Monday, January 28, 2013

WA allows gay adoption via surrogacy

Western Australia's Family Court has recently allowed an adoption by a gay co-father of twins conceived through surrogacy in India.

In the  case, called Blake and Another, Justice Crisford could only allow the adoption to proceed if she found that Mr B's partner, Mr M was not only the genetic father of the child, but the legal father of the child.

Mr B sought a step-parent adoption of the children. The twins were born as a result of a surrogacy procedure which took place at a fertility clinic in Mumbai. The procedure was carried out by fertilising eggs from an anonymous egg donor with Mr M’s sperm. The fertilised eggs were then implanted in a surrogate, Mrs S, who gave birth to the twins.
 Mrs S, her husband and Mr M entered into a surrogacy agreement in December 2009 which was binding under Indian law. In accordance with that agreement, Mrs and Mr S relinquished all their rights to any children born of the surrogacy procedure, and covenanted not to engage in any legal proceedings in relation to their rights or custody of the children. The surrogacy agreement declared that Mr M is the ‘intended parent’ of the children. The surrogacy agreement makes no mention of Mr B.

Upon their birth in 2010 Mrs S gave the children into the care of Mr M and Mr B, who visited India for that purpose. Mr M was named as the father of the children on their Indian birth certificates. No mother is named on the birth certificates.
Mr M then applied for Australian citizenship for both children on the basis of their parentage. He provided DNA samples from the children and himself so that a parentage testing procedure could be performed at a laboratory in Sydney. The test results confirmed that Mr M has a 99.9% chance of being the "genetic parent" of the children.

 The Department of Immigration and Citizenship registered each child as an Australian citizen by descent on 7 August 2010. After the decision Mr M and Mr B returned to Australia with the children. Both children have lived with Mr M and Mr B since their birth. Mr M is an Australian citizen and Mr B is a Canadian citizen with permanent residency status in Australia.

Mr B, Mr M and the children were  residing overseas.

Policy issues

Her Honour noted the "well crafted" judgment in Ellison and Karnchanit, in which Justice Ryan determined that under the Family Law Act an intended father from Queensland was the legal father of a child born in Thailand via surrogacy.

Justice Crisford noted that there was a different factual and legal matrix in this case. For one, it was not being decided under the Family Law Act, but the Adoption Act of Western Australia.

To be eligible to adopt, Mr B had to fulfil the definition of a ‘step-parent’ for the purposes of a step parent adoption, and therefore Mr M would have to be defined as either a ‘birth parent’ or ‘adoptive parent’ of the children.

Artificial Conception Act

Her Honour found that Mr M would NOT be a parent for the purposes of the Artificial Conception Act. Section 6A of the
Artificial Conception Act 1985 (ACA) refers to the female partner of a woman who gives birth and has no application here.

 The rules relating to parentage under the ACA would seem to exclude Mr M from being the father. Section 7 states:

(2) Where -

(a) a woman becomes pregnant in consequence of an artificial fertilisation procedure; and

then for the purposes of the law of the State, the man referred to paragraph (b) -

(c) shall be conclusively presumed not to have caused the pregnancy; and

(d) is not the father of any child born as a result of the pregnancy.

 An artificial fertilisation procedure is defined for the purposes of the ACA as any:

(a) artificial insemination procedure; or

(b) in vitro fertilisation procedure.

Artificial insemination procedure and in vitro fertilisation procedure are then defined.

Her Honour, findng that IVF had been used, found therefore that Mr M was not the father under the Artificial Conception Act. This is entirely consistent with a matter questioned in 2011 by Justice Watts in the Family Court.

Ordinary meaning

Her Honour went on to say that the court could consider who was a "father" or "parent" in the ordinary meaning of the word.

Mr M  declared to the Department of Immigration and Citizenship that he was the father of the children, after a DNA test found that he was 99.9% likely to be the father.

