Monday, December 24, 2012

Merry Christmas

The other day I received a Christmas card on it with a photo of a very special baby sitting on Santa's lap. This baby was conceived through a surrogacy arrangement. I acted for the very proud intended parents. This little girl is now over a year old.

When I received the card, I smiled from ear to ear. She looked beautiful. The card reminded me of the joy I get out of my job- helping people achieve their dream of becoming parents, which makes me the luckiest man alive.

Merry Christmas, everybody!


Stephen Page

Monday, December 10, 2012

If Roxon's bill is passed, the proposed Queensland changes may be dead

In June this year, Queensland Attorney-General Jarrod Bleijie announced that the Newman Government would amend that State's Surrogacy Act so as to ensure that only married couples and heterosexual de facto couples who had lived two years together could seek surrogacy.

Those intended to be excluded were gay and lesbian couples, singles, and those in a de facto relationship of less than 2 years.

This intended discrimination is contrary to that in NSW, Victoria, Tasmania and the NT, which do not discriminate. WA discriminates by making those eligible for surrogacy having to be married or in a heterosexual de facto relationship or single women. Gay and lesbian couples and single men need not apply. SA has similar laws to those proposed for Queensland.

The ACT does not discriminate against gays and lesbians, but does so against singles. Those seeking surrogacy and surrogates (and their partners) must be a couple.

Federal Attorney-General Nicola Roxon has announced comprehensive Commonwealth anti-discrimination legislation. Currently unlike State legislation, the Commonwealth legislation has been piecemeal, for example covering racial discrimination, and that against women.

The draft exposure Anti-Discrimination Bill, if passed, and upheld by the High Court following an inevitable challenge, will change all that. It appears that it will ensure that discrimination no longer applies in surrogacy. Australians wherever they are should be able to seek surrogacy without any concern that the current discriminatory regimes will prevent them from proceeding.

This law, if passed and if upheld by the High Court, should kill dead the proposed Queensland changes. This doesn't mean that the Newman Government won't proceed with its changes- it says it will, and the Newman Government's statement should be accepted on face value- but if passed this draft Bill should  invalidate those discriminatory changes.

This is because of the effect of section 109 of the Commonwealth Constitution. The Founding Fathers were keen to put in a provision in the Constitution that says if there is a conflict between State and Commonwealth laws one must prevail- and section 109 says that the Commonwealth laws are the ones that prevail.

The draft Bill has a three card trick in dealing with discrimination, which as I will show, should remove discrimination in surrogacy matters.

The scenario

Bill and Ben, a gay couple, enter into a surrogacy arrangement. They are able to obtain treatment for the surrogate, a child is born and with the agreement of the surrogate is placed into their care. They apply to Queensland's Children's Court for a parentage order in their favour. Assume for the moment that the Newman Government's proposed changes to the Surrogacy Act occur- and on face value Bill and Ben are not intended parents within the definition of the Surrogacy Act, and cannot at face value obtain a parentage order.

The conclusion: If a Children's Court judge were to refuse to grant an order in their favour because Bill and Ben are gay (and because they are excluded by virtue of the Surrogacy Act), they have been unlawfully discriminated against. The court would have discriminated against them because they were gay- which is a protected attribute- because of their sexuality and their relationship status. That discrimination would be connected to an area of their public life, and therefore unlawful.

The three card trick

The first card: there must be discrimination

The relevant provision says:

"A person (the

first person) discriminates against another person if


the first person treats, or proposes to treat, the other person


unfavourably because the other person has a particular protected


attribute, or a particular combination of 2 or more protected


The Bill would cover any discrimination under State legislation (such as the proposed Queensland changes) because it also is proposed to apply to the States. Therefore any relevant discrimination (as there are some exceptions, which are not relevant to this discussion) provided for under State legislation may in and of itself fall foul of the law, and be unlawful.

The second card

The discrimination must be because of some particular protected attribute of the person.

Protected attributes include whether people are married, in a de facto relationship or single, or whether they are gay, lesbian or straight.

