Wednesday, March 27, 2013

Government doesn't play God

Qld not to have discriminatory surrogacy laws

Brisbane Times is reporting that the Newman government has shelved plans to have discriminatory surrogacy laws. Thank you to everyone who has been a part of opposing what would have been regressive laws. For me this is a joyous moment. When I and others drew the line in the sand over this issue, I saw that we had an almost zero chance of success, but that it had to be fought, tooth and nail. I feel like I have had a terrific weight lifted off my shoulders!

The article is here:

Thursday, March 21, 2013

Get rid of LGBTI discrimination- Judge

Independent (and former LNP) Queensland MP Carl Judge called in Queensland Parliament last night for the end of discrimination against LGBTI people, including in his being opposed to the proposed discriminatory changes to that State's Surrogacy Act.

 In 2008 the since removed Prime Minister issued an apology to Australia's Indigenous peoples. In his speech, Mr Kevin Rudd said—
We reflect in particular on the mistreatment of those who were stolen generations—this blemished chapter in our nation's history.
He added—
The time has now come for the nation to turn a new page in Australia's history by righting the wrongs of the past and so moving forward with confidence to the future.
In June 2012 the Attorney-General and Minister for Justice introduced the Civil Partnerships and Other Legislation Amendment Bill 2012 in this parliament. That bill, as passed, was fundamentally designed and driven to remove the rights of same-sex couples by excluding them from state sanctioned civil ceremonies on the basis that it mimics marriage. Today as an Independent member of parliament, I declare that I do not support such laws and agree with the growing global view that we should be moving towards marriage equality. I believe that as politicians we must avoid discrimination on the basis of people's sexuality, irrespective of people being lesbian, gay, bisexual, transgender or intersex—LGBTI. His Honour Michael Kirby, a former High Court judge, law reformer and now human rights campaigner, has spoken against such discrimination, and medical evidence confirms that this type of discrimination is contributing towards a culture of oppression that inflicts serious health and social harm on people. Sadly, a recent research project undertaken by Dr Tiffany Jones, a University of New England School of Education lecturer, found that Queensland has the most homophobic schools in the country, with more than 80 per cent of gay and lesbian students reporting bullying—something that the responsible minister and the rest of us as politicians should be committed to addressing. It is our role to lead the way in order to right such social wrongs and address any harm being caused to people simply because of their sexuality. I do not believe being part of the LGBTI community is synonymous with being lesser or unworthy of equality in society. Accordingly, I pledge from this day forward to prevent LGBTI rights from being stolen, including if or when a discriminatory surrogacy bill is introduced, as proposed last year, by the Attorney-General for the Newman government.

The Australian adoption apology

Here is the apology for forced adoptions by the Prime Minister Julia Gillard:

Today, this Parliament, on behalf of the Australian people, takes responsibility and apologises for the policies and practices that forced the separation of mothers from their babies, which created a lifelong legacy of pain and suffering.

2. We acknowledge the profound effects of these policies and practices on fathers.

3. And we recognise the hurt these actions caused to brothers and sisters, grandparents, partners and extended family members.

4. We deplore the shameful practices that denied you, the mothers, your fundamental rights and responsibilities to love and care for your children. You were not legally or socially acknowledged as their mothers. And you were yourselves deprived of care and support.

5. To you, the mothers who were betrayed by a system that gave you no choice and subjected you to manipulation, mistreatment and malpractice, we apologise.

6. We say sorry to you, the mothers who were denied knowledge of your rights, which meant you could not provide informed consent. You were given false assurances. You were forced to endure the coercion and brutality of practices that were unethical, dishonest and in many cases illegal.

7. We know you have suffered enduring effects from these practices forced upon you by others. For the loss, the grief, the disempowerment, the stigmatisation and the guilt, we say sorry.

8. To each of you who were adopted or removed, who were led to believe your mother had rejected you and who were denied the opportunity to grow up with your family and community of origin and to connect with your culture, we say sorry.

9. We apologise to the sons and daughters who grew up not knowing how much you were wanted and loved.

10. We acknowledge that many of you still experience a constant struggle with identity, uncertainty and loss, and feel a persistent tension between loyalty to one family and yearning for another.