Her Honour stated:
"Although the Court is satisfied that Mr M has established on the balance of probabilities that he is the biological or genetic father of the twins, it does not automatically follow that the state law recognises either him as a parent or Mr B as a step-parent....
There are certified copies of overseas birth certificates showing Mr M as the father. The certificates were accepted by the Department of Immigration and Citizenship in assessing the issue of citizenship and the provision of passports.
One overarching consideration is that since July 2010 Mr M and Mr B have acted as parents to these children. They have fulfilled that role for over two years without input from any other person who might be seen as a parent. ..
To suggest that Mr M is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of "family" in present day society. It is also turning a blind eye to the reality of the situation presently before the Court. The objective facts surrounding the birth and the manner in which various agencies have treated those circumstances coupled with the fact of the genetic father acting in that role since the birth of the twins points to the use of an expanded definition of parent.
To adopt any other interpretation would serve no purpose in addressing any public policy issues if, indeed, any exist. It would serve no purpose in enhancing the future welfare and best interests of these children.

 As the Australian Human Rights Commission submitted in Ellison  "the Court really needs to take children as it finds them". There is no valid reason to disadvantage children of surrogacy arrangements."

Her Honour then went on to make the proposed adoption order, finding that it would be in the interests of the children, including their identity and their long term welfare.


Although the decision is limited to the particulars of Western Australia's Adoption Act, there are some significant features of this case:

  1. The court looked at the reality of who is a parent. If a person can be the genetic parent of a child, recognised on the child's birth certificate as the parent, the mother and her husband having relinquished parenting by virtue of the surrogacy contract, with the father and his partner having undertaking the parenting for the children since their birth for two years, why would the court not recognise the reality?
  2. The provisions of the Artificial Conception Act are much like the Status of Children Act (NSW) to which Justice Watts of the Family Court questioned whether or not a father would be a "parent" of a child conceived through a surrogacy arrangement. His Honour then went on to say: "I note that Status of Children acts are generally more applicable to the protection of a sperm or egg donor in more conventionally assisted reproductive procedures."
  3. By looking at the reality of the situaiton, her Honour has possibly opened the door for more cases in which an intended father may be considered to be the father of a child.
  4. It was only because of the position of the WA Department for Child Protection that there was no investigation of the views of the surrogate or her husband. Otherwise it is likely that in line with the decision in Ellison such a costly and slow procedure would have occurred. Mr B and Mr M got lucky.
  5. This case is an illustration of how the law can cater for unintended cases. The Adoption Act was intended to apply to homegrown adoptions. Accordingly there would be an adoption plan. Her Honour saw that in light of the surrogacy contract there was no need for that.
  6. This case is also an illustration of how in other States such a step might not be taken. In Queensland, for example, adoption by same sex couples is banned, which also means that a decision like this could never occur under current laws in Queensland.
  7. Finally, this case is yet another illustration about why there needs to be reform about who is or who is not a parent through a surrogacy arrnagement, and  some common sense, as seen in this case, is welcome. There have been a series of cases in the Family Court in which different approaches were taken about who is or is not a parent. To have a clear legislative framework to acknowledge that if someone is recognised by the Department of Immigration and Citizenship as a "parent" that they are also recognised as being parents under the Family Law Act and relevant State legislation such as the Artifical Conception Act, would seem a commonsense and long overdue step.

Thursday, January 17, 2013

Regulatory update on India

Last night I blogged about regulatory worries in India for Australian intended parents. I note that I raised months ago my concerns about the changing environment in India, and the potential impact that that would have on Australian intended parents.

I am now told by Sam Everingham, the President of Surrogacy Australia, that the Indian government is processing surrogacy visa applications for those who have been married for greater than 2 years who live in:

  • Victoria
  • Tasmania
  • South Australia
  • Northern Territory
I still remain concerned about the regulatory regime in India. The changes brought in by the Indian government were publicised in October, when the changes occurred on 9 July, and are not based on legislation. There are Australian couples who signed up after 9 July and before late October who had no idea about the change.

The Indian government could change the policy at any time because it has not been legislated.

The sooner that India legislates, the better.

Wednesday, January 16, 2013

Regulatory worries from India

The other night I was interviewed by the ABC for their radio show, AM, about the changes in India. The ABC report is here. My interview can be seen and heard from here.

