Two weeks ago I gave a snapshot of surrogacy across the nation to the conference of the Fertility Society of Australia, held in Hobart. Here is my presentation:
Fertility
Society of Australia
Hobart
Conference
16
September 2019
Surrogacy
Snapshot
Stephen
Page
Surrogacy
Snapshot
Given the
limited amount of time I have today, I wanted to focus on major developments
that have occurred with surrogacy.
International
In 2011 the body
responsible for the writing of Hague Conventions – the Hague Conference on
Private International Law – commenced a project looking at whether there should
be a convention concerning private international law regarding children,
including international surrogacy arrangements.
Private international law in essence is the law in different countries
affecting individuals and companies. The
prime means of dealing with the private international law has been the writing
of conventions at The Hague. Australia
is a member state.
The Hague
Permanent Bureau, the body responsible for administering the conference, has
for a number of years engaged a group of 20 working experts (one per country)
to help guide it as to how to deal with this issue. Some years ago, the Hague Conference decided
that there ought to be a convention about each issue. The Australian representative at the working
group is the former Chief Justice of the Family Court of Australia, the
Honourable John Pascoe CVO AO. There are
two observer organisations at the working group and dealing with the Convention,
the International Academy of Family Lawyers, and International Social
Services.
In 2016, I
co-wrote and was the principal advocate for a policy position of the American
Bar Association as to the form of a proposed Hague Convention. It argued that the appropriate course was
that of comity or mutual respect and that the most apt form would be to have
mutual recognition of orders concerning children.
In 2018, the
working group recommended, and the Conference accepted that that model was the
appropriate model for regulation of international surrogacy arrangements. We are many years away before there is a
convention.
Surrogacy in the United States
I am indebted to my Los Angeles colleague Andy Vorzimer, one of the
leading surrogacy lawyers in the world who gave me these statistics in September
last year:
“The statistics have been compiled by our
office since 1994. As of last month, we
have calculated that since 1979 in the United States:
·
More than 151,000 surrogate deliveries;
·
13 instances of gestational carriers manifesting an intent to keep
custody of the child;
·
25 instances of traditional surrogates manifesting an intent to keep
custody of the child;
·
91 instances of intended parents threatening not to take custody of
their child.”
United
Nations
The United
Nations Special Rapporteur on the sale and sexual abuse of children and the
exploitation of children in child pornography last year wrote a report in which
she was critical of safeguards concerning children in surrogacy throughout the
world. Her focus at that stage was the
optional protocol to the International Convention on the Rights of the
Child.
In her report,
the Special Rapporteur was critical of the American Bar Association
report. Furthermore, she asserted:
1.
That the making of pre-birth
orders concerning children in surrogacy arrangements (as commonly occurs in
many parts of the United States, as well as Argentina and South Africa)
amounted to the sale of children.
2.
That the entering into of
binding contracts with surrogates (as commonly occurs, for example, in the
United States and Canada) amounted to the sale of children.
3.
That the payment to surrogates
of any amount above their reasonable expenses (which is arguable occurs in much
of the United States and indeed is arguable depending on who was doing the
defining may be occurring in Canada) amounted to the sale of children.
In my view, to
assert concerns about the human rights of surrogates, children and the intended
parents is entirely appropriate. There
are jurisdictions in the world where there are very few human rights
protections, some practices are corrupt and the IVF industry is
unregulated. Chief Judge Pascoe as he
then was describes some of the surrogacy jurisdictions as being akin to the
Wild West. I think that description is
apt.
But to
characterise in effect surrogacy occurring in Argentina, South Africa, the
United States and Canada as being the sale of children is absurd and out of
touch.
Following that
report, a conference was organised in Cambridge in June this year comprised of
250 invited surrogacy experts from around the world. They included John Pascoe, counsellor Narelle
Dickinson from Queensland, Louise Johnson from VARTA, Justice Bennett from the
Family Court and Judge Harland from the Federal Circuit Court.
The purpose of
the conference was to highlight:
·
Current research about
surrogacy outcomes for parents, children and surrogates;
·
Different models of surrogacy
regulation varying between outright prohibition, fairly strict regulation,
looser regulation to a more liberal model; and
·
Aiming for a future approach
concerning surrogacy.