11. To you, the fathers, who were excluded from the lives of your children and deprived of the dignity of recognition on your children’s birth records, we say sorry. We acknowledge your loss and grief.

12. We recognise that the consequences of forced adoption practices continue to resonate through many, many lives. To you, the siblings, grandparents, partners and other family members who have shared in the pain and suffering of your loved ones or who were unable to share their lives, we say sorry.
13. Many are still grieving. Some families will be lost to one another forever. To those of you who face the difficulties of reconnecting with family and establishing on-going relationships, we say sorry.

14. We offer this apology in the hope that it will assist your healing and in order to shine a light on a dark period of our nation’s history.

15. To those who have fought for the truth to be heard, we hear you now. We acknowledge that many of you have suffered in silence for far too long.

16. We are saddened that many others are no longer here to share this moment.  In particular, we remember those affected by these practices who took their own lives. Our profound sympathies go to their families. 

17. To redress the shameful mistakes of the past, we are committed to ensuring that all those affected get the help they need, including access to specialist counselling services and support, the ability to find the truth in freely available records and assistance in reconnecting with lost family.

18. We resolve, as a nation, to do all in our power to make sure these practices are never repeated. In facing future challenges, we will remember the lessons of family separation. Our focus will be on protecting the fundamental rights of children and on the importance of the child’s right to know and be cared for by his or her parents.

19. With profound sadness and remorse, we offer you all our unreserved apology.

This Apology is extended in good faith and deep humility.

It will be a profound act of moral insight by a nation searching its conscience.

It will stand in the name of all Australians as a sign of our willingness to right an old wrong and face a hard truth.

As Australians, we are used to celebrating past glories and triumphs, and so we should.

We are a great nation.

But we must also be a good nation.

Therefore we must face the negative features of our past without hesitation or reserve.

That is why the period since 2008 has been so distinctive – because it has been a moment of healing and accountability in the life of our nation.

For a country, just as for a person, it takes a lot of courage to say we are sorry.

We don’t like to admit we were mistaken or misguided.

Yet this is part of the process of a nation growing up:

Holding the mirror to ourselves and our past, and not flinching from what we see.

What we see in that mirror is deeply shameful and distressing.

A story of suffering and unbearable loss.

But ultimately a story of strength, as those affected by forced adoptions found their voice.

Organised and shared their experiences.

And, by speaking truth to power, brought about the Apology we offer today.

This story had its beginnings in a wrongful belief that women could be separated from their babies and it would all be for the best.

Instead these churches and charities, families, medical staff and bureaucrats struck at the most primal and sacred bond there is:

  • the bond between a mother and her baby.

Those affected by forced adoption came from all walks of life.

From the city or the country.

People who were born here or migrated here and people who are Indigenous Australians.

From different faiths and social classes.

For the most part, the women who lost their babies were young and vulnerable.

They were often pressurised and sometimes even drugged.

They faced so many voices telling them to surrender, even though their own lonely voice shouted from the depths of their being to hold on to the new life they had created.

Too often they did not see their baby’s face.

They couldn’t sooth his first cries.

Never felt her warmth or smelt her skin.

They could not give their own baby a name.

Those babies grew up with other names and in other homes.

Creating a sense of abandonment and loss that sometimes could never be made whole.

Today we will hear the motion moved in the Parliament and many other words spoken by those of us who lead.

But today we also listen to the words and stories of those who have waited so long to be heard.

Like the members of the Reference Group personally affected by forced adoption who I met earlier today.

Lizzy Brew, Katherine Rendell and Christine Cole told me how their children were wrenched away so soon after birth.

How they were denied basic support and advice.

How the removal of their children led to a lifetime of anguish and pain.
Their experiences echo the stories told in the Senate report.

Stories that speak to us with startling power and moral force.

Like Linda Bryant who testified of the devastating moment her baby was taken away:

When I had my child she was removed. All I saw was the top of her head – I knew she had black hair.

So often that brief glimpse was the final time those mothers would ever see their child.

In institutions around Australia, women were made to perform menial labour in kitchens and laundries until their baby arrived.

As Margaret Bishop said:

It felt like a kind of penance.

In recent years, I have occasionally passed what then was the Medindi Maternity Hospital and it generates a deep sadness in me and an odd feeling that it was a Dickensian tale about somebody else.