The draft Bill says:


The protected attributes are as follows:


(a) age;


(b) breastfeeding;


(c) disability;


(d) family responsibilities;


(e) gender identity;


(f) immigrant status;


(g) industrial history;


(h) marital or relationship status;


(i) medical history;


(j) nationality or citizenship;


(k) political opinion;


(l) potential pregnancy;


(m) pregnancy;


(n) race;


(o) religion;


(p) sex;


(q) sexual orientation;

(r) social origin.

I have highlighted three that are directly relevant to the proposed changes by the Newman Government.

The third trick

The discrimination must be unlawful

The discrimination against someone who has a particular protected attribute, must be connected with any area of public life. The definition of "any area of public life" is inclusive- in other words if there is something related to a person's public life that is not contained in the list, then that will also be unlawful. Put simply, going to court about surrogacy is a clear aspect of public life. It is asking the State to sanction with its approval the surrogacy arrangement that has taken place. If a judge in Queensland, for example, were to say:

"I am sorry Ms Jones I cannot make a parentage order in your favour because the Surrogacy Act prohibits you as a single unmarried woman from being an intended parent", then in my opinion that is an aspect of public life; that would constitute unlawful discrimination and therefore be prohibited if this draft Bill were passed.

It would be an extraordinay thing if the inability to obtain a loan is an area of public life (which it is under the definition) but going to court about your child conceived through surrogacy was not.

In addition, it could be argued that seeking a court order is seeking a "service" that is supplied by Government, which would  mean that the court or Government could not discriminate.

The Bill provides:

"(1) It is unlawful for a person to discriminate against another person if
the discrimination is connected with any area of public life.


Note: For exceptions to when discrimination is unlawful, see Division 4.


(2) The areas of public life include (but are not limited to) the




(a) work and work-related areas;


(b) education or training;


(c) the provision of goods, services or facilities;


(d) access to public places;


(e) provision of accommodation;


(f) dealings in estates or interests in land (otherwise than by, or


to give effect to, a will or a gift);


(g) membership and activities of clubs or member-based




(h) participation in sporting activities (including umpiring,


coaching and administration of sporting activities);


(i) the administration of Commonwealth laws and Territory


laws, and the administration or delivery of Commonwealth

 programs and Territory programs."

"Services" is defined as meaning:

" of any kind, including  (for example) the




(a) services relating to banking, insurance, superannuation and


the provision of grants, loans, credit or finance;


(b) services relating to entertainment, recreation or refreshment;


(c) services relating to transport or travel;


(d) services relating to telecommunications;


(e) services of the kind provided by the members of any


profession or trade;


(f) services of the kind provided by a government, a government

 authority or a local government body."

Sunday, December 9, 2012

Indian Americans struggle to adopt

As this article highlights, fewer and fewer children are available for adoption internationally, even Indian children for Indian Americans :

It's my body but their baby

The story of Queensland surrogate Rachel Kunde and how she has changed lives, bringing the gift of life to others:

The story goes to show how special surrogates like Rachel are. It also shows that the desire to have children, and the ability to care for children, is not dependent on sexuality.  

US Supreme Court cases highlight differences between biological and legal parentage

USA Today has written about the clear differences between biological and legal parentage:
The article shows the mess the law is in as to dealing with the advances in IVF and surrogacy- a position that is broadly reflected in Australia. Here lawmakers have struggled to make the laws reflect what is happening. For example, when I presented to NSW MP's in September abourt surrogacy matters, they were stunned that under their legislation "parents" of children born overseas via surrogacy (whether legal or illegal) may not be parents as a matter of law in NSW.
This is even if they are considered to be "parents" under the Australian Citizenship Act, or biologically the "parents" or even the "parents" in the overseas jurisdiction where the children were born.
Confused? Probably a good starting point for confusion is the Queensland couple who went to Thailand for surrogacy and then found themselves the subject of the Family Court surrogacy case, which I wrote about here:

Friday, December 7, 2012

Today I obtained my first NSW parentage order for surrogacy. What a brilliant day! Everyone is so happy. 18 months of preparation, child is born and orders made. Wonderful!

Wednesday, December 5, 2012

Thank you from a new mum

Today I received a thank you note from a new mum. She was an intended parent under a surrogacy arrangement. It was so lovely to receive:

"Thank you. Dear Stephen and Associates,

A big thankyou to all for the hard work, that went into, making my long time dream of being a mum, come true. A big thankyou once again...."