I was glad that
the Special Rapporteur was able to attend.
Just before the
Cambridge Conference was held, the Law Commissions of England and Wales and Scotland
issued a discussion paper calling for reform of surrogacy laws there so that
rather than having the post birth model, instead provided that a checklist of
mandated steps had taken place then at birth the intended parents were
automatically recognised as the parents.
In disputed cases, nevertheless, it would be a matter for a judge. The report is a helpful summary of current
research regarding surrogacy.
Interestingly, UK surrogates considered that they were not the parents
and never considered themselves to be.
They had always considered that the parents were the intended parents
and they too were keen to ensure that at birth the intended parents were
recognised as the parents, not at some later time.
Prior to the
conference, the Special Rapporteur called for submissions in view of her
addressing the UN General Assembly in October this year. The US in its submission (which I have attached) says bluntly to the effect
that the US is of the view that the Special Rapporteur does not have the
relevant jurisdiction.
Human Rights
Watch and the International Women’s Health Coalition in a comprehensive
submission set out international law that might relate to surrogacy, including
the right to found a family. I have attached this submission at the back of
this paper.
After the
Special Rapporteur attended the Cambridge Conference, I am delighted that
instead of what appeared to be her earlier approach was that in addition to
there being a Hague Convention that there also be a United Nations Convention,
she took the view that the approach to an international regulation of surrogacy
should be through a Hague Convention, albeit with more focus on human rights.
Part of the
difficulty in approaching this subject is that the focus of the Europeans
(remembering that much of Europe prohibits surrogacy) has been on the rights of
the child. For constitutional and
historical reasons, much of the focus of the United States instead has been on
the right to procreate. Between these
fundamentally different viewpoints, The Hague somehow is expected to produce a
meaningful convention!
Australians
going overseas versus domestic surrogacy
It remains the
case that Australians go overseas at a much greater rate of knots than undertaking
surrogacy at home. The most recent
figures that I have seen from 30 June 2018 say that 179 children obtained
Australian citizenship by descent after their parents had undertaken an
overseas surrogacy journey. That number
will understate the number who undertook surrogacy overseas because:
·
There will be some heterosexual
couples who falsely state to the Department of Home Affairs that the child was
carried by the mother (not the surrogate).
·
There are a number of visa
holders in Australia, for example, permanent residents, who undertake surrogacy
overseas and their children will not appear in the citizenship statistics.
My best estimate
on the number of children who are born through domestic surrogacy each year is
between 60 and 70. The numbers are
opaque, in part because in the New South Wales and Victorian courts they are in
the adoption lists, but those lists aren’t broken down to between adoption and
surrogacy. Most of those surrogacy
journeys occur in Queensland and New South Wales and Victoria. In South Australia and Western Australia by
contrast, typically there is one child born through the surrogacy process a
year.
Again, those
numbers do not adequately reflect all the surrogacy journeys that are occurring
in Australia. From time to time I am
told by IVF clinics of suspicion that intended parents have not been honest
about their journey and may well have been undertaking surrogacy (although they
are representing that they are undertaking some other form of ART) – as a
couple. I have had a case where the
parties misrepresented themselves to two such clinics to that effect. How common it is I do not know.
In addition, in
part because of perceptions about cost, there are a number of traditional
surrogacy journeys that occur in Australia not involving lawyers (at least not
until later if at all) or courts. It is
hard to know those numbers. But
nevertheless in broad terms of the numbers that are known, it would appear that
for every child born in Australia through surrogacy, three are born overseas.
Commonwealth
The 2016 House
of Representatives Inquiry came and went.
It recommended that there be nationally consistent laws regarding
surrogacy and that it be harder to undertake surrogacy overseas. It recommended urgent action. There was no response from the Federal
Government of any kind until November 2018, when it said that it would work
with the States and Territories.
