Sunday, January 8, 2017

Cambodia still has a long way to play out

The sorry tale that is surrogacy in Cambodia still has a long way to play out- if only because there are foreigners, including Australians whose surrogates were just pregnant before the Cambodian government a couple of months ago decided to ban all forms of surrogacy there.

As I have said repeatedly, when it comes to surrogacy there are sharks in the water. Quite simply, when there are people desperate to have children, and perceived to have money, there will be others who will stop at nothing to get hold of that money. It is very much a case of buyer beware.

Australians have a view that the government will fix everything and regulate everything. When it comes to IVF, this is a fair view. IVF clinics in Australia are regulated both at a State and Federal level in different ways, and on top of that there are more regulations when it comes to surrogacy. Australians also have an expectation that if they go to their local IVF clinic (or even one on the other side of the country) that the clinic will be well regulated, well run and that the people running the clinic are honest.

This assumption should not be made when going overseas. Typically clinics are not or poorly regulated (at least in developing countries). In most places surrogacy agencies are simply not regulated. There is an absence of regulation for surrogacy agencies in developing countries. Even in the US, the assumption of Australians is that agencies are regulated. Typically, they're not. If the agency is owned by a lawyer or a psychologist or a doctor, then there is some indirect regulation- but that's about it in most places.

As we have seen in the last week, Filipino women were detained at Manila before getting on a plane to Phnom Penh, because the belief of authorities was that these women were being trafficked to Cambodia for surrogacy for foreigners. I bet that these women were not told before they got to Manila airport that if they landed in Cambodia, they would be likely jailed by authorities, who viewed their activities as illegal, and to avoid going to jail they would have to remain in hiding.

The detention reminded me of the scheme by Rudy Rupak. Rupak has been indicted by a US federal grand jury of wire fraud. His scheme, exposed by Australia's ABC, was in part to traffic Colombian women to Mexico to undertake surrogacy there for foreigners. His offsider accused Rupak of organising a Ponzi scheme.

It also reminded me of the scheme by then Californian attorney Theresa Erickson, which was to produce babies in the Ukraine on demand for US intended parents- which led to her jailing and disbarment.

And if you think Cambodian authorities don't mean business, think again. Australian agent Tammy Davis-Charles remains in custody in a notorious Cambodian prison waiting her trial about people trafficking.

Sunday, December 18, 2016

Family Court of Australia court registers US pre-birth surrogacy order

In a groundbreaking decision, for the first time ever, the Family Court of Australia has registered a US surrogacy order. The effect of the Australian order means, that for all purposes the US order can be enforced in Australia and that the parents of the child as recognised by the US order are recognised as the parents of the child in Australia.

Until this decision, reported as Re Halvard and Another, there were only two ways that Australians going to the United States could be recognised in Australia as parents (other than for citizenship purposes), either:

  • to apply to the Family Court for a declaration as to parentage. The problems with this approach are that it is extremely expensive, is slow and may not be successful. I am told that a colleague charges $18,000, and that would be a fair figure. However, recent cases have indicated that different judges of the Family Court have different approaches, so that it was unclear whether the parents would be recognised as the parents; or
  • if living in Western Australia, to apply to the Family Court of Western Australia for a step-parent adoption order. That possibility arose from a 2013 case. However, the judge in that case told a legal conference in WA in 2015 that she was unlikely to continue to do so, out of concerns for surrogates. Further, following the Baby Gammy decision in the Family Court of Western Australia, it is doubtful whether that type of application would be successful now.
Not surprisingly, most parents who had returned to Australia with their babies born overseas chose, after they either obtained Australian citizenship for their children, (or if they were permanent residents or visa holders, ensured that their child was subject to the same visa conditions), to do nothing further. Why spend a lot of money going to court for little purpose?

There is another risk. Those who were from Queensland, NSW and the ACT in particular were at special risk that in going to the court that they might be referred to authorities to see if they had committed an offence, and then be prosecuted. A Sydney judge referred two Queensland couples to the Queensland Director Prosecutions for this purpose back in 2011. As it happened, neither couple was prosecuted.


This case

The parents lived in the United States. One of the parents was an Australian citizen and the other was a US citizen. The boy, X, lived with them in the US. The father had family members in Australia, and the intention was to travel to Australia from time to time.