The point that I made to the ABC is one that I have been making for months now to clients, which is that India is changing the rules on surrogacy for Australians, that the rules are unclear, and that India has regulatory risk.

This is what we do know:

  • In 2008 and then in 2010 a draft Assisted Reproductive Technology Bill was circulated in India. The first thing that must be said about this is that it was a BILL, not an ACT- it is only a proposal and is not a law of the Indian Parliament. As far as I know, it has never passed Parliament.
  • This bill proposed that  those from outside India accessing surrogacy needed to have a letter from their home country saying that surrogacy was legal back home, and that they could bring the baby home.
  • The obvious problem with all of that for Australians was as to whether or not the Australian government would write any letter, and if it did, whether it would cover the last two elements. I have written seeking an answer from Attorney-General Nicola Roxon, but I await a reply as to whether such a letter would ever be written and of so what it would say.
  • Another obvious problem was to identify the home country. If a person is living in country A, but is a citizen of country B, which country is supposed to write the letter- that to which the person is a citizen but does not reside, or that in which the person lives but is not a citizen? What if a couple live in country A, but one is a citizen of country A and the other of country B? Does country A write about both of them or only about its citizen? These are not esoteric questions. I have already had clients who have asked me this question and for the moment at least I don't know the answer.
  • On the last element, the practice of the Australian Department of Immigration and Citizenship is quite clear- to establish citizenship by descent of any Australian child, a DNA needs to show a genetic link to the Australian Parent. I might mention at this stage that this test is NOT the law, and is contrary to a ruling of the Federal Court, but I am told by noted migration agent Roman Deauna that it remains the practice applied by the Department to children born via surrogacy to Australians in India.
  • But what is "surrogacy"? Australia has the half-pregnant answer (if you excuse the pun). For some reason our politicians believe that the halfway measure of non-commercial surrogacy (or as we call it in Australia, altruistic surrogacy) is OK, but that commercial surrogacy is not OK (except in the NT, where limited commercial surrogacy can occur). This question is important, because India does not define what "surrogacy" is. However it appears clear that India considers "surrogacy" to be "commercial surrogacy" not "commercial and non-commercial surrogacy".
  • In 5 of 8 jurisdictions in Australia, while it is illegal to engage in commercial surrogacy in that jurisdiction (except in a limited way in the NT), it is legal to engage in commercial surrogacy overseas. By contrast, it is illegal to engage in commercial surrogacy overseas for those in Queensland, NSW and the ACT.
  • In April, as I posted here, India changed the rules, requiring the letter to be obtained from the Australian government and for intended parents to obtain a medical visa. There seemed to be no legal basis for the change, but nevertheless the change happened.
  • Then things seemed to settle until October. In reality, they changed on 9 July 2012, when the Indian Government changed the policy again, but did not announce it until October! I blogged about it here.
  • The big change was that although the draft ART Bill recognised that singles and couples could access surrogacy, now India wanted to exclude most Australians who were seeking surrogacy there. Only those who were married for 2 years need apply- all others miss out. Therefore gay and lesbian couples, singles and those in de facto relationships would completely miss out.
  • It also appeared to me that because of the requirement that surrogacy had to be "legal" that only those living in the NT need apply. People who lived in Victoria, Tasmania, SA and WA while they might legally engage in commercial surrogacy overseas nevertheless would still be committing offences back home if they were to engage in commercial surrogacy. Surrogacy in the Indian context therefore was not "legal".
  • I was concerned that India would therefore limit Australians to those living in the Northern Territory who were married 2 years.
I learned today from Mr Sam Everingham the President of Surrogacy Australia, that India is issuing medical or surrogacy visas for those from Victoria. This is of course only for those who have been married for 2 years. How long this will last is not known. It could change tomorrow. I do not know whether India is adopting the same process for those living in Tasmania, SA and WA. I do not know if this means that the Australian government is writing the magic letters demanded by India.

Pity those poor people who thought they were in the clear, and after 9 July but before late October signed contracts in India and are waiting for their babies. For them the wait and uncertainty must be agonising.