Much more
significantly has been the effect of the High Court decision in Masson v. Parsons [2019] HCA 21 in which
the High Court laid out the test as to who was a parent under the Family Law Act, i.e. when there is
artificial reproductive treatment, that a parent is someone in ordinary
contemporary Australian usage of English to be a parent. The nature of that definition means that
there does not necessarily need to be a genetic link between a parent and
child.
The High Court
made plain that the Family Law Act
reigned supreme and that where there was a conflict between the Family Law Act and the State or
Territory Status of Children Act, the
latter is irrelevant.
Therefore it
must be assumed that when there is any known donor, the known donor may well be
a parent. The six judges of the High
Court who delivered a joint judgment (the seventh agreeing with the outcome)
also held that it wasn’t settled that the number of parents under the Family Law Act was necessarily limited
to two. One must wonder if all the State
and Territory surrogacy legislation is now rendered redundant because of that
decision. One must also wonder who gets
named on the birth certificate at the beginning. Each case will need to be decided carefully
in light of that decision.
The Family Court
had previously held in Bernieres and
Dhopal [2017] FamCAFC 180 that a Victorian couple who had undertaken
surrogacy overseas (and done so lawfully in Victoria) were not the parents
under the Family Law Act because they
did not fall within any category of who was a parent under that Act and did not
fall within any category of who was a parent under that Act and did not fall
within any category of who was a parent under the Status of Children Act 1974 (Vic). Although the reasoning of the High Court in Masson v Parsons did not directly relate
to Bernieres and Dhopal, it would
appear that Bernieres now is
incorrect law and that Mr and Mrs Bernieres would be recognised as parents
under the Family Law Act.
There have been
five cases in the Family Court in which there has been an attempt to register a
US surrogacy order with the Family Court.
At the time this appeared to be the only way in which those parents
could be recognized as parents in Australia.
The cases are:
·
Re Halvard [2016] FamCA 1051;
·
Re Grosvenor [2017] FamCA 366;
·
Sigley and Sigley [2018] FamCA 3;
·
Rose [2018] FamCA 978;
·
Allan and Peters [2018] FamCA 1063.
I acted in Re Grosvenor, Sigley and Sigley, Rose and Allan and Peters. In Re
Halvard, Forrest J ordered that the names of the lawyers not be
published.
In the cases
decided by Justice Forrest, registration was granted. In the two cases decided by Justice Carew,
registration was refused, in part because it would give curial approval to
commercial surrogacy.
The cases are a helpful
guide as to what is and what is not commercial surrogacy, particularly under
the Queensland and New South Wales Surrogacy
Acts.
|
The
personal challenge from Masson v. Parsons
My husband Mitchell and I have
had a baby daughter Elizabeth through surrogacy. She is now at the time of this conference
two months old. This was a domestic
arrangement in Brisbane. Our surrogate
is single. Our child was conceived
from Mitchell’s sperm and egg from a friend who was an egg donor. Two issues have occurred following
Elizabeth’s birth.
The first occurred the night she
was born. Elizabeth was born in the
early hours of the morning. For
medical reasons our surrogate had been in the hospital for over a week. She wanted to go home to spend time with
her daughter. Elizabeth had to spend
the night in hospital for some health checks.
Our surrogate was given her discharge papers. The word “surrogacy” was then
mentioned. The hospital, despite its
size and being very experienced with surrogacy, not come across a surrogate
leaving before the baby. The matter
was dealt with by one midwife and then another and then escalated to the head
of the midwife section, then an executive, then another and from recollection
a third executive before the hospital lawyer was called.
The hospital lawyer’s advice
back through this telegraph system was it was not “advisable” for our
surrogate to leave. This was code for
if she did leave, then there may be drastic consequences. The thinking behind it was that our
surrogate was the only parent. As a
matter of law, this was untrue in light of Masson v. Parsons. At the
very least, Mitchell was also a parent, and possibly me too.
It felt as though our surrogate
had been violated. She was extremely
distraught because in effect she was being held prisoner at the
hospital. It was truly an awful
experience I do not wish upon anybody else. I have since written to the
hospital and I hope that there is not a repeat.
Elizabeth’s birth had to be
registered. The question that I faced
following Masson was as to whose
name was to be on the birth certificate as a parent. Prior to the decision in Lamb & Shaw [2017] FamCA 769, it
was clear in Queensland under the Status
of Children Act that the only parent was the surrogate (irrespective of
genetics) and therefore only she would be named on the birth certificate as
the parent.
Lamb
& Shaw
highlighted section 23 of the Status of
Children Act 1978 (Qld) which says to the effect that the provider of
sperm unless subsequently married to the birth mother does not have the
rights or responsibilities as a parent.
In Lamb & Shaw, Justice
Tree formed the view that therefore an intended father through surrogacy who
was also the genetic father where the surrogate was single was therefore a
parent under the Status of Children Act,
albeit one with no rights or responsibilities.
Childrens Court judges in
Queensland have not followed that approach.
They have been firmly of the view that because of the definition of birth parent under the Surrogacy Act (which excludes an
intended parent) that therefore an intended parent (such as Mitchell), should
not in those circumstances be named as a parent on the birth register.
The result of Masson v. Parsons would therefore say
that Mitchell at the least was a parent under the Family Law Act and therefore he should have his name on the birth
register. The problem with that is
that the Childrens Court of Queensland may not be empowered to transfer
parentage from Mitchell and our surrogate to Mitchell and me.
Ultimately the decision was made
that only a surrogate was named on the birth certificate and that if an error
has been made in the view of a judge, then that can be rectified by the
making of an order to have both Mitchell and me named on the birth
certificate as parents.
I never expected in my life to
be a test case, but apparently that happened. That was always to happen with
clients!
|
Queensland
Surrogacy in
Queensland continues to be regulated by the Surrogacy
Act 2010 (Qld). There have been no
prosecutions under that Act whether domestic or international surrogacy since
its enactment. Plenty of Queenslanders
have gone overseas for surrogacy, some clearly for commercial surrogacy in that
period.
New South Wales
Between 2014 and 2018, the Department of Justice carried out an
international review of the Surrogacy Act
2010 (NSW). No changes were proposed. It was acknowledged that it was difficult
prosecuting those that went overseas for commercial surrogacy. Commonwealth leadership was called for.
The only
significant legislative change was last year to the Artificial Reproductive Technology Act 2007 concerning the use of
embryos.
There have been
no prosecutions under the Surrogacy Act
2010 (NSW) whether domestic or international, since its enactment. There are many residents of New South Wales
who have undertaken surrogacy overseas, some commercial.
Australian
Capital Territory
There has been
no change to the law and none proposed.
The Parentage Act 2004 (ACT) continues
to regulate surrogacy. It continues to
provide discrimination in that it requires the intended parents to be a couple
and the surrogate to be part of a couple.
The ACT, like
Queensland and New South Wales criminalises overseas commercial surrogacy. No prosecution has occurred.
Victoria
Victoria has
just gone through an extensive review of ART and surrogacy laws. There has been criticism of the Patient
Review Panel (although that was not within the terms of reference). There were some horror stories about the
approach taken by the Patient Review Panel.
The Panel remains. There is
liberalisation proposed as to what surrogates can be paid for expenses, to
bring Victoria in line with the scheme in New South Wales and Queensland. Currently the offence in Victoria is to pay a
surrogate more than prescribed expenses.
It is recommended that there be a specific offence of entering into a
commercial surrogacy arrangement.
The review
concluded that it would not recommend the overseas criminalisation of
commercial surrogacy. It noted that the
House of Representatives and the SALRI review in South Australia had recommended
not to do so but that Professor Sonia Allen in her Western Australia review had
recommended overseas commercialisation of surrogacy, that there was strong
arguments either side, that this required a further inquiry and in any event
was outside its terms of reference.
The proposed
changes in Victoria are in my view worthy of a presentation of their own.
Of course, in
Victoria it is not an offence to engage in commercial surrogacy overseas.
The legislation
governing surrogacy in Victoria remains the Assisted
Reproductive Treatment Act 2008 (Vic) and the Status of Children Act 1974 (Vic).
As far as I am aware, there have been no prosecutions under the Assisted Reproductive Treatment Act 2008
for paying a surrogate greater than prescribed expenses.
There has
currently been a Bill progressing through the Victorian Parliament to allow
married women to undertaking ART without the consent of their husbands. This occurred following a Federal Court case
last year when a woman successfully challenged that restriction.
Tasmania
Surrogacy in
Tasmania continues to be regulated by the Surrogacy
Act 2012 (Tas). It is lawful in
Tasmania to go overseas for commercial surrogacy. There have been no prosecutions under the Surrogacy Act 2012 and as far as I am aware,
there are no proposals to change the legislation.
South
Australia
South Australia
remains a moving feast when it comes to legislation. There have been amendments to the surrogacy
legislation there in 2015, 2017, a further proposal for amendments in 2018
(which ultimately were shelved) and now there is a draft Surrogacy Bill before
Parliament.
The Surrogacy
Bill was preceded by a review by Professor Allen, an inquiry by the South
Australian Law Reform Institute (SALRI) as to discrimination in South
Australian law against LGBTI people
and a further SALRI inquiry specifically as to surrogacy. The Bill proposes to replace provisions in
the Family Relationships Act 1975 (SA)
and makes some incidental amendments to the Assisted
Reproductive Treatment Act 1988 (SA).
The Bill is
likely to be debated in Parliament later this year and if so, is expected to
take effect early in the New Year.
Some significant
features of the Bill are:
1.
It is standalone legislation,
rather than being tucked away in the provisions of the Family Relationships Act.
2.
The reference to commissioning parents (as was recommended
in Victoria) is to be ditched in favour of intended
parents.
3.
A principle of the Bill is to
uphold the human rights of all involved (including the child).
4.
The approaches taken in the
Queensland and New South Wales Surrogacy
Acts are largely adopted.
5.
Entering into a commercial
surrogacy arrangement will be a specific criminal offence and, it is arguable,
may be an offence in doing so overseas.
SALRI was of the view that, despite my submission that there was a risk
under the existing law of committing an offence relating to surrogacy overseas
that that was not the intention of Parliament in the current legislation. Professor Allen in her WA review commented on
SALRI’s comment that that was a matter for interpretation.
Western
Australia
Professor Sonia
Allen has undertaken an extensive review of the regulation of ART and surrogacy
in Western Australia. She has
recommended, for example, that the Reproductive Technology Council be abolished
and the current central register in Western Australia which she describes as
not being fit for purpose be replaced.
She has also suggested broad liberalisation of the Surrogacy Act, to bring it in line with the model seen in
Queensland and New South Wales.
Professor Allen
has also recommended that there be specific overseas criminalisation of
commercial surrogacy. It is currently an
offence under the Surrogacy Act 2008
(WA) to enter into a surrogacy arrangement that is for reward and if any of the
elements of that offence are committed in Western Australia even though it is
an overseas surrogacy arrangement, the offence is still committed.
Professor Allen
argues that overseas criminalisation is warranted, in part because of concerns
raised by the Special Rapporteur in her first report. In her second report (published after
Professor Allen’s review) the Special Rapporteur recommends that the intended
parents not be criminalised, but that intermediaries be the subject of criminal
sanction.
A feature of the
Surrogacy Act is that single men and
male couples cannot access surrogacy, in what appears to be a clear breach of
the Sex Discrimination Act 1984 (Cth). I wrote to the Health Minister regarding this
in 2017. Some months later the inquiry
was called. A Bill to rectify this
discrimination was passed by the Lower House of Parliament. When it got to the Upper House, it
stalled. It was then referred to
Committee. The Committee has called for
extensive changes to that Bill. I am doubtful
as to whether there will be substantial reform in Western Australia in this
term of Parliament.
Northern Territory
The Northern Territory Government has been watching keenly the
events in South Australia. Helpfully,
the Northern Territory Health Minister is also the Attorney-General. There have been two public fora held
concerning surrogacy, one in Darwin and one in Alice Springs. It would appear that, subject to what is
happening in South Australia, that the Northern Territory at long last may have
laws concerning surrogacy. It is not
before time.
Stephen Page
Page Provan
2 September 2019
