertility of Western men, there has been a
concomitant exponential rise in the need for sperm donors. Big sperm donor agencies exist in the US and
in Denmark, which then supply sperm to IVF clinics and intended parents
throughout the globe.
In
Australia we have a serious shortage of sperm.
Doctors attribute this in part due to our child focused laws (whereby
the child will be able to identify the donor after the child reaches 18) and
lack of payment to donors.
There
has been a rise in the number of lesbian couples in particular who have had the
help of known sperm donors. This has led
to at times a fraught legal environment for the lesbian couples and the donors.[4]
1.2
Egg
Donors
Australians
have travelled across the globe seeking eggs.
Quite simply, there is a severe shortage of egg donors in
Australia. Egg donation is a much more
intrusive process than sperm donation.
The American Society for Reproductive Medicine, for example, estimated that
the whole process for sperm donation, including counselling, takes one hour
whereas the process of egg donation takes upward of 50 hours, involving daily
injections and finalised with minor surgery in which there is a risk of ovarian
hyper stimulation syndrome and from that, death.[5]
Our
laws are designed to ensure that egg donors are not paid, punishable by up to
15 years imprisonment,[6] the concern being that IVF
clinics will take advantage of young women.
As
with sperm donors, Australian law reach out overseas. The regulation of egg donation in Australia
is governed by a Commonwealth/State and Territory scheme. The Federal or Commonwealth laws only apply
within Australia. The State and ACT laws
in some cases extend beyond Australia under what are called long arm laws. It is therefore possible for someone living
in Sydney, for example, to undergo egg donation in the United States and
inadvertently commit an offence in New South Wales punishable by up to 15 years
imprisonment even though to do so would be legal in California.
Clients
have reported to me that they have undertaken egg donation around the globe:
|
Continent
|
Country
|
|
North America
|
Canada
Mexico*
United States
|
|
South America
|
Argentina
|
|
Africa
|
South Africa
|
|
Europe
|
Georgia
Greece
Russia
Spain
United Kingdom
Ukraine
|
|
Asia
|
Cambodia*
India*
Malaysia*
Nepal*
Thailand*
|
*
Primarily associated with surrogacy which is now not widely available to
Australians there.
We
have seen South African egg donors flown to Australia due to perceived shortage
here. There has been a rise of internet
based websites to connect egg donors and intended parents. Nevertheless, clients have reported to me a
delay of two years or more for the availability of donor recruited egg
donors. Out of frustration, they look
for other means to become parents. In
March 2016 I visited Cape Town. At one
of the clinics there, the number of Australian couples attending as intended
parents for egg donation is 3-5 per
business day.[7]
2.
Surrogacy
For
some intended parents, there is no option but that of surrogacy, the option of
last resort. For a variety of reasons,
they have been unable to become parents by other means and they therefore
pursue the most complex manner of becoming parents.
In
seven of the eight Australian jurisdictions, surrogacy is available – but on a
non-commercial, altruistic basis. Between
2004 and 2012, each of the States and the Australian Capital Territory
legislated concerning surrogacy.
Regrettably, although the models are similar, they have some key
differences. There are substantial
differences between what expenses might be paid. For example, the payment of a surrogate’s
life insurance is allowed in Queensland, but an offence in Victoria is adding
to difficulties in a matter where the intended parents live in Queensland and
the surrogate lives in Victoria.
The
key overall feature, though, is that surrogacy is only altruistic. Quite simply there is a shortage of surrogates,
which is clearly seen from the number of children who are born through
surrogacy. It is estimated that each
year there are approximately 40 children born through domestic surrogacy
arrangements and greater than 250 born internationally.[8] The constant complaint I have heard from my
clients is:
1.
It is illegal for them to advertise for a
surrogate.
2.
Therefore they cannot find a surrogate.
3.
Therefore they wish to go overseas to
pursue surrogacy there.
As
with egg donation, there has been a rise of websites in which intended parents
and would-be surrogates link up. Clients
of mine reported in June 2017 that for every would-be surrogate on one of those
websites, there was a dozen single or couple intended parents. The odds are very much stacked against
domestic surrogacy and very much in favour of intended parents pursuing
surrogacy overseas.
3.
The
legal framework for surrogacy in Australia
Each of the States and the Australian
Capital Territory have legislation in place legalising and regulating
altruistic surrogacy. The Northern
Territory does not. It alone has no laws
concerning surrogacy. While it is
therefore legal to undertake any form of surrogacy in the Northern Territory,
in practice this does not happen. The
reasons are simple:
·
As there is no law in place to allow
surrogacy and therefore the transfer of parentage, it is unlikely that the
Supreme Court of the Northern Territory would make an order transferring
parentage from the surrogate and their partner to the intended parents.
·
National licensing requirements of IVF
clinics is that they do not engage in commercial surrogacy.
·
Given its small population, there is only
one IVF clinic in the Northern Territory.
The doctors are registered in South Australia. That clinic has decided over many years not
to provide surrogacy services because it cannot enable the transfer of parentage
from the surrogate and her partner to the intended parents.
3.1
Domestic
Surrogacy Regulation in the ACT, NSW, Qld, Tasmania and SA
In
the Australian Capital Territory, New South Wales, Queensland, South Australia
and Tasmania, the broad model of surrogacy regulation is as follows:
1.
The intended parents/surrogate and their
partner have independent legal advice.
2.
All parties participate in psychological
screening.