The parents underwent surrogacy in Tennessee.They entered into a surrogacy agreement with a surrogate. X was conceived from the father's sperm and the mother's egg. A court in Tennessee ordered, when the the surrogate was 30-32 weeks pregnant that when the child was born, the parents would be declared to be the parents and that they would have custody of the child.

What is the effect of registration?

The Family Law Act provides that an overseas child order, made in a prescribed overseas jurisdiction, can be registered with the Family Court of Australia. Once it is registered, the overseas child order takes effect in Australia. Therefore if it is possible to register an overseas child order, and the form of that order recognises the intended parents as the parents of the child, then that order will transform the child's identity and legal relationship with the parents, not only in the overseas country [as happened when the overseas order was made], but also in Australia.

This means, for example, that the only people who have been granted parental responsibility for the child, in effect for the Australian Passports Act, are the parents, not the surrogate. Therefore the surrogate's consent for new Australian passports for the child will not be required.

If the parents were to die, then they would be recognised under Australian law as the parents of the child for inheritance purposes. They would also be recognised as the parents for child support purposes.

If the order were not registered, it is uncertain if this were the case.

Why did it go a judge?

The parents had first made an application to a registrar of  the court, who had declined to register the order. Because there was no ability to review the registrar's decision, and the law allowed the parents to bring an application before a judge, they did so.

What are reasonable costs?

Justice Forrest rejected the submissions of the parents' lawyer that the surrogacy arrangement was a commercial surrogacy arrangement under the Queensland and NSW Surrogacy Acts. His Honour found that the surrogacy agreement was altruistic  and was not a commercial surrogacy arrangement disguised as altruistic surrogacy. His Honour stated:

"The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided."

Implications of the decision

Any Australian intended parents who have undertaken surrogacy in the US should consider making application to register their US orders with the Family Court of Australia. However, they should get expert legal advice on doing so. Properly handled, the registration application should be relatively quick, cheap and effective.

Registration may also be relevant in Hague child abduction cases where the order has been made in the US, and the child is wrongfully removed to Australia or wrongfully retained in Australia.

Those contemplating or in the process of undertaking surrogacy in the US should get expert Australian legal advice before the orders are made there- because of making sure they are the right form for the Australian courts.

Those who have undertaken surrogacy overseas, especially in the US, and believe that they have committed a criminal offence in Australia in undertaking surrogacy in the US should get expert Australian legal advice. They may not have committed any criminal offence after all. This is particularly important in NSW for example, as there is not time limit for offences there.

The case makes it plain that pre-birth orders made in the US are covered. Pre-birth orders are made in about 40 US states.

Australian citizens who live abroad who contemplate returning to Australia at some stage with their children should, in my view, seriously consider undertaking registration.

Obtaining registration should be a lot cheaper than having to obtain a parenting order under the Family Law Act.

Limitations of the decision

The case will only apply to surrogacy orders made in the US and New Zealand. It will not apply to surrogacy orders made elsewhere, for example in Canada. This is because only those jurisdictions that are prescribed overseas jurisdictions can have their orders registered in Australia by this method. Regrettably very few jurisdictions are prescribed overseas jurisdictions. 48 of the 51 US jurisdictions are prescribed overseas jurisdictions. The ones that miss out are: South Dakota, Missouri and New Mexico.

Justice Forrest noted that in a previous decision in 2013, Justice Ryan declined to register a pre-birth surrogacy order made in South Africa because:

"The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court."

Those contemplating registration should NOT do so by registering their order through the Attorney-General's department. They should also be very careful about how they undertake the registration process. The judgment shows that the parents had been rejected by a registrar, and that the process before a judge is discretionary. If the judge believes that it is commercial surrogacy, then the application might be rejected.

Every case is different

What might be great for one couple, might end up exposing another to not getting registration or, worse, possibly being prosecuted. Expert advice is needed. Where intended parents lived at the time they underwent the surrogacy is also relevant, because each State and the ACT have different laws as to surrogacy:

  • Queensland: If the limitation period has run out for prosecution (1 year after the last payment), then it should be considered, with careful consideration to whether the expenses were reasonable.
  • NSW: If the parents underwent surrogacy before 1 March 2011 or signed their surrogacy agency retainer before that date, then registration is appealing. For those after that date, consideration should be given first as to whether the expenses were reasonable.
  • ACT: Consideration should be given first as to whether the expenses were reasonable.
  • Victoria: Registration is recommended for those who entered into the surrogacy arrangement after 1 January 2010. For those who entered into before that date, consideration should be given as to whether the expenses were reasonable.
  • Tasmania: Registration is recommended.
  • South Australia: Care should be taken to make sure if it is a pre- July 2015 or post-July 2015 surrogacy arrangement. If the latter, was the consent of the Attorney-General obtained? Consideration either way would need to be given as to whether the expenses were reasonable and whether there has been the payment of valuable consideration.
  • Western Australia: Care should be taken as to whether there is a surrogacy arrangement for reward has been entered into in breach of the Surrogacy Act and the Criminal Code. If not, then registration is recommended- but it may not be advisable to do so in Western Australia. 
  • Northern Territory: Registration is recommended.

Thursday, November 3, 2016

Qld adoption changes: two wrongs don't make a right

Last night the Queensland Parliament passed amendments to the State's Adoption Act 2009 to allow same sex couples, singles and those undergoing fertility treatment to be eligible to adopt.

This was an historic moment. For the first time in history, this discrimination will be removed- and will enable the assessment of who is to be an adoptive parent for a child to be decided purely on the best interests of the child, and without discrimination based on the sexuality of the intended parents, or whether the intended parents are single as opposed to a couple, and stops the cruel choice for couples of either undergoing IVF OR adoption, but not both.

I and others were critical when the Adoption Act 2009 was enacted- because it was discriminatory. It is pleasing to see this change.

To get this Bill through required real courage on the part of the Palaszczuk government. The two independents voted in favour, as did the casting vote of Speaker Peter Wellington. His voted was needed was because the two Katter Party members voted against, as did, sadly,  the whole of the LNP.

And what was the rationale of the LNP? Quite simply- there aren't enough children to be adopted. They are right. There aren't. But that is no reason to discriminate. The assessment for every child should be based on the best interests of that child, consistent with our international obligations under the International Convention on the Rights of the Child. To do otherwise is unfair, discriminatory, unequal - and wrong. As my 2C teacher Mrs Bray taught me all those years ago: "Two wrongs don't make a right."

The Bill commences when it receives the Royal assent, which should be in the next few days. 

The Government's position is also in line with Australia's position to the world under the Turnbull government. Last year Australian went to the UN in Geneva, and after being roundly chastised by 100 odd other countries about its discriminatory practices with LGBTI people, said that it would stop allowing exemptions to the Sex Discrimination Act for State legislation. Those exemptions came to an end on 31 July.

What is also important from these changes is that for the first time in legislation that I have seen, there is a definition of infertility- and it is non-discriminatory. This definition is consistent with a non-discriminatory definition of infertility proposed by the World Health Organization. The message is clear- that those undergoing infertility treatment can include singles and LGBTI people.  Here is the definition:

Infertility, of a person, means-
(a)   An inability, for a reason beyond the person’s control, to conceive; or
(b)   A genetically transmitted disorder giving rise to a significant risk that, if the person was a biological parent of a child, the child would not survive or the child’s health would be seriously impaired; or
(c)    A condition giving rise to a significant risk that, if the person fell pregnant, the child would not be carried until the child could be delivered alive; or
(d)   A condition giving rise to a significant risk that, if the person fell pregnant, the person would not survive or the person’s health would be seriously impaired.

Monday, October 17, 2016

Single, gay, lesbian, bisexual, trans and intersex people want to have babies too

"I'm on the right track baby- I was born this way": Lady Gaga

It is one of those acts of fate that not all of us are born the way that we wish to be, or we need to be to be able to reproduce naturally.

Some women discover that their eggs don't work- and need an egg donor. Some men discover that their sperm doesn't work and a sperm donor is required.

Some women are born without a uterus, or are survivors of cancer, and need a surrogate.

Some of us discover that we are lesbians- and cannot have children without the aid of some man's sperm.

Some of us discover that we are gay or bisexual- and cannot have children without the aid of an egg donor and a surrogate.

But there are others of us who get forgotten. While some trans people can reproduce, others cannot. The hopes and desires of these people  to have children and to raise a family is just as real as that as anyone else.

Similarly, intersex people are often forgotten. They often cannot reproduce naturally, and just like seemingly everyone else may have that burning desire to become parents.

Some people are single, but still want to have children. They may need an egg donor, or a sperm donor or a surrogate or all three.

