Monday, February 21, 2011

NSW Surrogacy Regulations published

The NSW Government has released the Surrogacy Regulations, which are to commence when the NSW Surrogacy Act starts on 1 March.

The first issue is the transitional provision, to cover those people who before 1 March 2011 signed a contract with overseas commercial surrogacy clinics. It provides:

Transitional—section 11
(1)  Section 11 of the Act [The criminal offence for entering into a commercial surrogacy arrangement whether in or out of NSW]   does not apply in respect of any act done outside New South Wales by a person in connection with a surrogacy arrangement or proposed surrogacy arrangement if the person engaged a surrogacy service provider before the commencement of the Act to arrange the surrogacy arrangement.
(2)  A surrogacy service provider is a person who arranges surrogacy arrangements for fee or reward.
(3)  A surrogacy service provider is engaged by a person when a written contract is entered into between the person and the surrogacy service provider under which the surrogacy service provider agrees to arrange a surrogacy arrangement for or on behalf of the person.
(4)  This clause does not affect any liability for an offence under Part 4 of the Assisted Reproductive Technology Act 2007 in respect of acts done before the repeal of that Part.
Note. Section 11 of the Surrogacy Act 2010 extends the jurisdictional nexus for offences relating to entry into, and advertising of, commercial surrogacy arrangements. As a consequence of that provision, the offences extend to acts done outside New South Wales by persons who are ordinarily resident or domiciled in New South Wales. Although similar offences existed under the Assisted Reproductive Technology Act 2007 before the commencement of the Surrogacy Act 2010, those offences did not have the same extended application to acts done outside New South Wales.

The concerns I raised in yesterday's article about the risk of prosecution for acts which have an effect in NSW before 1 March 2011 remain. 


A further issue that seems obvious to me is that the NSW Parliament makes plain that to commit a certain act after the commencement of the Act, ie it is an offence from 1 March  to enter into a commercial surrogacy arrangement including one outside NSW. The Regulations attempt to say that in certain cases an offence may not have been committed. While the regulation is a political fix for a law that quickly became controversial, it is questionable whether the transitional regulation is valid. A regulation is what is called delegated legislation. The power of delegation should not exceed the power of the Parliament in the first place. It is questionable whether the regulation exceeds that power of delegation.


Now for the red tape


When NSW Attorney-General John Hatzistergos announced that NSW was going to have a scheme to allow parentage orders, he said that he was going to copy the Qld surrogacy laws. In many ways he has, but for those people who live in NSW and have an interstate surrogacy arrangement (or outside NSW but one of the parties is in NSW) great care needs to be taken to ensure compliance. Special care needs to be taken to ensure those providing counselling or preparing reports meet the specific requirements of that State. For interstate arrangements, care needs to be taken to ensure compliance with one State or the other, or in some cases both.



Here is an example of unnecessary red tape and inconsistency between the states. I have used NSW and Qld only as a comparison because of the words by Mr Hatzistergos. It is just an illustration of why it would have been better to have uniform legislation.


Before the surrogacy arrangement is signed

The NSW Surrogacy Regulations provide that a counsellor who sees the parties before the surrogacy arrangement is entered into must be a member (or eligible for membership) of the Australia and New Zealand Infertility Counsellors Association and follow the surrogacy guidelines issued by ANZICA and the National Health and Medical Research Council.


If the counsellor is an experienced social worker or psychologist, that's not enough- the counsellor must be a member of ANZICA. "Eligible for membership" might mean that all is required is that the person is a social worker or psychologist, but to be able to join, not only must the person have those qualifications, but they must also be approved for membership. Therefore, a person who is either a social worker or psychologist might not be eligible. If this requirement is not met, then the appropriate counselling will not have occurred before signing, potentially dooming the chances of obtaining a parentage order.



In Qld, the counsellor who can see the parties before the surrogacy arrnagement is signed is much wider:


A) a member of the Australian and New Zealand Infertility Counsellors Association;
(B) a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;
(C) a psychologist who is a member of the Australian Psychological Society;
(D) a social worker who is a member of the Australian Association of Social Workers

Counselling after the birth


In NSW, the birth mother and her parent are required to have more counselling afterwards.  There is no such requirement in Qld. This counsellor for the NSW Surrogacy Act need not be a member of ANZICA, but must :


(a)  hold a qualification conferred by a university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and
(b)  be a qualified psychologist, qualified psychiatrist or qualified social worker, and
(c)  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of relinquishing a child.


The court report


To enable a parentage order to be made, a report is obtained from an independent expert. In NSW, the requirement is that the expert must:


(a)  hold a qualification conferred by a university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and
(b)  be a qualified psychologist, qualified psychiatrist or qualified social worker, and
(c)  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of relinquishing a child.

In Qld, the requirement is that the expert is:


 a person who--
(i) is one of the following--
(A) a member of the Australian and New Zealand Infertility Counsellors Association;
(B) a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;
(C) a psychologist who is a member of the Australian Psychological Society;
(D) a social worker who is a member of the Australian Association of Social Workers; and
(ii) has the experience, skills or knowledge appropriate to prepare the report.


Sooner or later intended parents will trip up on the difference in the red tape, emphasising the need for good legal advice from a lawyer specialising in surrogacy, like me. The differences in red tape mean higher unnecessary costs for clients, delays and possible failure of a parentage order application because of a failure to strictly comply with red tape. Some of these problems could have been avoided if the same provisions had been adopted in each State.

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