The Deputy Commissioner of Police for Special Branch in Mumbai had this to say just before Christmas, signalling a "get tough" attitude, demanding the names and details of clients of surrogacy agencies:

Subject:                 Regarding Surrogacy Issues involving Foreigners

With reference to the above mentioned subject this is to confirm that the Government of India, Ministry of Home Affairs, New Delhi has issued clear guidelines pertaining to the foreign nationals intending to visit India for commissioning surrogacy.

As per the guidelines laid down by MHA, New Delhi, below mentioned features should be followed in case of surrogacy related to foreigners:

1.       Tourist visa is not the appropriate visa category and such foreigners will be liable for action for violation of visa conditions.  The appropriate visa category for commissioning surrogacy is a medical visa.

2.       The foreign man and woman intending to commission surrogacy should be duly married and the marriage should have sustained for at least two years  Please also note that current  Indian laws do not recognise gay marriages.

3.       The couple commissioning surrogacy should be in the possession of a letter from the Embassy of the foreign country in India or the foreign ministry of the country stating clearly that:

a.       The country recognises surrogacy;

b.      The child/children to be born to the commissioning couple through the Indian surrogate will be permitted entry into their country as a biological child/children of the commissioning surrogacy.

4.                       The couple commission surrogacy is required to furnish an undertaking that they would take care of the child/children born through surrogacy.

5.       The couple should produce a duly notarised agreement between the applicant couple and the prospective Indian surrogate mother.

6.       The treatment concerning surrogacy should be done only at one of the registered ART clinics recognised by ICMR.

7.       The foreign couple before leaving India for their return journey would require exit permission and should be carrying a certificate form the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and the liabilities toward the Indian surrogate mother are fully discharged as per the agreement.  A copy of the birth certificate(s) of the surrogate child/children will be returned by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents.


You are therefore hereby ordered  to ascertain all the above mentioned details before commissioning the surrogacy cases of foreigners and not to accept any case for surrogacy if the conditions of no. 1 to7 of this letter are not fulfilled by the foreigner.  Contravention of this order                   may hold you liable for legal action under the Foreigners Act 1946.  Also you are hereby informed that  because of noncompliance of this order on your part if in future any complication arises in respect  or surrogate baby’s nationality and their parenthood, you will be held responsible for it.


Further you are directed to provide list of foreigners with the details of their nationality, visa, passport, etc. who have  already registered with you for commissioning surrogacy to this office.


I know this also sounds obvious, but the Indian approach is for the "country" to recognise surrogacy. Despite India also being a federal system, there has been no recognition of the Australian federal system. Australia as a country does NOT recognise surrogacy. It only happens with each separate State and Territory. The only formal recognition at the Federal level is of state and territory parentage orders being made- which all necessarily involve non-commercial or altruistic surrogacy, and only apply in Queensland, NSW, ACT, Victoria, SA and WA. Parentage orders cannot currently be obtained in Tasmania and the NT.
There is also a new requirement since 9 July requiring the clinic to be registered with the Indian Council of Medical Research. This arbitrary approach was without any consultation with the Indian clinics- because at the time of the change, NOT ONE clinic was registered. I am informed by my colleague Amit Karkhanis that clinics are now being registered.
The future
I am of the view that for those Australian intended parents for whom it is legal to go to India that they will have second thoughts. I expect that there will be an upsurge in demand for altruistic surrogacy in Australia (which is often cheaper and much easier than going overseas. Don't believe me? Ask me.), as well as increases in demand for Thailand (also a regulatory worry) and the USA. The USA it must be said offers a clear choice- no regulatory uncertainty (depending on the state), transparent processes, the ability to have an ongoing relationship with the surrogate, finding out the genetic history of the donor (although I will blog separately about the vexed issue of donors) and the bonus of the child having US citizenship as well as Australian.
I also expect that Aussie intended parents will go to the more exotic locations- or as a colleague of mine said to me- the weirds and the wonderfuls- Ukraine, Republic of Georgia, Uganda, Kenya, and Mozambique, and now I have heard the Republic of Cyprus. Except for Cyprus, none of these I expect will welcome same-sex intended parents. In Uganda after all the death penalty was recently advocated for those engaging in gay sex acts.