Rabbinical Court won’t recognise as Jewish an infant born from undisclosed Jewish egg donor

A rabbinical court in Israel has held that a minor born of a donated egg would not be recognised as a Jew, although the egg donor is listed as Jewish in the population register.  The child’s mother who wanted to determine the status of her minor son was refused because the donor identity’s secrecy prevents the court from investigating the donor’s Judaism.  

According to the judges, the interior ministry’s records are not in accordance with Jewish laws – they are certainly more lacks than the Rabbinate’s – therefore additional examination of the donor’s Jewish status is needed as a condition for determining the child’s religious status.

The case highlights the problems for all Jewish intended parents seeking egg donation either by itself or as part of a surrogacy process.  For a person to be considered Jewish, their mother has to be a Jew.  When it comes to egg donation, it has long been considered that having an egg donor who was a Jew is sufficient.  

The case highlights the difficulty with anonymous donors.  In Australia a donor is either a known donor or a de-identified donor, i.e. the child can find out after turning 18.  In the United States, both types of donors are available, but many egg donors are anonymous.  The child will never know who was the donor.  The Attorney-General in the case demanded that the donor’s identity be kept secret and refused to reveal it, because this was believed to deter future Jewish women who wished to donate eggs, fearing that their identity would be exposed.  This means that the minor will never be able to prove his Jewish status.

An implication of the case might be that any Jewish egg donor needs to be a known donor.  If a de-identified donor donates eggs – and the child cannot find out who that woman is until he or she turns 18 – then that child may not be able to be identified until becoming an adult that he or she is Jewish. 

This will mean inevitably that Jewish intended parents will be competing with other Jewish intended parents for any available Jewish egg donors who are prepared to be known donors – which means that the compensation likely to be paid to those egg donors is going to be higher (whether this occurs overseas) because they may well be as scarce as hens teeth.  This in turn potentially brings up legal issues for Australian intended parents who undertake egg donation agreements overseas – that they don’t inadvertently commit breaches of Australian laws dealing with human tissue and human cloning and potentially put themselves at risk of being  punished for an offence of up to 15 years’ imprisonment. 

In the words of a commentator on Reddit:

            “It’s a halachic dispute but this beit din decided one way.  The issue is, as seen above, that the anonymous donor is explicitly listed as Jewish, and the beit din wants to do a Jewishness test on them, which would require revealing their identity.”

Anyone who is Jewish considering undertaking egg donation and as part of their family formation journey should carefully plan the process in light of this judgment.

South Australia to have new surrogacy laws

Just over a week ago, the South Australian Parliament has passed new surrogacy laws, the Surrogacy Bill 2019.  The Surrogacy Act 2019 takes effect on a date to be proclaimed, likely to be early in the New Year.

Previously, the surrogacy provisions in South Australia were contained in parts of the Family Relationships Act.  The Weatherill Government asked the South Australian Law Reform Institute (SALRI) to look into surrogacy.  The review was continued under the Marshall Government.  The review recommended comprehensive changes, including that South Australia have its own Surrogacy Act.

The Surrogacy Act as passed largely captures the recommendations of the review.  Some changes included:

·         Rather than there being uncertainty as to what expenses can be paid to a surrogate, the flexibility of approach seen in New South Wales and Queensland is now to be the norm in South Australia.  This makes it particularly easier when there have been interstate surrogacy arrangements, as is common.

·         The surrogate must now be aged 25.  Until now, surrogates can be as young as 18.  The norm seen interstate and often overseas is a requirement in practice or law for the surrogate to be aged 25.  This is considered that she has the requisite maturity to make a decision and may well have had all her own children.  Of course, if something goes wrong in the surrogacy journey, the surrogate may be prevented from having children again.

·         There will be the ability to undertake traditional surrogacy in South Australia.  However, whether this can be undertaken through one of the clinics remains to be seen – as clinics sometimes refuse to undertake traditional surrogacy, because of perceived risks that the surrogate will retain the child.

·         Single intended parents will be able to undertake surrogacy in South Australia.  Currently, while surrogacy is open to couples (including same sex couples), previous attempts to enable single intended parents to undertake surrogacy have been rebuffed. 

·         Intended parents in South Australia undertaking surrogacy will need to undertake police checks.  It was felt strongly by some members of Parliament that these were required in order to avoid another Baby Gammy situation – even though Victoria (which is alone in requiring these checks) has come to the view that these checks were unlikely to work and is in the process of phasing them out.

·         IVF will no longer need to occur in South Australia.  If South Australian intended parents are able to find a surrogate but not an egg donor, they may (with extreme care) be able to undertake egg donation overseas.  Part of the care is that offences relating to egg donation in South Australia may apply overseas due to what are called long arm provisions in the Criminal Law Consolidation Act 1935 (SA).  Clear legal advice is required before undertaking that process.  Another possibility is that if the egg donor lives interstate, for example in Sydney, it may be more convenient to do the IVF in Sydney than to do it in South Australia.

·         The 2015 amendments to set up a State framework for altruistic surrogacy will be abolished.  The State framework for altruistic surrogacy was never set up, despite the laws having been in force for the last four years.

·         The surrogacy register, which was also set up in the 2015 changes, will also be abolished.

·         The human rights of all involved must be taken into account.  This provision in the Bill was after Parliament was made aware that in other legislation in Queensland and Tasmania, the surrogate has a specific right to manage the pregnancy and childbirth, like any other woman.  That statement in the Queensland and Tasmanian Surrogacy Acts reflects the common law. 

·         There will now be an offence of entering into a commercial surrogacy arrangement.  Depending on interpretation, that offence may be committed by South Australian residents undertaking surrogacy overseas.  Anyone in South Australia contemplating undertaking surrogacy overseas should obtain expert Australian legal advice first.

Health insurance for overseas surrogacy jouneys is essential

When undertaking overseas surrogacy journeys, it is absolutely essential to have the right health insurance, to make sure that the surrogate and the newborn baby are both protected.  The recent story about a Sydney couple, Ellice Mol and Rhys McGowan illustrates what can go wrong with surrogacy if health insurance isn’t obtained.

Ellice and Rhys live in Sydney and decided to undertake surrogacy in Canada.  Their son was born six weeks early, resulting in a A$120,000 debt to the Canadian hospital.  This cost is on top of whatever they spent in creating embryos in Australia (presumably to save money), shipping those embryos to Canada, engaging a surrogate and lawyer in Canada, travel etc.

Clearly, Ellice and Rhys did not have adequate or any health insurance for their child in Canada.  Although Canada has a Medicare style system which covers the birth, it doesn’t cover anything going wrong for the care of the baby.  The cost of health insurance in Canada ranges between A$5,000 and A$15,000.  

I have seen cases where intended parents have undertaken surrogacy in Canada but not arranged health insurance, something has gone wrong and but for the grace of God they could have ended up with a bill ranging between A$100,000 and A$200,000.  Ellice and Rhys were not so lucky.

One thing is for sure.  If something goes wrong with the healthcare of the child overseas, everyone will be looking to the intended parents to pay.  The risk lies with intended parents.  It is common to see in retainer agreements of surrogacy agencies and lawyers concerning insurance to the effect of all care and no responsibility – and the risk for poor or inadequate health insurance falls upon the intended parents.  

It is essential in my view that intended parents undertaking surrogacy overseas get legal advice from lawyers at both ends – from lawyers who specialise in the field, and only go to reputable surrogacy agencies.  Health insurance needs to be checked extremely carefully and if needed a second opinion be obtained to ensure that adequate health insurance provides the cover, to avoid a mishap such as that which befell Ellice and Rhys.  

The fact that the hospital bill alone is the total of what they should have spent in undertaking their Canadian surrogacy journey says it all.  If you can’t afford adequate health insurance at the beginning of the journey, don’t undertake the journey.