3.
The parties then enter into a non-binding
surrogacy arrangement – which is usually written. (It is required to be written in NSW, Qld, SA
and Tasmania, but may be oral in the ACT).
4.
Although not a requirement of any
legislation, before the surrogacy proceeds, Ethics Committee approval within
the IVF clinic is obtained.
5.
Treatment can then commence.
6.
After the child is born, counselling or
psychological assessment or both is then undertaken.
7.
A post birth order is made transferring
parentage from the surrogate and their partner to the intended parents.
3.2
Domestic
Surrogacy Regulation in Victoria and Western Australia
In
each of Victoria and Western Australia there is a state regulator whose
approval is required before the surrogacy arrangement can proceed. Victoria is unique globally for having five
regulators of its IVF industry, namely:
|
No.
|
Regulator
|
Role
|
|
1
|
National Health and Medical Research
Council
|
National regulator of IVF industry
|
|
2
|
Reproductive Treatment Accreditation
Committee
|
National regulator of IVF industry
|
|
3
|
Victorian Assisted Reproductive
Treatment Authority (VARTA)
|
Victorian regulator of IVF industry
|
|
4
|
Patient Review Panel
|
Victorian regulator covering presumption
against treatment when criminal history or child protection history arises
and regulator required to approve surrogacy arrangements.
|
|
5
|
Victorian Department of Health
|
General regulator of medical practices
in Victoria, works closely with VARTA and Patient Review Panel.
|
The
model in Victoria and Western Australia is similar to that in the other States
in that it is altruistic surrogacy where there is independent legal advice and
screening before the agreement is entered into, the approval of the relevant
IVF Clinic Ethics Committee before treatment commences and a post birth order
being obtained. In Western Australia
there must be a written agreement (which also is required to be signed by any
gamete donor) but in Victoria it can be an oral agreement.
The
key difference between Western Australia, Victoria and the other States is that
the approval of the statutory authority must be obtained before treatment can
be commenced. Western Australia mandates
a cooling off period as well. In Western
Australia the regulator is the Reproductive Treatment Council (which is also
the body to regulate IVF clinics). In
Victoria the authority is the Patient Review Panel.
4.
Discrimination
in Australian Surrogacy and ART
In
2015, Australia committed to the United Nations Human Rights Committee that it
would remove discrimination, including exemptions under the Sex Discrimination Act 1984 (Cth)
against LGBTI people. At the time of
this conference we are in the midst of the Australian Marriage Law Postal Survey,
which is a non-binding vote by Australian electors as to whether or not same
sex couples should be allowed to marry. If
the vote is passed, a Bill will then be presented to both Houses of Parliament
for approval. However, that vote (and
Bill, if any) has little impact, one way or the other, on discrimination under
ART law which is found under separate laws.
In
accordance with its commitment, the Commonwealth removed exemptions allowing State
based discrimination in respect of all states concerning LGBTI people on 1
August 2016 – with the exception of Western Australia which continued until 1
August 2017. Nevertheless, there remain
State based discrimination which may or may not survive any challenge to being
overridden by the Commonwealth Sex
Discrimination Act. In the two
reported cases some years ago[9] it was clear that State
based discrimination preventing single women from accessing ART fell foul of
the Sex Discrimination Act and was
therefore overridden. It is less clear if
a challenge to discriminatory laws in terms of surrogacy would be successful,
given that a court process is involved to enable surrogacy to proceed.
4.1
Discrimination
in Queensland
Section 45A of the Anti-Discrimination Act 1991 (Qld) allows IVF clinics to
discriminate in the provisions of services “if
the discrimination is on the basis of relationship status or sexuality”.
By
contrast, the Surrogacy Act 2011
(Qld) is non-discriminatory – heterosexual, LGBTI couples and singles can all
pursue surrogacy. In reality, IVF
clinics in Queensland are not discriminatory.
I have called for the repeal of section 45A, but it has not
occurred.
4.2
Discrimination
in New South Wales
New
South Wales law is non-discriminatory.
4.3
Discrimination
in the ACT
A
curious requirement of the Parentage Act
2004 (ACT) required that the intended parents (sexuality is not an issue)
must be a couple and the surrogate must have a partner. There cannot be a single surrogate nor a
single intended parent.
4.4
Discrimination
in Victoria
Victorian
law is non-discriminatory.
Victoria
is unique worldwide in requiring intended parents clearing both a criminal
history check and a child protection history check. If they fail those, there is a presumption
against treatment. It is then up to the
Patient Review Panel to decide whether ART (including surrogacy) can be
provided. If the Patient Review Panel
decides against treatment, an appeal is available to the Victorian Civil &
Administration Tribunal.
4.5
Discrimination
in Tasmania
There
is no discrimination as to the provision of ART, and no discrimination on the
basis of sexuality, but Tasmania – which currently has a population of 519,000
- requires that at the commencement of the surrogacy journey all parties,
namely the intended parents, the surrogate and her partner (if any) must reside
in Tasmania. Whilst this requirement can
be dispensed with, the dispensation is post birth – which in a common surrogacy
journey may be greater than 18 months or 2 years away.
4.6
Discrimination
in South Australia
Following
the removal of exemptions under the Sex
Discrimination Act last year, the South Australian parliament this year
passed laws to enable LGBTI couples to undertake ART and surrogacy.
The
passage of these amendments has meant:
·
The continuation (subject to the Sex Discrimination Act) of single
intended parents not being able to access surrogacy in South Australia.
·
LGBTI couples being able to access
surrogacy and ART in South Australia.
·
IVF Clinics being prohibited from refusing
to provide assisted reproductive treatment to another on the basis only of the
other’s sexual orientation or gender identity,
marital status, or religious beliefs subject to objection may be taken by a
registered objector. A registered
objector is a licence holder who takes objection on one of those bases and is
therefore prepared to go on a public register saying that they will not assist
in those cases. They will then have an
obligation to refer the intended patient to another service where that patient
might receive the service.
One
might think on a first reading of this legislation that any fertility doctor
can take the objection. However, it is
clear that only licence holders can take the objection. The only licence holders are the four IVF
clinics in South Australia – none of which have taken the objection. Even if doctors wish to take the objection,
they cannot do so.
4.7
Western
Australia
Since
the removal of its exemption on 1 August 2017, Western Australia has not
amended its laws, with the result that the people who can access surrogacy (subject
to any challenge relying on the Sex
Discrimination Act) in Western Australia are:
·
Heterosexual couples;
·
Lesbian couples;
·
Single women.
But
the people who cannot access surrogacy in Western Australia are:
·
Single men;
·
Gay male couples.
5.
Where
Australians have undertaken surrogacy
Australians
have attempted or are seeking to or have completed surrogacy in these
countries:
|
Continent
|
Country
|
|
North America
|
Canada
Mexico*
United States
|
|
South America
|
Nil
|
|
Africa
|
Ghana
Kenya
South Africa
|
|
Europe
|
Cyprus
Georgia
Greece
Russia
Ukraine
|
|
Asia
|
Cambodia*
China*
India*
Laos
Malaysia
Nepal*
Thailand*
|
*
Surrogacy may not be currently available in these countries to Australians.
Given
what was said by the judge in the Baby Gammy case, Chief Judge Thackray[10], that it is relatively
easy for Australian intended parents to undertake surrogacy overseas and obtain
Australian citizenship for their child, despite State laws that may prohibit
them doing so (and the difficulty in undertaking surrogacy in Australia),
Australians have ventured across the globe in the pursuit of surrogacy. They are therefore featured in seemingly
every country where surrogacy has blown up:
·
In India – where an Australian couple from
Western Sydney apparently took one of two children who were born and not the
other because they did not like the gender of the second;
·
Nepal – where Australian intended parents
were trapped following the interlocutory injunction in the Supreme Court of
Nepal;
·
Mexico – where Australian intended parents
were trapped and greatly delayed in bringing their babies back to Australia;
·
Thailand – where Australians were trapped
following the Baby Gammy case;
·
Cambodia – where Australians have been
trapped following the change of policy position in Cambodia in October 2016
against surrogacy. An Australian IVF
nurse Tammy David-Charles – who promoted surrogacy for foreigners in both
Thailand and Cambodia – has been imprisoned in Cambodia relating to surrogacy
and the falsification of documents.
5.1
Theory
versus reality – the regulation of overseas surrogacy in Australia
Australian
States take differing views about whether to seek to regular Australians
undertaking surrogacy overseas. There
are no Federal laws preventing Australians from undertaking surrogacy overseas.
5.2
Extraterritorial
laws: ACT, NSW and Qld
The
Australia Capital Territory, New South Wales and Queensland make it plain that
if residents from those jurisdictions (or those who are domiciled in New South
Wales as an alternate test) enter into or offer to enter into a commercial
surrogacy arrangement overseas, they commit an offence back home, punishable by
up to:
·
1 year imprisonment in the ACT;
·
A$110,000 fine or 2 years imprisonment in
New South Wales;
·
3 years’ imprisonment in Queensland.
There
are related offences as to advertising.
In Queensland there is an additional offence of giving or receiving
consideration under a commercial surrogacy arrangement – which also extends to
overseas.
5.3
It’s
fine to go overseas for commercial surrogacy – Victoria, Tasmania, Northern
Territory
In
each of these jurisdictions there is no offence to engage in surrogacy
overseas.
Within
about a month of New South Wales changing its laws to clearly criminalise those
going overseas for commercial surrogacy, the Victorian regulator, VARTA, held a
seminar in April 2011 on cross-border reproductive care and brought out a
doctor from India to assist Victorian intended parents as to how they would
care for their child travelling from India to Melbourne!
5.4
The
grey area: South Australia
In
South Australia, due to a long arm law, it is possible (although unlikely) that
an offence would be committed in undertaking surrogacy overseas. To have an approved arrangement, approval has
been needed since July 2015 in undertaking any overseas surrogacy (whether
commercial or not) from the South Australian Attorney General. The Attorney General in turn is to be guided
by the State Framework for Altruistic
Surrogacy and the Family
Relationships Regulations – neither of which documents have been finalised
in the last two years! It is therefore
likely that if any intended parent were to seek the Attorney General’s consent
that consent would have to be refused because those documents haven’t been
created!
5.5
Western
Australia
As
was clearly pointed out in the Baby Gammy case (Farnell & Chambua[11]),
it is an offence in Western Australia to enter into a surrogacy arrangement for
reward with a long arm provision of that State’s Criminal Code if any element of the offence is committed in Western
Australia – even if the surrogacy arrangement is an overseas arrangement –the
offence is committed.
It
is also an offence in Western Australia for any lawyer in Western Australia to
give advice to clients intending to enter into a surrogacy arrangement that is
for reward (whether in Western Australia or overseas). Therefore, any intended parent in Western
Australia considering taking surrogacy overseas will need to obtain advice from
an interstate practitioner.
5.6
The
reality – no prosecutions
After
the Baby Gammy saga hit the airwaves in August 2014, the two heads of
Australia’s family law system, Chief Justice Diana Bryant of the Family Court
of Australia and Chief Judge John Pascoe of the Federal Circuit Court of
Australia called publicly for the repeal of the overseas laws. They noted that no-one had been prosecuted
under these laws and either the laws ought to be enforced or appealed – to have
the laws in the statute books and not enforced in circumstances where many
Australians were undertaking surrogacy overseas made a mockery of the
laws.
In
the three years since then:
·
no-one has been prosecuted;
·
many further Australians from those
jurisdictions have undertaken surrogacy overseas;
·
the laws have not been repealed.
6.
Uncertainty
as to parenthood
The
administration of the Australian
Citizenship Act has made it fairly straightforward for intended parents to
undertake surrogacy overseas. The test for
what is called citizenship by descent as a practical reality (but see my
comments as to the effect of Bernieres
and Dhopal below) has been that:
1.
one of them is genetically a parent; or
2.
in the wider sense of society one or both
is recognised as a parent.
In
reality, the latter is often based on an order made in the United States or
Canada. For countries outside the US or
Canada, the Department of Immigration as a matter of course has required a DNA
link.
There
have been several intended parents who undertook surrogacy in India and
Thailand where due to errors by the clinic (or as alleged in one case, natural
conception by the surrogate and her husband) the child was not genetically
related to the relevant intended parent and therefore the DNA test could not be
used to establish parentage. In those
cases, the Department of Immigration relied on the wider test to establish
parentage.
6.1
Lack
of clarity as to whether intended parents are parents
Whilst
intended parents can gain citizenship for their child fairly easily and
therefore bring the child home and have the child remain in Australia, it has
been a moot point as to whether the intended parents are parents of the child under
Australian law. There has been a
plethora of decisions from the Family Court of Australia and the Family Court
of Western Australia which have indicated different outcomes namely:
·
they are the parents;
·
they might be the parents;
·
the genetic father is the parent;
·
they are not the parents;
·
I don’t have the power to say that they
are the parents.
It
now appears clear following the decision on 1 September 2017 in Bernieres and Dhopal that the intended
parents, subject to four exceptions, are not
the parents.
6.2
Bernieres & Dhopal [2017] FamCAFC 180
In
a recent decision, three judges of the Family Court have ruled that Australians
who go overseas for surrogacy are not the parents of any child that they bring
home.
Mr
and Mrs Bernieres had a child through surrogacy in India. They first went before Berman J of the Family
Court seeking orders that they had parental responsibility for the child and
that the child live with them – and declarations or findings under the Family Law Act that they were the
child’s parents.
His
Honour made the orders that they had parental responsibility and that the child
live with them, but declined to make the parentage declaration.
Mr
Bernieres was the biological father of the child. An egg donor was the biological mother.
The
couple, who lived in Victoria, had not undertaken surrogacy in compliance with
the law of Victoria which required:
·
Because the surrogacy was commercial, as
oppose to altruistic;
·
Was not commissioned with the assistance
of a Victorian registered ART provider;
·
The procedure was not carried out in
Victoria.
It
was legal in Victoria for them to undertake surrogacy in Victoria. Mr and Mrs Bernieres entered into the
surrogacy agreement in August 2013 – two years after VARTA ran its seminar on
Cross-Border Reproductive Care.
Because
there had not been compliance with Victorian domestic surrogacy requirements, section
60HB of the Family Law Act did not
apply to the case. Section 60HB
provides:
“(1) If
a court has made an order under a prescribed law of the State or Territory to
the effect that:
(a)
A
child is the child of one or more persons; or
(b)
Each
of one or more persons is a parent of a child;
then,
for the purposes of this Act, the child is the child of each of those persons.
(2) In
this section: “this Act” includes:
(a)
The
standard Rules of Court; and
(b)
The
related Federal Circuit Court Rules.”
Furthermore,
Mr and Mrs Bernieres sought a declaration under section 69VA of the Family Law Act. Berman J was of the view that he could not do
so because that section was not a “stand
alone power but rather requires ‘parentage’ of a child to be an issue in
proceedings in respect to another matter”.
His Honour further went to say that the Family Court despite being a
superior court of record, did not have an inherent power to grant a parentage
declaration “other than those authorised
by the Act and its inherent power extends only to administer justice and
prevent abuse of process”.
Berman
J noted that the circumstances surrounding the birth of the child were “not dealt with directly either by the
relevant state legislation or by reference to section 60HB” and that this
may be unsatisfactory. However “the definition of a parent should [not] be
extrapolated because of a legislative vacuum.” He went on to say that the category of
persons who satisfy the definition of parent while not necessary closed pursuant
to section 60H of the Family Law Act
and section 60HB “any perceived hiatus is
a matter for legislation and not judicial interpretation”. Therefore as the Victorian legislation did
not provide for the circumstances of the child’s birth, Mr Bernieres was not
the parent of the child for the purposes of Victorian law. His Honour said that he could “well understand the dismay of [Mr and Mrs
Bernieres] that they are not able to secure for all purposes that which they
fervently seek namely, recognition and a declaration of parentage”. His Honour therefore noted the need for “urgent legislative change”.
Quite
simply, since that decision two years ago in September 2015, there has been no
legislative change nor any proposed legislative change.
6.3
The
Full Court decision
The
Full Court was comprised of Bryant CJ and Strickland and Ryan JJ.
Their
Honours accepted the approach taken by Thackray CJ in Farnell and Chambua (the Baby Gammy case) that sections 60H and
60HB of the Family Law Act overrode
the general parenting presumptions under the Family Law Act.
Furthermore,
their Honours agreed with the tentative position taken by Ryan J in Mason and Mason (2013) where her Honour
said in effect that there is a scheme between State and Federal law as to who
is and who is not a parent and that therefore a person is or is not a parent
determined by State and Territory status of children legislation.
Therefore,
the approach taken by Johns J in Green-Wilson
and Bishop that someone is a parent under general provisions of the Family Law Act even if not a parent
under the equivalent Status of Children
Act is the wrong approach.
Their
Honours went on to note that section 60H(1) by which the birth mother and de
facto partner or husband are the parents of a child conceived through
artificial conception procedure, did not apply to surrogacy situations:
“On
its plain meaning, if section 60H(1) is applied to a surrogacy arrangement…it
results in the birth mother and her husband or partner being the parents, and
the child not being the child of any person who provided genetic material. Thus, neither of the commissioning parties
can be the parents of the child under this subsection, and it is clearly
designed to cover conventional artificial conception arrangements where the
birth mother and her partner are to be the parents of the child.”
Their
Honours did not consider sections 60H(2) and (3) of the Family Law Act. As their
Honours noted “judicial opinion is
divided as to whether those subsections impliedly exclude” any donor or genetic
material from recognition as a parent.
If
the approach taken by Justice Ryan in Mason
and Mason were correct, then on the face of it a donor would not be a
parent under those sections. However, in
the decision of Groth and Banks, a
known donor could be a parent.
Whilst
it might be thought that section 60HB only applies to domestic surrogacy
arrangements, their Honours said:
“Thus,
it is plain that s60HB now specifically addresses the position of children or
and under surrogacy arrangements, leaving little s60H to address the status of
children born by means of conventional artificial conception procedures. Further, the plain intention of section 60HB
is to leave to each of the States and Territories to regulate the status of children
born under surrogacy arrangements, and for that to be recognised for the
purposes of the Act. In other words, section 60HB covers that
field, leaving, as we say, section 60H to address conventional artificial
conception procedures.”
As
their Honours said:
“The
unfortunate result of that conclusion is that the parentage of the child here
is in doubt. There is no order made
under the relevant State legislation (and nor could there be…).
There
is no question that the father is the child’s biological father, but that does
not translate into him being a parent for the purposes of the Act. Further, the mother is not even the
biological mother, and thus is even less likely to be the “legal parent”.
Because
of the effect of section 60HB (and perhaps section 60H) therefore a parentage
declaration could not be made.
Mr
and Mrs Bernieres sought to have the child considered to be a “child of the marriage” but from similar
reasoning the Full Court found that the child was not a child of the marriage,
in part because of the specific provision, namely section 60HB.
6.4
Effect
of the decision
It
has been estimated that approximately 250 children a year are born to
Australian intended parents via overseas surrogacy arrangements. It is clear now that because of this decision,
Australian intended parents are not
the parents of any child born overseas through surrogacy. It is really irrelevant as to whether the
surrogacy is commercial or altruistic.
Because the Family Court referred to the relevant State legislation (which
is fairly consistent on this point), the effect is clear – intended parents are
not parents of children born through
surrogacy overseas. It seems clear that
earlier decisions that have said otherwise under the Family Law Act were incorrectly decided.
6.5
Will
there be any impact on citizenship?
It
is unclear as to what impact there will be on the citizenship of children
conceived in the future through international surrogacy. The Department of Immigration and Border
Protection has taken the view that section 60HB of the Family Law Act applies only to domestic surrogacy arrangements and
not international surrogacy arrangements.
This is important because section 8 of the Australian Citizenship Act says that where a person has been
conceived through an artificial conception procedure, who is a parent for the
purposes of Australian citizenship is determined by sections 60H and 60HB. If the Department takes the view, consistent
with the Family Court, that section 60HB of the Family Law Act covers the field – then no child born outside
Australia through surrogacy (with limited exceptions) would be recognised as
the child of a parent for the purposes of Australian citizenship. Therefore the child would not be entitled to Australian
citizenship and would therefore not be entitled to live in Australia.
For
quite some time the Department has said that section 60HB does not apply to
international surrogacy arrangements, in which case the usual test as to who is
a parent, of who in society generally someone as a parent. This is consistent with the decision in H v. Minister for Immigration (2010), a
Federal Court decision – which was quite clear in saying it didn’t apply to
surrogacy.
For
quite some time now there has been a variance of opinion by judges of the
Family Court as to whether someone is or is not a parent when they have
undertaken overseas surrogacy. The
Immigration Department has largely ignored the approaches taken by Family Court
judges. Whether it does so now may have
significant impact on any Australian who wishes to undertake surrogacy overseas.
6.6
Are
there any exceptions to the ruling as to who is a parent under the Family Law Act?
There
would appear to be four exceptions in which someone can still be a parent under
the Family Law Act when surrogacy is
undertaken overseas.
6.7
Exception
1 – comity cases
If
someone is living overseas and has undertaken surrogacy lawfully there, and is
recognised as a parent there, then the general parenting presumptions under the
Family Law Act do not apply that that
person should be recognised as a parent under the Family Law Act: Ryan J in Carlton
and Bissett (2013).
6.8
Exception
2 – a second parent adoption
Now
we come to the truly Kafkaesque situation where a biological parent may not be
a parent but the second (either biological or non-biological) parent will be a
parent under Australian law. In some
parts of the United States, surrogacy is governed by post birth parenting
orders, typically granting custody to one of the intended parents, then
terminating the parental rights of the surrogate and her partner, and then a
second order making the other intended parent a parent. This second order is typically a second
parent adoption order (sometimes called a stepparent adoption order).[12]
It
is unclear from the decision in Bernieres
and Dhopal whether the first parent will be recognised as a parent under
Australian law. After all, they won’t
have complied with relevant State and Territory status of children
legislation. Whether the overseas order
concerning the first parent will be recognised is uncertain.
However,
it would appear reasonably clear that the second parent adoption order which
recognises the second parent as a parent of the child, would recognise that
person as a parent under the Family Law
Act. Why this is so is fairly
technical. One of the definitions of “child” under section 4 of the Family Law Act (the definition section)
says:
“(a) In
Part VII (that part of the Family Law Act that deals with children and parental
responsibility) includes an adopted child and a stillborn child; and
(b) In Subdivision E of
Division 6 of that Part [the part of the Family Law Act that deals with taking
children overseas improperly], means a person who is under 18 (including a
person who is an adopted child).”
Further,
under that section “parent” is
defined as:
“When used in Part VIII in relation to a child who has been adopted,
means an adoptive parent of the child.”
Furthermore,
where there might be legitimate concern about whether the adoption needs to
have occurred in Australia or needs to have occurred in accordance with example
with The Hague Intercountry Adoption Convention, the definition of “adopted” in that section is much wider:
“In
relation to a child, means adopted under the law of any place (whether in or
out of Australia) relating to the adoption of children.”
6.9
Exception
3 – registration of US surrogacy orders
It
is possible in limited circumstances (and has occurred twice) where US
surrogacy orders are able to be registered under the Family Law Act. In those
cases, the order of the US Court that declares the intended parents to be the
parents of the child will therefore make the parents under Australian law, if
the order is registered, the parents of the child in Australia.
In
the two decisions, Forrest J of the Family Court made plain the Court’s
reluctance to register US surrogacy orders when there has been commercial
surrogacy. This may be a very limited
option. I expand on this issue below.
6.10
Exception
4 – South Australia
Under
the Family Relationships Act 1975 (SA)
those intending to undertake surrogacy overseas from South Australia can obtain
the approval of the South Australian Attorney-General before undergoing their
journey. The South Australian Attorney
General in turn has to be guided by the State
Framework for Altruistic Surrogacy and the Family Relationships Regulations – neither of which at this stage
have been written even though the law has been in place since July 2015.
If a couple (and it
would only apply to couples) is able to obtain the Attorney-General’s consent,
and they then pursue surrogacy successfully overseas, they can be recognised
under South Australian law as the parents by obtaining a parentage declaration
in the Youth Court of South Australia (which would therefore be sufficient for
the purposes of section 60HB of the Family
Law Act.
6.11
Historical
impact of not being a parent
Before
the decision in Bernieres and Dhopal,
very few intended parents would go to the Family Court seeking orders declaring
them to be the parents of children born overseas through surrogacy. The reasons were simple:
·
It costs approximately $20,000 to bring
such an application and depending on which part of Australia they are in, might
take 6 months to resolve;
·
Chances were the Court would not make a
declaration and parentage in their favour;
·
Given changes to passport rules in 2015,
for those who underwent surrogacy in the US or Canada, then they will probably
not need the surrogate’s written consent to any passport for the child;
·
There are usually no real impediments in
the child obtaining citizenship, Medicare entitlement, Centrelink entitlements,
going to hospital or the doctor or being enrolled in childcare or school;
·
There were issues in relation to wills and
inheritances, superannuation and child support issues. However, intact families generally (aside
from planning their Wills) did not have an obvious imperative to go to Court to
seek a declaration or orders concerning their child.
The
unknown factor as a result of this decision is the approach that will be taken
by the Department of Immigration.
The
call by Berman J for urgent legislative change is an obvious one. It is an outrage that we now likely have
thousands of children who live in Australia whose parents conceived them
through surrogacy overseas who do not have a legal parent/child relationship –
which could lead to the disinheritance of the children concerned as well as
other significant unintended impacts.
This
surely was not and should not be the intention of Parliament.
7.
Registration
of US surrogacy orders
It
is now possible to register US surrogacy orders in Australia. It has occurred only in two cases. Once registered, then the US order will take
effect for all purposes under Australian law – including determining that the
intended parents are the parents.
In
the first case, Re Halvard[13],
Forrest J in the Family Court of Australia registered a US surrogacy
order. It was a pre-birth order. His Honour didn’t consider that there was
much of significance as to whether it was a pre-birth or post birth order, it
being of a similar effect to orders commonly made in New South Wales or
Queensland. Of more significance to his
Honour was that the public policy of New South Wales and Queensland was against
commercial surrogacy. His Honour found
that the surrogacy arrangement in question (which was undertaken by a couple
living in the United States and occurred in the United States) was an
altruistic one under both the Surrogacy
Acts of Queensland and New South Wales and therefore was able to be
registered.
7.1
Re Grosvenor [2017] FamCA 366
In
this case, Forrest J registered a US surrogacy order. It involved a couple from the ACT who moved
to the United States for work – then underwent surrogacy and wished to register
the order in Australia. His Honour
considered it appropriate to register the order having regard to:
·
the unique circumstances of the couple and
their inability to biologically parent and carry their own baby;
·
the well-regulated nature of the surrogacy
arrangements entered into between them and the surrogate, notwithstanding its
commerciality;
·
the judicial oversight to the arrangements
given by the Court in the USA, including the procedural fairness offered
thereby to the woman who carried the baby for the applicants;
·
the acceptance by the Australian
Government of that US jurisdiction as a prescribed jurisdiction for the
purposes of the registration of overseas
child orders made in Courts of that jurisdiction thereby signifying the
Australian Government’s satisfaction with the standard of the judicial
processes that would have occurred in the making of the order;
·
the fact that the arrangements entered
into, regardless of their nature, brought into the world a child who was the
biological child of at least one of the applicants, the legal child of both of
them, who has been loved and raised as their child, who is an Australian
citizen, like her parents, will be coming back to live in Australia in the near
future, and who has every right to expect that the legal nature of her
relationship with both of her parents is appropriately recognised in this
country of hers.
8.
Regulation
of International Surrogacy
As
the example of Australia illustrates all too well, there is great uncertainty
for intended parents as to whether they will be recognised as the parents of
the child. Australia has demonstrated by
the actions of Australians undertaking surrogacy overseas that on some
occasions there may be exploitation of parties (whether it be surrogate,
intended parents or child or a combination of all of them) and that therefore
there ought to be some light handed consistent regulation of surrogacy so that
the human rights of all are able to be protected and the right of the child to
an identity[14]
are able to be properly recognised. The
resolution of the American Bar Association 112B reached in February 2016 urged
the US Department of State to seek the following in negotiations concerning a
possible Hague Convention on private international law concerning children,
including international surrogacy arrangements:
“(a) that
any Convention should focus on the conflict of laws and comity problems inherent
in international citizenship and parentage proceedings and that any such
collective international approach should allow for cross-border recognition of
parentage judgments so that the parental relationship and citizenship status of
all children, no matter the circumstance of their birth will be certain; and
(b) that
any such collective international approach allows individual member countries
to regulate surrogacy within their own borders as deemed appropriate by that
country without imposing new international restrictions on surrogacy
arrangements; and
(c) that
a Central Authority model to regulate surrogacy arrangements is not an
appropriate model for any collective international approach regarding
surrogacy; and
(d) that
any Convention should recognize the clear distinctions between adoption and
surrogacy;
(e) that
the Hague Convention on the Protection of Children and Cooperation in respect
of Intercountry Adoption (1993) is not an appropriate model for any convention
regarding surrogacy; and
(f) that
rather than requiring a genetic link, an intent-based parentage analysis is the
most appropriate parentage doctrine for surrogacy; and
(g) the
human rights abuses are not necessarily inherent in or exclusive to surrogacy
arrangements; and, therefore should be addressed separately.”
The
Hague Conference on Private International Law has set up a working group which
has met in 2016 and 2017 and is next due to meet in 2018. The form of a Hague Convention on private
international law concerning children, including international surrogacy
arrangements is likely to be several years away. The likely form of that Convention is
currently unknown.
8.1
Hague Adoption Convention
I
made mention above that sometimes in the United States, post birth orders are
made in the US involving a second parent adoption. The evident question that leaps out with
international surrogacy is whether the 1993
Hague Intercountry Adoption Convention might apply to that second parent
adoption. The usual approach with the US
State Department and the Australian Immigration Department have not been to
involve the Hague Convention. As a
matter of law, it is suggested that that is the correct approach. The only decision on point comes from New
Zealand.
In
Re
Application by L[15]
Mr and Mrs L lived in New Zealand. Mrs
L’s sister, Mrs G and her husband Mr G lived in Queensland. Mrs G offered to be the surrogate for Mr and
Mrs L. Mrs G was implanted with the egg
and sperm of Mr and Mrs L. What is
unknown from the case is where IVF occurred.
The reason is that surrogacy in all forms, whether gestational,
traditional, commercial, altruistic, within Queensland or overseas was in 2000
illegal in Queensland.
Be
that as it may, the child was born in Queensland. Seven days later the child flew to New
Zealand with Mr and Mrs G. They had
cared for him from birth.
New
Zealand regulates international surrogacy based on an adoption model. The question for the Court was whether the
child was habitually resident in Queensland at the time of his birth. If he were, then the 1993 Hague Convention
would apply, with all its processes. The
Court found that the child’s habitual residence was New Zealand, not Australia. The New Zealand Department of Child, Youth
and Family Services was a party to the proceedings and was of the view that New
Zealand was the place of the child’s habitual residence.
Judge
P von Dadelszen noted that in H v. H
(1995) 13FRNZ498, Greig J said at 501:
“It
is clear, and there is ample authority to show, that the construction of the
phrase “habitual residence” has no particular legal magic. It is to be construed in the ordinary meaning
of the word. The essence of “habitual”
is customary, constant, continual. The
opposite of that is casual, temporary, or transient.”
Judge
P von Dadelszen held:
“It
is important not to confuse habitual residence with domicile and (counsel)
conceded that at the time of his birth H would be seen as being domiciled in
Australia as his birth mother was a citizen of that country…the point made by
(counsel) is that the Ls were H’s caregivers right from his birth, on the basis
of the agreement reached between them and Mr and Mrs G. Accordingly, his residence in Australia could
be temporary only, it always having been intended that, following the birth, H
would travel to New Zealand with his genetic parents.
…(I)t
seems to me that it would ignoring reality to suggest that this child’s
habitual residence could be any country other than New Zealand…indeed, it can
be argued that what was said in Re F, quoted above, supports the proposition
that H’s habitual residence was New Zealand as the Ls commenced caring for him
immediately he was born.
As
(counsel) points out, the Adoption (Intercountry) Act was enacted to prevent
the trafficking and sale of children across international borders in an immoral
way, for financial gain, and to prevent children from being displaced from
their cultural heritage and familial connections. There is nothing in the conclusion to which I
came which does violence to these aims.
For
the sake of completeness, I should note that counsel for the Department of
Child, Youth and Family Services had earlier advised me that the Department’s
view was that H’s habitual residence was in fact New Zealand although it
preferred to abide by the decision of the Court in this regard.”
9.
Australian
Reform
In
2013 a statutory body, the Family Law Council, was commissioned by the previous
Government to inquire into the status of children including as to whether there
should be a Federal Status of Children Act (including as to the impact on
children born overseas through surrogacy arrangement).
The
Family Law Council recommended that there be a Federal Status of Children Act.[16]
Since
then, as illustrated in Bernieres and
Dhopal, there has been no change to the status of children
legislation. No Federal Status of
Children Act has been enacted and there have been no moves to do so.
The
Council also recommended that intended parents going overseas for surrogacy
obtain judicial approval before their child can obtain Australian citizenship,
similar to the UK approach. There have
been no moves to do so.
In
2015 and 2016 the House of Representatives Standing Committee on Social Policy
and Legal Affairs conducted an informal and then formal inquiry as to
surrogacy. The Committee recommended[17] that there be:
1.
Nationally consistent non-discriminatory
laws concerning altruistic surrogacy.
2.
That it be harder for Australians to
undertake surrogacy overseas to any country that has standards less stringent
than Australia.
3.
Consideration as to whether the names of
the surrogate and her partner and the donor and any partner of any child conceived
through donation and surrogacy might be included on the child’s birth
certificate.
The
Committee called for urgent reform.
Since the Committee released its report in mid 2016, no action has been
taken.
If
the Committee’s recommendations about overseas surrogacy were to be accepted,
then it may be considerably difficult for Australians to undertake surrogacy
anywhere other than New Zealand as all culturally similar countries such as
Canada, United States and the United Kingdom (aside from New Zealand) have
standards that are less stringent than Australia when it comes to egg donation
or surrogacy.
10.
A
prediction
Sooner
or later there will be another big blow-up with surrogacy occurring in a
developing country which has no laws in place, and has processes with IVF and
surrogacy described previously by Chief Justice Pascoe as being like the Wild
West, where anything goes – at which point that country will engage in a knee
jerk reaction to close down surrogacy (as we have seen in the past in India,
Nepal, Thailand, Cambodia and Mexico) at which point there will be calls to
increase regulation including international regulation concerning surrogacy.
Whether
it deals with the underlying dynamics – couples who have legitimate
expectations that they will become parents and have the means to do so – is
another matter. We shall wait and see.
13
September 2017
Stephen
Page
surrogacyandadoption.blogspot.com
[1] Stephen Page is a partner of
Harrington Family Lawyers, Brisbane, Australia.
He is a Fellow of the International Academy of Family Lawyers, including
a member of the Hague/Surrogacy Project Committee. Stephen is an international representative on
the American Bar Association’s ART Committee and was the principal advocate of
and co-author of resolution 112b as to a proposed Hague Convention on private
international law concerning children (including international surrogacy
arrangements). He is a Fellow of the
American Academy Adoption and Assisted Reproductive Technology Attorneys. He is a member of the Fertility Society of
Australia and has spoken widely and written widely (including for the
International Bar Association) as to surrogacy and family law.
[2] Australian Institute of Aboriginal
& Torres Strait Islander Studies.
[3] Source: Australian Institute of
Health & Welfare.
[4] e.g. Reiby & Meadowbank [2013] FCCA 2040
[5] ASRM Ethics Committee Report,
Financial Compensation of Oocyte Donors (2011)
[6] e.g. s.21 Prohibition of Human Cloning for Reproduction Act 2002 (Cth)
[7] Interview with the Medical Director
of Cape Fertility Clinic, March 2016.
[8] Source: Mr Sam Everingham of
Families Through Surrogacy, 2016.
[9] Pearce
v. South Australian Health Commission
[1996] SASL 5801; McBain v. Victoria
[2000] FCA 1009.
[11] [2016] FCWA 17
[12] e.g. Florida, Hawaii, Iowa,
Minnesota and sometimes Oregon.
[13] [2016] FamCA 1051.
[14] Article 8 International Convention on
the Rights of the Child
[15] [2003] NZFLR529
[17] Surrogacy Matters: Inquiry into the
regulatory and legislative aspects of international and domestic surrogacy
arrangements (April 2016).