Margaret McGrath described being confined within the Holy Cross home where life was ‘harsh, punitive and impersonal’.

Yet this was sunny postwar Australia when we were going to the beach and driving our new Holdens and listening to Johnny O’Keefe.

As the time for birth came, their babies would be snatched away before they had even held them in their arms.

Sometimes consent was achieved by forgery or fraud.

Sometimes women signed adoption papers while under the influence of medication.

Most common of all was the bullying arrogance of a society that presumed to know what was best.

Margaret Nonas was told she was selfish.

Linda Ngata was told she was too young and would be a bad mother.

Some mothers returned home to be ostracised and judged.

And despite all the coercion, many mothers were haunted by guilt for having ‘given away’ their child.

Guilt because, in the words of Louise Greenup, they did not ‘buck the system or fight’.

The hurt did not simply last for a few days or weeks.

This was a wound that would not heal.  

Kim Lawrence told the Senate Committee:

The pain never goes away, that we all gave away our babies.  We were told to forget what had happened, but we cannot. It will be with us all our lives.

Carolyn Brown never forgot her son:

I was always looking and wondering if he was alive or dead.  …

From then on every time I saw a baby, a little boy and even a grown up in the street, I would look to see if I could recognise him.

For decades, young mothers grew old haunted by loss.

Silently grieving in our suburbs and towns.

And somewhere, perhaps even close by, their children grew up denied the bond that was their birth-right.

Instead they lived with self-doubt and an uncertain identity.

The feeling, as one child of forced adoption put it, ‘that part of me is missing’.

Some suffered sexual abuse at the hands of their adoptive parents or in state institutions.

Many more endured the cruelty that only children can inflict on their peers:

Your mum’s not your real mum, your real mum didn’t
want you.

Your parents aren’t your real parents, they don’t love you.

Taunts vividly remembered decades later.

For so many children of forced adoption, the scars remain in adult life.

Phil Evans described his life as a:

rollercoaster ride of emotional trauma; indescribable fear; uncertainty; anxiety and self-sabotage in so many ways.

Many others identified the paralysing effect of self-doubt and a fear of abandonment:

It has held me back, stopped me growing and ensured that I have lived a life frozen.

I heard similar stories of disconnection and loss from Leigh Hubbard and Paul Howes today.

The challenges of reconnecting with family.

The struggles with self-identity and self-esteem.

The difficulties with accessing records.

Challenges that even the highest levels of professional success have not been able to assuage or heal.

Neither should we forget the fathers, brothers and sisters, grandparents and other relatives who were also affected as the impact of forced adoption cascaded through each family.

Gary Coles, a father, told me today of the lack of acknowledgment that many fathers have experienced.

How often fathers were ignored at the time of the birth.

How their names were not included on birth certificates.

How the veil of shame and forgetting was cast over their lives too.

My fellow Australians,

No collection of words alone can undo all this damage.

Or make whole the lives and families fractured by forced adoption.

Or give back childhoods that were robbed of joy and laughter.

Or make amends for the Birthdays and Christmases and Mother’s or Father’s Days that only brought a fresh wave of grief and loss.

But by saying sorry we can correct the historical record.

We can declare that these mothers did nothing wrong.

That you loved your children and you always will.

And to the children of forced adoption, we can say that you deserved so much better.

You deserved the chance to know, and love, your mother and father. 

We can promise you all that no generation of Australians will suffer the same pain and trauma that you did.

The cruel, immoral practice of forced adoption will have no place in this land any more.

We also pledge resources to match today’s words with actions.

We will provide $5 million to improve access to specialist support and records tracing for those affected by forced adoptions.

And we will work with the states and territories to improve these services.

The Government will also deliver $5 million so that mental health professionals can better assist in caring for those affected by forced adoption.

We will also provide $1.5 million for the National Archives to record the experiences of those affected by forced adoption through a special exhibition.

That way, this chapter in our nation’s history will never again be marginalised or forgotten again.

Today’s historic moment has only been made possible by the bravery of those who came forward to make submissions to the Senate Committee and also of those who couldn’t come forward but who nurtured hope silently in their hearts.

Because of your courage, Australia now knows the truth.

The report prepared so brilliantly by Senator Siewert and the Senate Committee records that truth for all to see.