And for many people, unfortunately the law discriminates about whether they can or cannot be parents. In the powerful words of an old client of mine, "The Government cannot tell me when I can or can't have children. The Government can't play God." Well, yes it can and yes it does, or to be more accurate, Parliaments do so.

How do our reproductive laws discriminate?

By and large, we have State based fertility laws in this country, and they vary considerably.


There is discrimination in Queensland. The Anti-Discrimination Act specifically allows for discrimination on the basis of relationship status and sexuality in the provision of assisted reproductive treatment services. However, with the removal of exemptions to the Sex Discrimination Act on 1 August, the latter overrides the former. In practice, I have not heard of discrimination for a long time. The Surrogacy Act is non-discriminatory.

New South Wales

On its face, NSW law does not discriminate.


ACT law discriminates in surrogacy cases not on the basis of sexuality, but whether a person is single. Only couples need seek surrogacy, and the surrogate must also be part of a couple. No single surrogates can help in the ACT.


On its face, Victorian law does not discriminate.


Tasmanian law does not discriminate as to whether someone is single or a couple, or on the basis of sexuality. Given its small size, the surprising thing is that for surrogacy cases, EVERYONE must come from Tasmania at the beginning of the case. While that might be dispensed with by a Magistrate at the conclusion of the case, that is 18-24 months away at best.

South Australia

South Australia specifically discriminates against lesbians, single women at some level, and anyone who is seeking surrogacy who is not part of a heterosexual couple (and even those if they are in a de facto relationship for less than 3 years). However, South Australia is looking to legislate to remove this discrimination, possibly by the end of this year, which in any case is impacted by the changes to the Sex Discrimination Act.

Western Australia

Western Australia does not discriminate with assisted reproductive treatment services BUT it does discriminate with surrogacy. Funnily enough, heterosexual couples, lesbian couples and single women can access surrogacy, but gay couples and single men cannot. Where this leaves trans and intersex people- who knows.

Northern Territory

The NT has few laws affecting fertility, and therefore on the face of it no discrimination- BUT- the only clinic there will not provide surrogacy services (because there are no surrogacy laws in the NT and therefore there cannot be a transfer of parentage) and because the doctors come from Adelaide, their provision of assisted reproductive treatment, including IVF, is limited to South Australian laws.

And then there is the uncomfortable discussion...

I have acted for a number of trans intended parents. When the client is female to male, is he a woman for the purposes of these fertility laws? Is he a woman for the purposes of presumptions under the Family Law Act? I simply don't know, but suspect that the courts would accept him as male, similarly to marriage cases when marrying an opposite sex partner. However, some transmen have chosen to go off their hormones, and become pregnant. I was told recently by an expert about a transman doing this three times over.

And if the person identifies as female, whether trans or intersex, then there is the uncomfortable discussion about whether she is an "eligible female". If she is not an "eligible female" for the purposes of the legislation then surrogacy treatment at least may not happen.

If the person, like Norrie, identifies as neither male nor female, I do not know how they would fare with accessing treatment or surrogacy, especially in say Western Australia.

We shall see how these cases play out- where the law and medical practice might collide with the natural and burning desire of people to have children.

Monday, October 10, 2016

Why I believe that usually there is little point getting a parenting order for those undertaking surrogacy overseas

Recently a number of clients and an overseas colleague have raised with me about why there is a difference in viewpoints amongst Australian lawyers about whether or not it is advisable to obtain a parenting order in the Family Court after undertaking surrogacy overseas.

First the numbers

A legal answer does not rely upon statistics, but the statistics tell a story. In the last few years it is estimated that about 250 children a year have been born overseas via surrogacy and obtained citizenship here. The true figure will be higher- because some heterosexual couples pretend that they underwent pregnancy overseas, and those adults living here on visas don't seek Australian citizenship for their children.

But let's accept for the moment that there are 250 children born overseas via surrogacy who make their way back to Australia. About 3 of them each year will be the subject of parenting orders soon after returning. The other 247 won't be.

Their parents learn that while in theory it would be a good idea to have loose ends tied up and to obtain a parenting order, it is a very expensive process, and has a dubious outcome. Why bother?

Then the good news

The benefits an order can bring are that it says who has parental responsibility and says where the child resides. If one of the parents were to do a runner and abduct the child- and take the child to a Hague Convention country- then having the order would be very helpful.

And if the parents are lucky, they will be recognised by the court as parents.

The bad news

For parents who have paid say $120,000 undergoing surrogacy in Canada or say $200,000- $300,000 in the US, adding another $20-30,000 for a parenting order in Australia is a big ask.

What don't you get for the order?

You don't get citizenship. That will normally already be obtained. You don't get a Medicare card. You will have already done that. Armed with the citizenship certificate, the birth certificate and a Medicare, there should be no difficulty for most if not all parents in enrolling their child in day care, school, claiming Centrelink, including Family Tax Benefits, going to the doctor and to hospital in an emergency.

What do you get with the order?

Well just that you have parental responsibility and the child lives with you. If a declaration is made that you are a parent, then that will also mean that for inheritance purposes you will be recognised as a parent, and your child will inherit.

Quite simply, I am of the view that every adult should have a will. Those undertaking surrogacy have a special responsibility to their children to make sure that they have properly drawn wills- so that their children will be able to inherit- and uncertainty as to whether a child may or may not inherit, and subject to the rules of intestacy- will be completely avoided. Properly drawn wills provide certainty.

Won't the court declare that you are the parents?

In theory this might happen, but recent case law says otherwise. Take the couple known as the Dudley's, or the Dennis'es. Back in 2011 they went before one judge of the Family Court- who declared that they were the parents. They went before another judge (because they had had three children via surrogacy in Thailand) who said that he doubted that they were the parents- and here is the kicker- referred them to Queensland's Director of Prosecutions for possible prosecution for breach of the law in Queensland preventing people from undertaking commercial surrogacy overseas.

Queensland, New South Wales and the Australian Capital Territory have laws that stretch overseas. They make it an offence to go overseas for commercial surrogacy- as defined in those places. What you might think is altruistic surrogacy overseas might, because of the laws in those places, be commercial surrogacy back home.

South Australia and Western Australia also have laws that can make it an offence to go overseas for surrogacy.

The only places where it is clear that you can go overseas for commercial surrogacy without potential legal drama are Victoria, Tasmania and the Northern Territory.

Be that as it may, in 2012 one judge of the Family Court found that a Queensland man who went to Thailand for surrogacy was a parent. The following year she took the view in another case that she was probably wrong in the first case- and that a couple living in Sydney who had undertaken surrogacy in India were unlikely to be the parents. They later returned to the UK,  completely frustrated with the process here, overcame legal barriers and established in the UK that they were the parents.


  • a man who was the genetic father living in Victoria and went to India was found to be a parent.
  • a man from Western Australia who underwent surrogacy in India was found to be a parent.
  • a man from Victoria who went to India for surrogacy was held to be the genetic father- but said the court- it did not have the power to find that he was the parent. In the same case, the court found that the man's wife was NOT a parent because an egg donor was used- and in any case the court said that it did not have the power to declare her a parent. The couple have appealed.
  • a couple from Western Australia were found NOT to be the parents- and the judge criticised the earlier Western Australian case.
The simple point is that until there is clarification on an appeal, it is a simple lottery about whether you are going to be declared a parent or not- and for which you may the privilege of $20,000!


The South African case

In 2013, an Australian judge found that a man living in South African and who obtained an order there that he was the father of children was a parent here.

What was clear, unlike some of the other cases, was that the man was acting lawfully. The case may open the possibility that those who undertake altruistic surrogacy in Canada (provided it meets the description back here) or those undertaking surrogacy in the US from Victoria, Tasmania and the Northern Territory (and possibly South Australia) will be recognised as parents here- because they have lawfully in Australian eyes undertaken surrogacy there- and been recognised by the courts or authorities there as the parents (and should be recognised as the parents here).

So in a snapshot

I don't like clients wasting money. I don't like clients having uncertainty. Unless and until the process is a more certain and positive one- depending on the circumstances of my individual clients- I won't usually be recommending getting a parenting order from the Family Court. What at first seems like a real option is, on closer examination, not such a great idea for most people. The devil, as they say, is in the detail.

Tuesday, August 23, 2016

The national regulator beats up the IVF clinics

The only national regulator of IVF clinics across the nation (in several States, IVF clinics have the misfortune to have both State and national regulators), the National Health and Medical Research Council, has written to IVF clinics suggesting that fixed fees to egg donors might in some way be improper, and noting that this is an issue that will be checked come audit time.

The threat is a serious one- because the penalty for payment to an egg donor under the nation's Human Cloning legislation is up to 15 years jail. A possible outcome is the NHMRC trying to remove the licences of the IVF clinics concerned.

But it would appear that the view expressed by the NHMRC is misconceived. Why? Because it has to be established that the amount that a donor has been paid is not "reasonable expenses". What is reasonable will depend, of course, on each case, but provided the amount is low enough it appears to me at least that it could also be reasonable.

A good comparison might be the amount that a person claims for interstate travel. Unlike the NHMRC, the regulator of our taxes, the Australian Tax Office, has published guidelines on the amount considered reasonable and therefore claimable in accommodation and food for each of our major capital cities. The amount varies from city to city and as to the income of the taxpayer concerned, in certain ranges of income. But- and this is the point- here are the amounts that would clearly be reasonable- even though each taxpayer's circumstances are different.

Imagine if a donor were to stay in accommodation in one of the capital cities in order to donate. How could it possibly be argued that if the donor were paid an amount for that accommodation, and the accommodation was for an amount within the ATO range (admittedly for another purpose), that that amount is not reasonable?

And what if there were a series of donors whose expenses were essentially the same? Should they not receive the same amount, in a standardised manner- or is the NHMRC simply being unreasonable and suggesting that each and every time a donor donates there must be an assessment of each and every expense of the donor?

Part of the difficulty is that the NHMRC has not published any guidance as to what constitutes "reasonable expenses", and nor has there been any prosecution, so there is no guidance from a court as to what reasonable expenses might or might not be. Instead the NHMRC has decided to throw its weight at clinics and seek to threaten them with their licenses. And what might be the outcome of this behaviour- clinics will be less inclined to pay donors for fear of crossing the regulator, and intended parents will therefore be more inclined to go overseas out of necessity- where donors are typically anonymous, might be paid, and the child will never know who the donor is. Nuts!

And the only case where the issue of payment under the Human Cloning Act came up? It was of all places in the High Court. Two doctors were arguing about damages arising from frozen sperm that was non-compliant with , you guessed it, the Human Cloning Act. The doctor who bought the IVF practice had to get new supplies of sperm, and did this from a US sperm ban called Xytex. This is what Justice Hayne said:

"As already noted, however, the Court of Appeal concluded that the appellant had mitigated her loss by buying replacement sperm from Xytex. In respect of "the loss of each straw of replacement sperm actually sourced from Xytex" before the date of assessment of damages, Tobias AJA concluded that the chief component of the appellant's "loss" would be "the sum (if any) representing that part of the overall cost of acquisition of that straw not recouped from a patient". And in respect of "the residue of the 'lost' 1996 straws over and above those in fact replaced by Xytex sperm up to the date of trial", Tobias AJA concluded that "the appropriate course would have been to assume that [the appellant] would continue to source straws of donor sperm from Xytex at a cost consistent with that which had prevailed since August 2005, and that she would continue to recoup from patients the same proportion of that cost as she had done in the past". On this footing, Tobias AJA concluded that the appellant's damages in respect of straws not "replaced" would be "the aggregate of the discounted present value of the un-recouped balances (if any) of that cost as at the date of their assessment" (emphasis added)."

You can bet that the doctor paid a fixed fee to Xytex and the Xytex donors for each donation and did not negotiate and assess an individual amount each time.

The doctor also charged a "buffer" between what she paid for the sperm and what she charged patients. Justice Keane stated:

"The appellant, in providing ART services for a fee, cannot sensibly be said to be engaging in commercial trading in sperm for a profit."

Surely if the payments being made to Xytex were improper, they would have been commented upon, and disapproved by members of the High Court. Quite simply, there were no such comments.

If it's good enough to pay sperm donors a fixed amount, and the legal basis is under the very same section of legislation dealing with egg donors, why is it not good enough to be paying egg donors a fixed  amount, provided that amount is reasonable?

Sunday, August 21, 2016

The triumph of the Sex Discrimination Act- making it easier to access IVF for LGBTI people

At the beginning of this month, exemptions under the Sex Discrimination Act to allow the States to discriminate against LGBTI people ended. The impact of these changes, which have been barely mentioned, is profound.

What is the Sex Discrimination Act?

The Sex Discrimination Act 1984 is Commonwealth or federal legislation. It prohibits discrimination in a range of activities, including the provision of services, to people with certain attributes, including single women, and LGBTI people. There are exceptions, including religious exceptions.

Being Commonwealth legislation it reigns supreme. Under our constitution (and for that matter the ACT self-governing act) if there is a conflict between a piece of Commonwealth legislation and State or Territory legislation, the Commonwealth legislation prevails to the extent of the inconsistency.

Adding LGBTI people came later, and was not part of the original purpose of the Act. To allow the States time to adjust to the changes, the Commonwealth allowed some exemptions, essentially so that the States could get their houses in order and compliant with the Sex Discrimination Act.

The Commonwealth was criticised by about 100 other nations in Geneva last November at the UN for in essence being tardy on this point and allowing these exemptions to remain. The Commonwealth told the UN that it would remove the exemptions by the end of July 2016 (as also called for by then Human Rights Commissioner Tim Wilson ) and it has done so.

The demonstrated power of the Sex Discrimination Act

in the past, some States legislated to prohibit the provision of IVF to single women. It seems that only married women were good enough, in the eyes of their Parliaments to become parents. Well that fell foul of the Sex Discrimination Act, which prohibited discrimination on the basis of marital status. In two separate cases, the law was made plain- if a State law says that a doctor cannot provide treatment but the Sex Discrimination Act says that not to provide treatment is discriminatory- then the latter prevails.

The first case was that of Mrs Pearce. She was divorced and wanted to have IVF. She lived in South Australia. Her doctors refused to provide treatment- because she was not married, which would have been a breach of South Australian law. Mrs Pearce took the matter to the South Australia Supreme Court, which found that the Sex Discrimination Act prevailed, and she could have treatment.

Result: Sex Discrimination Act 1, State legislation: 0. 

The second case involved a well known Melbourne fertility doctor, Dr McBain, who was unable to treat a patient because she was single. Victorian law said only married women could access IVF. Dr McBain took the Victorian government to the Federal Court, which found that the Sex Discrimination Act prevailed, and the patient could have treatment.

Result: Sex Discrimination Act 2, State legislation: 0.

What does this mean for IVF?

Quite simply, any State laws that prohibit the provision of IVF on the basis of the patients relationships status or the patient being LGBTI are now rendered nugatory, due to being  inconsistent with the Sex Discrimination Act.

In South Australia, the Health Department recognised the problem and wrote to all the IVF clinics there and advised them of the change, telling them to get legal advice on a case by case basis. It is anticipated that later this year due to a process started by the Weatherill government, and in which I have input, laws will be passed in South Australia to remove discrimination in the ability of who can be a parent. But in the meantime, doctors now have an obligation to comply with the Sex Discrimination Act and provide treatment to those who were excluded before.

If in any doubt what a revolution this is, this is what s.9 of the Assisted Reproductive Treatment Act 1988 (SA) says about fertility doctors' licensing:

"(c)         a condition preventing the provision of assisted reproductive treatment except in the following circumstances:

                  (i)         if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (ii)         if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (iii)         if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;
                  (iv)         if—
                        (A)         the donor of the relevant human semen has died; and
                        (B)         before the donor died—
        •         the donor's semen was collected; or
        •         a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor's semen; or
        •         an embryo had been created as a consequence of such assisted reproductive treatment; and
                        (C)         before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and
                        (D)         if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and
                        (E)         the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis."

In Queensland, the Anti-Discrimination Act allows discrimination in assisted reproductive treatment services on the basis of relationship status and sexuality- in other words the very mischief seemingly ended by the removal of this discrimination. The Queensland Health Department has not written to IVF clinics advising about the change.

Other States

Despite being called upon by then Human Rights Commissioner Tim Wilson last year for all the States and Territories to review their anti-discrimination laws to remove discrimination against LGBTI people, it seems none have.

What does this mean for discriminatory surrogacy laws?

That bit is unclear. While the doctor might be able to provide IVF, if the intended parent is discriminated against because of being single (ACT and SA), single male (WA), a gay couple (WA), or a same sex couple (SA) in the ability to obtain through the court a surrogacy order, then we run into trouble. While there is clearly discrimination, if it is not in breach of the Sex Discrimination Act, then a doctor might be compelled to provide treatment, but be told by the regulator that IVF cannot be provided in surrogacy (such as WA).

The sooner the ACT, WA and SA get rid of their discriminatory laws concerning surrogacy, the better. Intended parents should not now be trapped between these two laws.