This was further reinforced by the national consultations that Professor Nahum Mushin and his reference group undertook to draft the national apology.

Their guidance and advice to government on the drafting of the apology have been invaluable.

Any Australian who reads the Senate report or listens to your stories as I have today will be appalled by what was done to you.

They will be shocked by your suffering.

They will be saddened by your loss.

But most of all, they will marvel at your determination to fight for the respect of history.

They will draw strength from your example.

And they will be inspired by the generous spirit in which you receive this Apology.

Because saying ‘Sorry’ is only ever complete when those who are wronged accept it.

Through your courage and grace, the time of neglect is over, and the work of healing can begin.

Attorney-General talks about adoption apology and LGBTIQ anti-discrimination laws

Attorney-General Mark Dreyfus talks to Fairfax Media about the adoption apology and the proposed LGBTIQ anti-discrimination laws:

Wednesday, March 13, 2013

Australian Government's surrogacy letter for India

I have at long last scored a copy of the letter that the Australian government sends out for those seeking to undertake surrogacy in India, in accordance with the policy of the Indian government requiring such a letter. Here it is:

Australian High Commission

New Delhi

12 March 2013




This letter has been provided in response to Indian Medical visa requirements as outlined on the Indian High commission website.

In Australia, the legal transfer of parentage following surrogacy arrangements is the responsibility of state and territory governments.  Most states and territories in Australia have legislated to regulate surrogacy arrangements in Australia and have provided for transfer of the legal parentage of children where the surrogacy arrangement meets the requirements set out in legislation.  We note that New South Wales, the Australian Capital Territory and Queensland have legislation making it an offence for their residents to enter into overseas commercial surrogacy arrangements.

To bring a child to Australia to live, the intended parent(s) of the child will need to apply for either Australian citizenship by descent or a permanent visa for the child.  Where a child becomes an Australian citizen by descent, the intended parents will also need to apply for an Australian passport for the child.

Before a visa can be granted or citizenship by descent registered, the person seeking the visa or citizenship must lodge a valid application and be assessed as meeting the legislative requirements under the Migration Act 1958 or the Australian Citizenship Act 2007 respectively.  A valid application for a visa or for citizenship by descent for a child can only be lodged after a child is born.

A child born from a surrogacy arrangement overseas may obtain an Australian passport if he or she meets the eligibility criteria under the Australian Passports Act 2005.


Australian High Commission

New Delhi


Wednesday, March 6, 2013

My upcoming surrogacy and family law presentations

In what must be a state of madness on my part, in two weeks I will be delivering 7 presentations in 3 States and 2 continents. I must be completely loco.

I will also be blogging each of these events separately:

Event 1: Thursday 4 April

I will be at Melbourne University, Hawthorn campus, 6pm talking about: Who's my daddy? LGBTI family law issues, for the Australian Psychological Society Family Law and Psychology Interest Group:

Event 2: Friday 5 April

At lunchtime I will be presenting to City Fertility Centre in Melbourne.
City Fertility Centre is an Australian IVF clinic that operates in Melbourne, Adelaide, Brisbane and on the Gold Coast.

Event 3: Friday 5 April

At 6pm I will be speaking at a surrogacy forum in Melbourne, along with John Weltman from Circle Surrogacy, Boston.

Event 4: Saturday 6 April

That morning I will be chairing the legal session and then moderating a panel of lawyers talking about international and Australian surrogacy at the Surrogacy Australia conference in Melbourne.

Event 5: Wednesday 10 April

At 6pm I will be speaking at a surrogacy forum in Sydney, along with John Weltman from Circle Surrogacy, Boston.

Event 6: Thursday 11 April

At 6pm I will be speaking at a surrogacy forum in Brisbane, along with Steve Snyder who chairs the American Bar Association's Assisted Reproduction Technology Committee (and from IARC surrogacy clinic, Minneapolis), Karen Boughey from Surrogacy Australia and Adnan Catakovic, Managing Director of City Fertility Centre.

Event 7 Thursday 18 April

I will be speaking at the American Bar Association family law conference in Anchorage, Alaska. I will be speaking about Australian surrogacy issues.

My orphan paper- Surrogacy Australia conference

The other day I had just finished my paper for the Surrogacy Australia conference on 6 and 7 April 2012 in Melbourne, when I was contacted by the organisors to be told that there was a grand change of plan.

No longer would I be presenting my paper about who is a parent for international surrogacy arrangements (or more properly put, Australia's bizarre schizoid view about who can be a parent- you might be for some purposes but not others), but instead I was asked to chair the legal session and to moderate a panel of lawyers discussing surrogacy. All a great honour, and I am very lucky and humbled that I was asked. But there was my orphan paper. Luckily it will still be published as part of the conference papers. I will also post it on my blog.

And who are the lawyers on the panel? They are:

  • Professor Jenni Millbank, in my view Australia's leading academic legal expert on surrogacy
  • Steve Snyder, chair of the American Bar Association's Assisted Reproduction Technology Committee, and head of IARC surrogacy in Minneapolis
  • John Weltman of Circle Surrogacy in Boston
  • Amit Karkhanis of Kay Legal from Mumbai


I am very lucky that I have had the opportunity to work with or consult with Jenni, Steve, John and Amit.

I am an associate member of the American Bar Association. Steve and John are members. Amit is an associate. I also serve as one of two international representatives on the American Bar Association's Assisted Reproduction Technology Committee.

Jenni and I are members of the International Surrogacy Forum.

ABC: Australian surrogacy babies in India might be left stateless

On Monday night ABC's Lateline broadcast a story stating that following the changes in India, children born to intended parents might be left stateless and stuck there. The story is here:

On 9 July 2012, the Indian government changed policy (not the law) and required intended parents to obtain a surrogacy visa. The problem was that it didn't let anyone know about the change until late October.

The Indian government excluded intended parents from Queensland, NSW and the ACT, and also anyone who wasn't married for 2 years. Gay and lesbian couples were excluded, as were singles and those in de facto relationships.

For those people stuck in the transition, who are deemed to be excluded by the Indian government and signed up after 9 July, but before the end of October, it is a waiting game, not knowing whether they will be able to bring their babies home.

The Australian government has been lobbying the Indian government about intended parents tuck in the transition.

The way that this has been handled by the Indian government has been harsh, cruel and has elements of menace. Intended parents (including some who are clients of mine) simply do not know whether they can get their babies out of India, and are afraid that they they will be the subject of threats from government authorities if they go there. They worry with good reason about what will happen to the children.

Those who run surrogacy clinics in India are entitled when they set up their businesses are entitled to know the rules of the road, and not have the rules reversed, and then advised months later that the rules were changed, without consultation.

So that this is clear, while the Indian government has been considering some years through ART bills as to how to regulate the industry, at no time were those bills enacted. It is extraordinary that a democracy like India has decided to go behind the rule of law and instead  adopt these policies by administrative fiat, without debate or consultation.

Furthermore, at no stage did the ART bills, which have been around in form or other since 2008 ever suggest that there ought to be discrimination based on the relationship or sexuality of the intended parents.

There is one inevitable consequence of the approach by the Indian government: while in the short term this will mean an increase in Australian intended parents undertaking altruistic surrogacy at home, especially in Queensland, New South Wales and the ACT, as well as in Thailand and the US and more exotic destinations, in the long term it will almost inevitably mean, sooner or later, that commercial surrogacy will happen in Australia.


Disgusting: surrogate offered $10k to abort

CNN has reported a gut wrenching story about the journey of a surrogate, Kelley, who discovered late in the pregnancy that the child she was carrying would be born disabled. The intended parents suggested that for $10,000 she should abort the child. The letter from their lawyer was disgusting. As CNN reported:

"You are obligated to terminate this pregnancy immediately," wrote Douglas Fishman, an attorney in West Hartford, Connecticut. "You have squandered precious time."
On March 5, Kelley would be 24 weeks pregnant, and after that, she couldn't legally abort the pregnancy, he said.
Fishman reminded Kelley that she'd signed a contract, agreeing to "abortion in case of severe fetus abnormality." The contract did not define what constituted such an abnormality.
Kelley was in breach of contract, he wrote, and if she did not abort, the parents would sue her to get back the fees they'd already paid her -- around $8,000 -- plus all of the medical expenses and legal fees.
Kelley did not abort. The whole story can be read here: