Sunday, September 1, 2013

Family Law Council surrogacy inquiry submissions- part 1

Regrettably I have not blogged anywhere near as much as I would have liked, in part because I prepared comprehensive submissions to the current inquiry being undertaken by the Family Law Council into surrogacy.

My submissions are below. I have had to write further submissions- in the next post- due to two recent cases, which I discuss in those submissions.


A Child Cannot Be Ignored: These cases will not go away.[1]

“Governments don’t play God. Governments shouldn’t tell us when to have children.”[2]

 

1. Introduction

 “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”[3]

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[4]

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”[5]

“The right of men and women of marriageable age to marry and to found a family shall be recognized.”[6]

“Every child has the right to acquire a nationality.”[7]

“It seems clear that prohibition of surrogacy does not work and in Australia, most States approach this difficult policy issue by way of regulation. Such regulation is difficult in a globalised world where travel from continent to continent is no longer difficult. Added to this, in some parts of the western world, there is wealth to the extent that funding of surrogacy (whether commercial or altruistic) is easily achieved…

Modern science and medical skill surrounding the creation of life are now well ahead of legal, social and legislative policy. In Australia the creation of effective policy will be difficult particularly on a State by State basis. These policy issues probably need to be dealt with on a national, whole of continent consistent basis, including having regard to Australia’s international treaty obligations.”[8]

“There are many and varied paths to parenthood. Where the path involves an international surrogacy  arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.”[9]

Clearly “the legislature is the most appropriate forum to address issues raised by assisted reproductive technology in a comprehensive fashion.”[10]

“It is also our job to ensure that every child's parents, and by parents I mean the people actually parenting that child on a day-to-day basis, are able to legally function as parents of that child.  That is clearly in the best interests of the child.”[11]

“Again we must call on the Legislature to sort out the parental rights and responsibilities of those involved in artificial reproduction. No matter what one thinks of artificial insemination, traditional and gestational surrogacy (in all its permutations)… courts are still going to be faced with the problem of determining lawful parentage. A child cannot be ignored. Even if all means of artificial reproduction were outlawed with draconian criminal penalties visited on the doctors and parties involved, courts will still be called upon to decide who the lawful parents  really are and who- other than the taxpayers- is obligated to provide maintenance and support for the child. These cases will not go away.”

“It is important to remember, when looking at surrogacy from a legal point of view, that each surrogacy arrangement involves real people with real emotions. Most important of all is the child, who must be assured of their safety, citizenship and identity.”[12]

“A potential way to correct these ambiguities would be to deal with the issue of surrogacy on a national, consistent basis. However the Commonwealth Government lacks the constitutional power to enact effective national legislation in this regard, so it would be necessary for the States to refer the necessary legislative powers to the Commonwealth . Absent this occurring, the best result would be if States and Territories continue to move towards a uniform position in relation to the legality of surrogacy arrangements, and the definition of ‘parent’ and ‘child’.”[13]

In the 1970’s Parliaments throughout Australia recognised that there could not be two classes of children: legitimate and illegitimate, but only one class: children. Today with the rise of children born through surrogacy, especially overseas surrogacy arrangements, we are enabling two classes of children: those whose parentage is recognised, and those whose parentage is unclear. We must do all we can as a society to enable the recognition of the parentage of those children by clear, simple, quick and cheap rules that provide adequate protection for all concerned.

In my view the terms of reference miss the point: the current rules in surrogacy in Australia do not have uniformity and are a direct cause or perceived cause as to why Australians go overseas for surrogacy. In essence the perception or reality that it is so hard to become parents through surrogacy in Australia has meant that many intended parents have chosen instead to go overseas and undertake commercial surrogacy there. Any intended parents have to walk through a legal minefield in order to achieve their goal of parenthood.

 

2. Executive summary of submissions

Index of submissions

Submission No
Page No
Summary
1.
28
DIAC determines citizenship
2
28
Rebuttable presumptions as to citizenship
3.
28
Same test, different laws
4.
28
Retrospective
5.
28
Citizenship by descent, child for all purposes
6.
29
Obtaining a passport
7.
30
Register overseas orders
8.
31
Birth certificates
9.
40
Removal internal barriers
10.
43
Uniform surrogacy laws
11.
43
Commonwealth laws
12.
48
NHMRC to advise re surrogacy
13.
48
NHMRC to allow commercial surrogacy
14.
49
Allow egg contracts overseas
15.
49
Allow egg donors to advertise
16.
49
Pay egg donors
17.
51
Allow surrogates to advertise
18.
51
Licence commercial agencies
19.
52
Remove discrimination against expats
20.
57
Timely registration of interstate orders
21.
61
Send to Family Law Courts
22.
61
Principles of uniform laws
23.
61
Use consistent terms
24.
61
Referral of powers
25.
62
Change parentage to parenting
26.
62
Remove extra-territorial surrogacy ban
27.
63
Overseas lobbying

 

1.      The process of determining citizenship of the child should remain with the Department of Immigration and Citizenship. There should not be the need to make applications to the Family Court to determine as to who is a parent, and as to whether or not the child is therefore entitled to Australian citizenship. Going to court is slow, costly, cumbersome, burdensome on taxpayers, judges and other court users, and most importantly leaves the citizenship of the child unresolved. A quick, cheap, simple and transparent administrative test is in the public interest.

 

2.      The test of determining whether a child is an Australian citizen who is a “child” of a “parent” for the purposes of the Australian Citizenship Act 2007 when a child has been born overseas and where a surrogacy arrangement or agreement has been entered into ought to include:

 

a.       A rebuttable presumption that the “parent” is any intended parent named in a written surrogacy arrangement or agreement;

 

b.      A rebuttable presumption that a court order granting the person parental responsibility however defined means that that person is a “parent”;

 

c.       A rebuttable presumption that if a person is named under a legal, administrative or judicial process of an overseas jurisdiction (such as a court order or birth certificate) as a “parent” then that person is a “parent”; 

 

d.      The person is genetically a “parent” of the child; or

 

e.       The spouse of a person is a “parent” of the child.

 

3.      The same test be applied under the Family Law Act 1975 and for other Commonwealth legislation, such as the Child Support (Assessment) Act 1989 and the Australian Passports Act 2005.

 

4.      This change ought to be retrospective.

 

5.      If a person acquires Australian citizenship by descent by virtue of section 16(2)(a) of the Australian Citizenship Act 2007, then the person is presumed to be the “child” for all purposes (Commonwealth, State and Territory) of the “parent”.

 

6.      To obtain an Australian passport for a child born overseas where a surrogacy arrangement or agreement has been entered into, the following test should apply:

 

a.       There can be more than two “parents” of the child;

 

b.      The consent of all of those who have parental responsibility for the child is required before a passport will issue for the child, subject to the ability to dispense with that consent, and subject to an order of an Australian court as currently provided in the Australian Passports Act 2005 (Cth); s.11;

 

c.       If a court order of another country terminates the parental rights of a person, that person will not be recognised as having parental responsibility for the child for the purposes of the Australian Passports Act 2005 (Cth);

 

d.      If what appears in the opinion of the delegate to be a binding agreement has been entered into that terminates the parental rights of a person in accordance with foreign law, that person will  not be recognised as having parental responsibility for the child for the purposes of the Australian Passports Act 2005 (Cth);

 

e.       There be Regulations stating in what jurisdictions surrogacy agreements may be considered binding on this point; and

 

f.       If a child has previously had an Australian passport issue, the people deemed to have parental responsibility for the child shall be no greater than the people who had parental responsibility the previous time a passport issued for the child.

 

7.      Any administrative barriers that exist to prevent the registration of overseas custody orders under the Family Law Act, such as those made in the United States should be removed.

 

8.      The Commonwealth immediately prescribe jurisdictions under the Family Law Regulations for the recognition of overseas birth certificates.

 

9.      Internal barriers to surrogacy ought to be removed:

 

a.       The Commonwealth ought to persuade WA, SA and the ACT to legislate, failing which it should legislate itself to remove discrimination against intended parents based on their sexuality or relationship status where such barriers currently exist;

 

b.      The Commonwealth ought to persuade Tasmania to legislate, failing which should legislate itself to remove discrimination against intended surrogates and their partners based on their location;

 

c.       The Commonwealth ought to persuade each of the States and the ACT, failing which it should legislate itself, that intended parents have freedom of choice as to which clinic and court they access in Australia, and therefore they need not reside in a particular jurisdiction or access doctors in that jurisdiction to be able to access surrogacy;

 

d.      The Commonwealth ought to persuade each of the States to legislate to remove any requirement by clinics requiring the surrogates and intended parents to have known each other for one year or more.

 

10.  It is recommended that the Commonwealth press for uniform surrogacy laws, if as to altruistic surrogacy to be on the Queensland model and related matters, such as alteration of birth records for children born via surrogacy.

 

11.  Preferably the Commonwealth will seek to either have a referral of power, or seek to legislate using its legislative powers to enable uniform national laws as to surrogacy, and related matters, such as alteration of birth records for children born via surrogacy.

12.   Amend the NHMRC Ethical Guidelines to allow for Australian doctors to advise that they provide surrogacy services.

 

13.  If there are to be laws allowing commercial surrogacy, amend the NHMRC Ethical Guidelines, to enable Australian doctors to engage in commercial surrogacy.

 

14.  The Commonwealth should legislate to ensure that there is not an unintended extra-territorial effect of offences relating to the commercial trade in eggs, so that if the offences remain, they only apply to offences committed wholly in Australia.

 

15.   Egg donors and intended recipients ought to be able to advertise to seek eggs or egg donors.

 

16.  Egg donors ought to be able to be paid for their services.

 

17.  There ought to be the ability of intended parents and intended surrogates to advertise. The Commonwealth can easily legislate to allow such advertising on the internet.

 

18.  If there is to be commercial surrogacy in Australia, there ought to be commercial agencies which are properly licenced, in accordance with standards set by an industry body, such as the Fertility Society of Australia, failing which legislated by national standards.

 

19.  Expatriate Australian citizens as intended parents should be able to access Australian surrogacy arrangements without penalty. The Commonwealth should persuade the States and the ACT on point, failing which the Commonwealth should legislate.

 

20.  The Commonwealth ought to work with the States to remove any practical barriers that prevent the timely recognition of alteration of birth registers of children following the making of parentage orders.

 

21.  Uniform surrogacy laws should include the referral of surrogacy matters to the Family Court and the Federal Circuit Court of Australia.

 

22.  The principles of those laws should be:

 

a.       Children are born equal;

 

b.      The recognition that Australian intended parents have the right to choose as to how to form a family, subject to certain limitations, such as a minimum age;

 

c.       The laws should be non-discriminatory, in particular those who are single or living in same sex relationships, expatriate Australian citizens or those who move between States should not be discriminated against;

 

d.      The parentage of children needs to be recognised;

 

e.       A process is legalised and regulated to ensure that children, intended parents, surrogates, their partners, donors and their partners are adequately protected and not subject to exploitation;

 

f.       To ensure that children are aware of their genetic history.

23. If national legislation is not pursued, the Commonwealth should lead the states to have nationally consistent terms used in surrogacy legislation, consistent with international norms.

24. “Parentage” orders should be renamed “parenting” orders, in accordance with the scheme of the Family Law Act.

25. The Commonwealth should legislate to remove the extra-territoriality of laws banning commercial surrogacy.

26.       The Commonwealth should legislate for Australia to encourage overseas jurisdictions to ensure that appropriate standards are met for commercial surrogacy including:

a.       To ensure that IVF clinics and surrogacy agencies are licensed so that they meet quality standards similar to those of the Fertility Society of Australia or other like organisations, such as the American Society of Reproductive Medicine;

 

b.      To ensure that children, intended parents, surrogates, their partners, donors, and their partners are not exploited;

 

c.       To encourage the ability of intended parents, the children and the surrogates to have long term relationships, with the aim of ensuring that the child knows where they came from;

 

d.      To ensure that children are aware of their genetic history.

 

 

3. Who am I?

I was admitted as a solicitor in Queensland in 1987. I am a partner of Harrington Family Lawyers, a long established boutique family law practice in Brisbane.  I have practised solely or predominantly since in family law since 1985 (when I commenced articles of clerkship). I have been an accredited family law specialist since 1996. My first surrogacy case was in 1988 ( a traditional, commercial surrogacy, in which the surrogate was paid $10,000 by the intended parents to have a child, and then decided to keep both the child and the money, safe in the knowledge that the transaction was illegal in Queensland).

I undertake more surrogacy work than any other lawyer in the country. My clients come from throughout Australia and overseas. I have advised intended parents, surrogates and their partners and donors. My clients are self referred or referred from other lawyers, doctors or community organisations. I have been described as:

“the preeminent authority on surrogacy in Australia”[14]and “the go to guy on surrogacy in Australia.”[15]

Since 1992 I have acted for LGBTI clients as part of my family law practice. This inevitably led to giving clients advice about ART and conception issues, which in turn led to my advising about surrogacy work.

I am a member of various legal and family law associations including:

·         Queensland Law Society

·         Family Law Practitioners Association of Queensland

·         Family Law Section of the Law Council of Australia

·         Association of Family and Conciliation Courts

·         International Surrogacy Forum

·         American Bar Association (Associate)

·         Fertility Society of Australia

I am one of two international representatives of the American Bar Association’s Assisted Reproductive Technology Committee. In my role with that committee, I have been delegated the task of overseeing the committee’s drafting of a recommended position to the American Bar Association’s House of Delegates as to the form of a proposed Hague Convention on international surrogacy.

I am a volunteer at the LGBTI Legal Service in Brisbane.

I am the convenor of Queenslanders for Equality.

I am an independent children’s lawyer. I was the co-author and principal researcher[16] of an article for lawyers about a State by State Guide to Australia’s surrogacy laws.

The opinions I hold are my own, and not those of my firm nor of any of the associations of which I hold membership.

As well as acting for many heterosexual clients, I have acted for gay, lesbian, bisexual and transgender clients in parenting matters in the family law courts. I have also appeared in one such matter as the independent children’s lawyer.[17]

Contrary to perceptions that most intended parents under surrogacy arrangements are gay, most of my surrogacy clients who are intended parents are married or heterosexual de facto couples. However, my clients who are intended parents through surrogacy have included gay and lesbian couples, and single men and women.

I have acted for surrogates and their partners. Typically they are heterosexual married couples. However I have acted in cases where the surrogates have been single or living in de facto relationships.

Some of my clients have contemplated altruistic surrogacy in:

·         Queensland

·         New South Wales

·         Australian Capital Territory

·         Northern Territory

·         South Australia

·         Western Australia

·         Northern Territory

·         Belgium

·         India

·         South Africa

·         United Kingdom

Some of my clients have contemplated or undertaken commercial surrogacy in:

·         Republic of Georgia

·         India

·         Malaysia

·         Russia

·         Thailand

·         Ukraine

·         United States (Arizona, California, Florida, Hawaii, Idaho, Illinois, Maryland, Massachusetts, Minnesota and Ohio)

I have advised clients from these jurisdictions about Australia’s surrogacy laws (typically one or both of the parties was an expatriate Australian citizen):

·         Belgium

·         China

·         France

·         Hong Kong

·         Indonesia

·         Japan

·         Malaysia

·         Singapore

·         United Kingdom

·         United States

I have advised clients who have undertaken or contemplated donor arrangements in:

·         Queensland

·         New South Wales

·         Australian Capital Territory

·         India

·         Thailand

·         United States (California, Massachusetts, Minnesota)

In an average week I would see 2 or 3 couples contemplating surrogacy, either within Australia or overseas.

4. Language

Term
Definition
Altruistic surrogacy
The process of non-commercial surrogacy. It may involve payment to the surrogate for her expenses. It is regulated in different ways by the States and the ACT.
Assisted reproduction technology
Various forms of technology that enable the conception of children, including by IVF. Also called artificial reproductive technology. Commonly called ART.
Commercial surrogacy
Paying a fee to a surrogate to have a baby. It is an offence to do so in 7 out of 8 of Australia’s jurisdictions. It is an offence to do so overseas in 3 out of 8 of Australia’s jurisdictions.
Gestational surrogacy
Where the baby, not genetically that of the surrogate, is gestated by the surrogate. Often overseas the surrogate in these circumstances is called the gestational carrier.
Intended parents
The people who want to raise the child as their own. I have used the internationally used term. They may or may not have a genetic relationship with the child.
Surrogate
The woman who has the baby for the intended parents. I have used the internally recognised term. Often called birth mother in Australian legislation. Also called surrogate mother.
Surrogacy
The process by which a woman has a baby for the intended parents then hands over the baby to them as their baby.
Traditional surrogacy
Where the surrogate is genetically the mother.

 

Therefore it is possible to have:

·         Altruistic, gestational surrogacy (the common model)

·         Altruistic, traditional surrogacy

·         Commercial, gestational surrogacy (the common model)

·         Commercial, traditional surrogacy

 

Parentage orders are obtained under State and ACT legislation concerning surrogacy, although called substitute parentage orders in the ACT, whereas parenting orders are obtained under Part VII of the Family Law Act 1975. For intended parents, being advised that a risk of proceeding with altruistic surrogacy is the inability to obtain a parentage order (from a State court), requiring the need to obtain a parenting order (from the Family or Federal Magistrates Courts) is highly confusing.

5. Biology 101: when not if

To make a baby, three elements are required:

·         An egg

·         Sperm

·         A mother to carry the child to term

Surrogacy has changed the equation about who can or cannot be a parent. Childless couples need no longer worry about if they can become parents. With surrogacy, provided that intended parents are patient and have sufficient resources, it is now a question of when they become parents.

6. Who wants to be a parent?

Seemingly everybody! Many of us have an innate desire to be parents. This desire is common, regardless of sexuality or relationship status. Therefore the range of people who want to have children, but cannot by traditional means, traverses the spectrum:

  • Married couples
  • Heterosexual de facto couples
  • Single men and women
  • Gay and lesbian couples
  • Those in a de facto relationship where one of the parties is transgendered, or in the process of transitioning.

Single men and gay couples evidently cannot produce the egg or the mother, and for them surrogacy is in reality their only option to achieving parenthood.

For heterosexual couples, if there is an issue about the sperm quality, then it is relatively easy to access sperm either anonymously through a clinic, or with potential complications from a known sperm donor.

Until about a year ago if there were a need for an egg donor, it was almost impossible to obtain an egg from a donor. Australia had an appalling record of childless couples having to wait for 2 to 7 years. Part of this delay was because of the policy prescription that egg donors cannot be paid, other than “reasonable” expenses[18].

Instead childless women or heterosexual couples either accessed commercial egg donors in the US, for about $40-60,000 for the entire transaction, or other cheaper overseas jurisdictions[19], or gave up. Those accessing commercial egg donors overseas may or may not be committing serious offences in Australia, depending on the jurisdiction and the manner in which they undertake the process.

In the last year the landscape has changed, with the rise of websites enabling women to donate eggs. It is now possible to choose a prospective egg donor within about 6 to 8 weeks.

However, if the ability to carry the child to term safely or at all were the issue, then for heterosexual couples the only option available is surrogacy.

For single women seeking to be parents, and unable to fall pregnant, if an egg donor were not the solution, then surrogacy is the last resort.

One might think that lesbian couples might never need surrogacy. However, as fate intervenes and prevents both women carrying a child to term, surrogacy is the last resort to enable parenthood to succeed.

Therefore to achieve parentage:

·         Married or heterosexual de facto couples if unable to conceive naturally may need a sperm donor, an egg donor, or a surrogate, or all of these.

·         Single women if unable to conceive naturally will need a sperm donor and may need an egg donor and a surrogate.

·         Single men will need an egg donor and a surrogate (and may need a sperm donor).

·         A gay couple will need an egg donor and a surrogate (and against the odds may need a sperm donor);

·         A lesbian couple will need a sperm donor (and against the odds might need a surrogate and an egg donor).

7. Who wants to be a surrogate?

Having acted for surrogates and prospective surrogates, and talked to fellow surrogacy lawyers in the US, and surrogacy agency owners in the US, there are some common features about the typical woman who wants to be a surrogate:

·         She has typically had all of her own children and does not want to have any more[20].

·         She may or may not be married, have a partner or be single[21].

·         She likes being pregnant. For her pregnancy is a dream. Women who have troublesome pregnancies rarely step forward to be surrogates.

·         Childbirth for her is straightforward. Women are much more likely to be surrogates if they have a 2 hour labour than a 24 hour labour!

·         Above all for her getting pregnant and having children is a breeze, but she can see how hard it is for others, and she wants to help them achieve the dream of parenthood[22].

As Dr Kim Bergman[23] told a surrogacy forum last year[24] , surrogates have a healthy blend of altruism and narcissism: they are putting their lives potentially at risk out of an extraordinary act of generosity to others, but they are aware that they are special for doing so. It is an extraordinary woman who wishes to be a surrogate, if for no other reason because of the inherent risks involved with pregnancy and childbirth.

The clear message I have received from numerous surrogacy practitioners in the US is that the payment of money is not the primary motivating factor for surrogates. The other factor, of that extraordinary human spirit, is the prime driver. And nor would one expect the money factor to be the primary driver, when surrogates in the US are paid anywhere from US$15-30,000, depending on various factors including the jurisdiction, agency, risk and experience. The typical surrogate in the US is not on welfare.

I have seen the same extraordinary human spirit and generosity of surrogates in Australia, whether or not the surrogate had a pre-existing relationship with the intended parents.

My experience with altruistic surrogacy arrangements, where the surrogate is a friend or family member, is that the surrogate in all cases volunteered to be a surrogate. In only one case was she approached by the intended parents to be a surrogate. Typically it was an offer made out of the blue. In three cases it has been the mother being the surrogate for her daughter and son in law. Each of the mothers in those arrangements were aged in their late 40’s to 50. However, there is the potential for undue influence to occur between friends and family.

Professor Peter Illingsworth[25] told a public forum last year[26] in Sydney, that there are clear benefits in there being commercial surrogacy arrangements, to reduce the chances of exploitation, and to increase the screening of surrogates. A weakness with the current processes in Australia is that it relies upon the intended parents to screen the surrogates.

8. Link between the surrogate and the baby

Becoming a surrogate is not a 9-5, Monday to Friday job. It is literally a labour of love, in which for 9 months the surrogate’s body changes until she gives birth. The risk to the surrogate is that she could die, or suffer from permanent disabilities, such as:

·         Loss of fertility

·         Post-natal depression

·         Back injury

·         Hypertension

Doctors have advised that research shows that when babies are conceived through IVF (as almost all surrogacy babies would be), there is a higher risk of miscarriage and twinning than with children who are conceived naturally. Surrogates take on this risk. 

Example
Fred and Ginger have been unsuccessful in having children. Their friend, Dorothy, offers to have a baby for them. It is a traditional surrogacy. There is no history of twins in Fred’s family or Dorothy’s family. Dorothy has had four previous pregnancies. All four pregnancies have been fine, the children being born naturally and healthy.
Following implantation of one embryo, comprised of Fred’s sperm and Dorothy’s egg, the cell divides, resulting in the conception of identical twins. Dorothy then endures a difficult pregnancy and a very difficult childbirth.

It is the view of IVF clinics and counsellors that, in general, traditional surrogacy should be avoided, because of the obvious bond between the surrogate and the child, which increases the risk that the surrogate does not relinquish the child[27]. However, traditional surrogacy can work in appropriate cases. The difficulty with proscriptive rules is that they can have unintended consequences. As the learned American authors Kindregan and McBrien state:

“Many [US] states are hesitant to enact legislation because given the advances in reproductive science, there will always be a factual exception to the rule, making it more appropriate for the courts to address each scenario on a case-by-case basis.”[28]

Gestational surrogacy is the preferred model, as it lowers the risk of relinquishment, especially when there is the inability in Australia to have binding contracts.

It has been my experience in acting for surrogates that while there is a bond that develops between a surrogate and the baby, when there is no genetic, family or pre-existing close connection between the surrogate and the intended parents, the view of the surrogate is to have an ongoing connection with the baby, but:

“I was happy handing the baby over. After all, she’s not my baby. She’s their baby.”[29]

It is not my view that traditional surrogacy should be banned, as has happened in Victoria[30], for example. There will be cases where traditional surrogacy will be appropriate. These cases should be managed carefully, through the usual measures:

·         Thorough counselling

·         Thorough legal advice

·         Carefully assessing the risks through the IVF clinic’s ethics committee about whether or not the clinic will undertake the work, and if so under what conditions.

As demonstrated in Re Evelyn[31], given the ability to become pregnant at home via artificial insemination, without the involvement of clinics, traditional surrogacy will continue.

 

Example
Rachel is friends with a gay couple, Michael and Jarrod. Michael and Jarrod are keen to have children. Rachel offers to have a child by traditional surrogacy, via home insemination. Rachel is the genetic mother, and Michael the genetic father.
Twins are conceived and born. They are considered Michael and Jarrod’s children. Rachel has an ongoing, happy relationship with the children and Michael and Jarrod. Conception is achieved via home insemination. No parentage order is obtained. No order is obtained under the Family Law Act. The parents shown on the birth certificate are Rachel and Michael. It is not possible to name Jarrod on the birth certificates as a parent without there being a parentage order, as Queensland, in common with all the States (and contrary to some recent developments in parts of the US), does not allow three parents to be named.
 

 

Re Evelyn[32]- the nightmare case
Mr and Mrs Q were a childless couple living in Queensland. Dr and Mrs S were friends of theirs, living in South Australia. As is typical with an altruistic surrogacy arrangement, Mrs S offered to Mr and Mrs Q to be a surrogate. At the time, altruistic surrogacy was illegal in both Queensland and South Australia.
It would appear that neither Mr and Mrs Q or Dr and Mrs S had counselling or legal advice before embarking on the surrogacy journey.
It was a traditional surrogacy: Mr Q’s sperm and Mrs S’s egg. Following the birth of the child, and the handing over of the child to Mr and Mrs S, about 3 weeks after the child’s birth Dr and Mrs S went to visit the Q’s. Dr and Mrs S then took the baby, Evelyn. They had the right to do so- they were, then and now, under the law that is common throughout Australia, the parents of the child.
The matter was litigated bitterly in the Family Court. In today’s money it is fair to estimate given the intensity of the litigation that each of the Q’s and the S’s would have spent well in excess of $100,000, may be as much as $300,000.
Evelyn was ordered to live with the S’s. Almost certainly there would have been an extraordinary lasting bitterness in the litigation- for both the S’s and the Q’s. It was a dramatic demonstration of how not to undertake surrogacy.

 

 

Example[33]
Bentley and Matt Harris are a gay couple. They agreed with their married friend “Rosie” to undertake a traditional surrogacy. At the time, altruistic surrogacy was illegal in Queensland. They undertook counselling. However, no legal advice was obtained.
After the pregnancy commenced, a surrogacy arrangement was signed. The child Connor was born just before the Surrogacy Act 2010 (Qld) commenced.
An independent assessment determined that the making of a parentage order was in the best interests and for the wellbeing of Connor.
A parentage order was made. Bentley and Matt achieved history, becoming the first intended parents in Queensland to obtain a parentage order. Subsequently, as reported by the Courier-Mail, “Rosie” regretted handing over her child.

 

9. Who’s your daddy? Children born overseas

I agree with this statement by the Chief Federal Magistrate:

“The state-based regimes for transfer of parentage cannot be accessed if

the child is born overseas through a commercial surrogacy arrangement.”

However, I disagree strongly with these comments by his Honour:

“The result of this is that many Australian couples have been left “stranded” overseas after having a child through a surrogate mother, as they are unable to apply for citizenship for the child under the Australian Citizenship Act, due to the ambiguities about the definition of ‘parent and child’. The intended parents in such a situation would therefore be in breach of the Hague Convention on Inter-Country Adoption if they attempted to bring the child back into Australia.”

This is the minefield that Australian intended parents negotiate when they undertake surrogacy overseas. The reality is that Australian intended parents are able to bring their babies to Australia.

9.1 Australia has a schizoid way of saying who is a “parent”.

In essence, there are three ways to say who is a “parent”:

·         Birth

·         Genetics

·         Intent

Australia, confusingly, has chosen all three! It has done so this way:

           Under the Status of Children legislation in each State and Territory, adopted by the           Family Law Act, the approach has been that of defining by birth. That definition in turn has in part made its way to the Australian Citizenship Act . This has been the      approach taken in most Family Court cases concerning overseas surrogacy.

           The approach of the Department of Immigration and Citizenship, which has largely           relied on genetics.

           The approach of two recent court decisions, which have relied on intent, and the   reality of who was parenting the child concerned.

Therefore, a person might be recognised as a parent of a child for the purposes of citizenship, but because that person was not the birth parent of the child or married to or a partner of a birth parent of the child, is not a parent for State law purposes, and may not be a parent under the Family Law Act;

It is obvious that there may be a difference between a parent as a matter of law and a parent as a matter of genetics.  If a “child” is born to an Australian citizen who is a “parent” then by virtue of the Australian Citizenship Act 1997, the child is taken to have acquired Australian citizenship by descent.  If a child is born overseas where the child has been conceived naturally, there is no question who is the parent and who is the child.  Genetics apply.

The difficulty with surrogacy is that sexual intercourse does not lead to the conception of the child.  Instead:

Sperm from a man (who may be the intended father or may be a sperm donor) and

·       An egg from a woman (who may be the intended mother, a donor or, rarely a         surrogate);

 

·       Are combined in a small glass vial;

 

·      Then the resultant embryo is placed in an incubator;

 

·      Then either used fresh or frozen in liquid nitrogen;

 

·      Then either as fresh or thawed, the embryo is implanted into the body of another   woman, the surrogate, who ultimately gives birth to the child.

Who is the parent out of this arrangement?  Is it:

·      The surrogate?

 

·      Her husband or partner?  (If she has one)

 

·      The sperm donor?

 

·      The egg donor?

 

·      The intended parents?

 

·      If the intended parents are in a same sex relationship, do both of them get recognised?

 

9.2 A parent by birth

This is the standard approach taken under Status of Children legislation, and seen in a series Family Law Act cases, especially Ellison and Karnchanit [34].

To rely on legislation that did not contemplate international surrogacy arrangements, has resulted in what appears to be more and more difficult reasoning.

In Ellison and Karnchanit, for example:

           Mr Ellison, who was the genetic father of the child, and named on the Thai birth   certificate, was not recognised by that process as the father;

           He was recognised as the father following the discovery that at the time of conception      the surrogate was not in living in a de facto relationship;

           It is unclear who might have been the mother- whether it was the intended mother, Ms      Solano, the birth mother Ms Karnchanit, or the anonymous egg donor. In any event,             Ms Solano was not recognised as the mother, even though this was no doubt her and         Mr Ellison’s intent when entering into the surrogacy contract.

Three of the difficulties of defining a parent by birth (and thereby excluding the intended parents) are that:

           The person who had always intended to be parent, was the driving force to ensure the       child’s creation, and parents the child on a daily basis may never be recognised at law          as a parent (and therefore the child is never recognised at law as that person’s child,           with potential adverse impact on the child’s psycho-social development);

           The need to obtain the consent of the birth parent every time the child’s passport   needs to be renewed;

           The risk that children may unintentionally be disinherited.

 

9.3  A parent by genetics: the usual approach taken by the Department

I understand that the approach taken by the Department varies from country to country and specifically:

·         In India the approach of the Department is to insist that there is a genetic connection.

 

·         In Thailand the approach of the Department is to insist on a genetic connection.

 

·         For those intended parents going to the United States the approach appears to depend on the officer of the Department. Some are insistent on DNA testing.  Others are satisfied with the making of custody orders, consistent with H v Minister for Immigration and Citizenship (see below for discussion of this case).

The formal position of the Department is as follows[35]:

“A parent-child relationship is a question of fact to be determined by the department with regard to all the relevant circumstances.

In the majority of surrogacy arrangements, at least one of the intended parents is also a biological parent of the child. Normally, the biological parentage can be readily determined through medical records and/or DNA testing. Provided that DNA testing is carried out to approved standards the result of DNA testing is given substantial weight when determining if a person is a parent of another person.

See: Fact Sheet 23 – DNA Testing

Where there is no biological connection between an Australian citizen who is the intended parent and the child born through an international surrogacy arrangement, or where such a biological connection has not been satisfactorily established, it is necessary for an Australian citizen to provide other evidence to demonstrate that the Australian citizen was in fact the parent of the child at the time of the child's birth. The type of evidence that would support such a claim is likely to require greater scrutiny and verification than DNA evidence. Consequently, an application based on such evidence may take significantly longer to decide.

Evidence that the parent-child relationship existed at the time of the child's birth may include, but is not limited to:

       a formal surrogacy agreement entered into before the child was conceived

 

       lawful transfer of parental rights in the country in which the surrogacy was carried out to the Australian citizen before or at time of the child's birth

 

       evidence that the Australian citizen's inclusion as a parent on the birth          certificate was done with that parent's prior consent

 

       evidence that the Australian citizen was involved in providing care for the    unborn child and/or the mother during the pregnancy, for example, emotional,   domestic or financial support and making arrangements for the birth and    prenatal and postnatal care

 

       evidence that the child was acknowledged socially from or before birth as the          Australian citizen's child, for example, where the child was presented within            the Australian citizen's family and social groups as being the Australian     citizen's child.

 

       Evidence that the Australian citizen treated the child as his or her own from             some point in time after birth would not by itself be evidence that the           Australian citizen was the child's parent at time of birth, but it would lend     weight to evidence of the types previously listed.”

9.4  A parent by intent: H v. Minister for Immigration and Citizenship (2010)

The Federal Court rejected the approach taken by the Department of Immigration and Citizenship.  The Department argued that the relevant test for who is a “parent” and who is a “child” under the Australian Citizenship Act was determined by genetics or determined by the relevant definitions under the Family Law Act.

In two cases decided side by side (neither of which was a surrogacy case) the Federal Court determined that with the poor drafting of “parent” and “child” under the Australian Citizenship Act, who was the “parent” would be determined by fact in each case, but appears clear to say demonstrated intent. 

The Full Court of the Federal Court held[36] :

“Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the ‘common bond’ mentioned in the preamble.  Within this framework, there is, however, little contextual support for the proposition of the word ‘parent’ has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word.  Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community…..Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word ‘parent’ in s16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage.”

The Court went on to say[37]:

“There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of the s16(2), has the meaning it bears in ordinary contemporary English usage.  Indeed legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act.  No sound reason has been advanced to warrant a more limited reading of the word.

The word ‘parent’ is an everyday word in the English language, expressive of both the status and the relationship to another.  Today, in the Citizenship Act it self-recognizes, not all parents become parents in the same way….This is not to say that parents do not share common characteristics;  an everyday use of the word indicates that they do.

Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.  Once, in the case of an illegitimate child, biological connection was not enough;  Today, biological connection in specific incidences may not be enough………. Perhaps in a typical case, almost all the relevant considerations, whether biological, legal, or social will point to the same person as being ‘the parents’ of a person.  Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person is one’s own and treating him or her as one’s own.

The ordinary meaning of the word ‘parent’ is, however, clearly a question of fact, as is the question of whether a particular person qualifies as a parent within that ordinary meaning, implying s16(2)(a) the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent.  In deciding whether a person can be property described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parents’ conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge.  Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth.  For example, evidence that a person acknowledges the applicant as his own before and at the time of birth and, thereafter treated the applicant as his own, may justify a finding of that person as a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth…….

We can discern no relevant justification for holding…….that a person can only be a ‘parent’ within the meaning of s16(2) where it can be established that he or she has a relevant link to the applicant.  If the Minister’s arguments in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on a DNA test undertaken for other reason, that under the law he is not and never was a citizen……….As a practical matter, we do not consider that Parliament would have intended the likely unfortunately results of the Minister’s construction……….The practical effect of this construction would be to accord the science of genetics a status Parliament has not given it.”(emphasis added)

Significantly, the court found that:

·      An Australian man who met a Chinese woman on the internet when she was pregnant to a Chinese man, and agreed to marry her, have his name on the birth certificate as the father of the child and raise the child as his own, was a parent. On this point the court took a similar approach to the US Supreme Court; and

 

·      An Australian man who for 30 years had believed he was the father of a child, but was not, but had acknowledged paternity, brought the child into his family including paying child support, and he and his wife and children visited the child, was also a parent.

The significance of the case is:

o   It sets the benchmark for who is or who is not a “parent” of a child for the purposes of the Australian Citizenship Act;

 

o   It sets out clearly that proscriptive definitions of who is or who is not a parent can fail because they do not take into account unusual or unexpected cases.

In neither case was there any DNA link between the two men and their children. Neither did the Family Law Act definitions apply.

Clearly, if an intended parent enters into a surrogacy arrangement with the intention of raising a child of their own (even if they do not supply their own DNA) then they may well be a “parent” having regard to the facts of the case as decided in H.

This approach was similarly accepted in Re Blake , where the Family Court of Western Australia noted that if the birth definition of who is a parent were adopted, under that State’s Artificial Conception Act 1985 (WA),  then neither of the intended parents would be recognised as parents, but instead looked to the intention of those concerned, or as her Honour referred to it, the reality- who was parenting the children.

9.5  Why are custody orders needed in the US, sometimes in Thailand but not in India?

Each overseas country has its own procedures.  Officers of the Department of Immigration and Citizenship wish to ensure, as part of Australia’s international obligations, as Australia is a signatory to both the Hague Inter-Country Adoption Convention and the Hague Abduction Convention, that children born through surrogacy arrangements aren’t children who have been improperly abducted, sold or adopted in the overseas jurisdiction.

India is not a signatory to the Hague Abduction Convention, but Thailand and the United States are.  Because Thailand and the United States are both signatories to the Abduction Convention, the best practice is to have court orders in place to overcome issues to do with the Abduction Convention. As Ellison and Karnchanit made clear, to all intents and purposes there is not an ability to obtain an order in Thailand. Therefore intended parents were applying in the Family Court for parenting orders.

However the Department of Immigration and Citizenship has in respect of intended parents in Thailand since late 2011 not required the obtaining of court orders, but instead has interviewed the surrogate at the Embassy, to establish that she consents to the removal of the child from Thailand.

One feature of Ellison and Karnchanit is that the Australian intended parents simply did not know the marital status of the surrogate. If the surrogate had been married, her husband could quite properly make complaint to Thai authorities that his child, who was habitually resident in Thailand at the time of birth, had been removed from Thailand without his consent, prompting action under the Abduction Convention.

Example:
Bill and Joe Bloggs undertake surrogacy through the You Beauty Rippa Surrogacy Agency in Kerala which specialises in surrogacies for Australians.  The surrogate is implanted with an embryo comprised of Bill’s sperm and the egg of an anonymous Caucasian donor.  When the child is born it is clearly not Caucasian.  Despite the terms of the surrogacy agreement, the surrogate did not stop having sex with her husband.  The child was found to be genetically the child of the surrogate and her husband.
The Department  would not ordinarily consider Bill and Joe to be “parents” of the child if they are not genetically related to the child.  However despite everything that had occurred, they decided to raise the child as their own then within the meaning of H v Minister for Immigration and Citizenship, it is likely that they would be the “parents” of the “child” who would be entitled to Australian citizenship by descent.  It is unlikely that the Department would accept that the child is an Australian citizen.

 

Example:
Bruce and Matt are a gay couple who have undertaken surrogacy with the Ripsnorter Surrogacy Agency in Bangkok.  Bruce is an Australian citizen.  Matt is not.  Each supply a sample of sperm at the request of the agency, for testing purposes.  It is determined that Bruce has the best quality sperm.  He is to be the father.  The child is conceived and born.  Bruce is named on the Thai birth certificate as dad.  The application for Australian citizenship is made with Bruce as the father.  At the request of the Department the DNA test is undertaken.  This demonstrates that Bruce is not the father.  Subsequent tests determine that Matt is the father.  Under the approach taken by the Department, it is unlikely that the Department would accept the child as being an Australian citizen.  Under the test in H v Minister for Immigration and Citizenship, Bruce would be considered to be the parent of the child.

 

9.6 Comparison with the US

The three bases of determining legal parentage in the US by the courts have been on the same bases as the tests in Australia:

1.        intent

 

2.        genetics

 

3.        birth

As leading authors Kindregan and McBrien state :

“Each test provides different results.”

The general trend in the US is toward honouring the intent of the parties when they entered into a surrogacy arrangement. The leading cases on intention in the US are Californian:

·         Johnson v Calvert (1993)

 

·         Buzzanca and Buzzanca (1998)

 

Johnson v Calvert

The court ruled that the intended parents under a surrogacy arrangement, who were also the genetic parents, were the parents, despite opposition from the surrogate. The surrogate had argued that she was the mother as she had given birth. The case stands for the proposition that when genetic consanguinity and giving birth do not coincide in the one woman:

“She who intended to bring about the birth of a child that she intended to raise as her own is the natural mother.”

 

Buzzanca and Buzzanca

Mr and Mrs Buzzanca entered into a surrogacy arrangement in which both donor egg and sperm was used. There was no genetic relationship between the child and either Mr or Mrs Buzzanca or the surrogate. Mr and Mrs Buzzanca separated. Mr Buzzanca stated that as he was not genetically related to the child, he was not liable to pay child support[38].

As Mr and Mrs Buzzanca had originally intended to rear the child as their own, Mr Buzzanca was a parent.

9.7 So what if they are not parents?

It is of great surprise to intended parents to be told that although in the overseas jurisdiction they were recognised as parents, for example on the birth certificate, surrogacy contract or in the court order, that they might be recognised under the Australian Citizenship Act as parents, that the overseas birth certificate is disregarded for these purposes (such as seen in Ellison and Karnchanit), and that for parenting presumptions under State and Territory laws (with now the possible exception of Western Australia given the decision in Re Blake) they are not parents.

They wonder, quite rightly, how they could be parents for some purposes of Australian law, and not others.

Not being a “parent” generally makes little practical difference by the time intended parents seek advice, as:

o          The child is probably already an Australian citizen;

o          The child as a citizen is entitled to a Medicare card, and with the birth certificate   Centrelink benefits can be claimed, and the child can be enrolled at school;

o          Arriving at accident and emergency at 2am with the child in tow, the parents are not         going to be asked about the legality of parenthood. More likely they will be asked to fill out a form, and for Medicare and health insurance details.

The differences come later on:

·         If the intended parents separate, there may then be argument about whether or not they were a “couple”. If the court forms the view that they were not, then that may prevent the non-biological parent having a relationship with the child[39].

 

·         The theoretical difference that they are not viewed as “parents” in the eyes of the State, at least for some purposes.

 

·         Sooner or later it might be argued that child support is not payable .

·         That the child may be accidentally disinherited, due to a lack of a (or poorly drawn)          will of the parent.

Submission
1.         The process of determining citizenship of the child should remain with the       Department of Immigration and Citizenship. There should not be the need to    make applications to the Family Court to determine as to who is a parent, and as      to whether or not the child is therefore entitled to Australian citizenship. Going      to court is slow, costly, cumbersome, burdensome on taxpayers, judges and other             court users, and most importantly leaves the citizenship of the child unresolved.          A quick, cheap, simple and transparent administrative test is in the public           interest.
2.         The test of determining whether a child is an Australian citizen who is a “child”          of a “parent” for the purposes of the Australian Citizenship Act 2007 when a child             has been born overseas and where a surrogacy arrangement or agreement has been entered into ought to be:
a.         A rebuttable presumption that the “parent” is any intended parent named in a            written surrogacy arrangement or agreement;
b.         A rebuttable presumption that a court order granting the person parental       responsibility however defined means that that person is a “parent”;
c.         A rebuttable presumption that if a person is named under a legal, administrative        or judicial process of an overseas jurisdiction (such as a court order or birth            certificate) as a “parent” then that person is a “parent”; 
d.         The person is genetically a “parent” of the child; or
e.         The spouse of a person is a “parent” of the child.
3.         That the same test be applied under the Family Law Act  1975 and for other    Commonwealth legislation, such as the Child Support (Assessment) Act 1989 and the Australian Passports Act 2005.
4.         This change ought to be retrospective.
5.         That if a person acquires Australian citizenship by descent by virtue of section            16(2)(a), then the person is presumed to be the child for all purposes           (Commonwealth, State and Territory) of the “parent”.

10. Passports

As of 22 April, 2013, Passports Australia has required intended parents ensure that they secure the signature of any person who has parental responsibility for a child so that a passport issue for a child[40]. Passports Australia has in turn defined the person who has parental responsibility as the surrogate. What Passports Australia has not said is that if the surrogate were in a de facto relationship or married at the time of conception, then the consent of her partner or husband is also required.

Be that as it may, in the set and forget model of surrogacy seen in India and Thailand in particular, this issue will increasingly cause intended parents grief when children’s passports need to be renewed every 5 years. It may prove impossible to locate, let alone obtain the consent of the surrogate and her husband/partner to a new passport issuing.

Before 22 April, 2013, Passports Australia did not need the written consent of the surrogate and her husband/partner to the issue of the birth certificate. Therefore passports have issued for children where that consent was not required, but when a renewal of that passport is sought, the consent of the surrogate (and her husband/partner) will be required.

Submission:
6.         That to obtain an Australian passport for a child born overseas where a           surrogacy arrangement or agreement has been entered into, the following test      should apply:
a.         There can be more than two “parents” of the child;
b.         The consent of all of those who have parental responsibility for the child is       required before a passport will issue for the child, subject to the ability to    dispense with that consent, and subject to an order of an Australian court as          currently provided in the Australian Passports Act 2005 (Cth); s.11;
c.         If a court order of another country terminates the parental rights of a person,             that person will not be recognised as having parental responsibility for the child             for the purposes of the Australian Passports Act 2005 (Cth);
d.         If what appears in the opinion of the delegate to be a binding agreement has been       entered into that terminates the parental rights of a person in accordance with     foreign law, that person will  not be recognised as having parental responsibility     for the child for the purposes of the Australian Passports Act 2005 (Cth);
e.         There be Regulations stating in what jurisdictions surrogacy agreements are   considered binding on this point; and
f.          If a child has previously had an Australian passport, the people deemed to have          parental responsibility for the child shall be no greater than the people who had             parental responsibility the previous time a passport issued for the child.

11. Recognition of overseas orders

It is possible to register overseas child orders under the Family Law Act. Section 70G provides:

“The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.”

The Family Law Regulations allow for orders made in prescribed overseas jurisdictions, primarily the United States, to be registered under the Family Law Act, which then have the effect by virtue of sections 70H and 70J of the Act as if they were made by the overseas court under Part VII of the Family Law Act[41] .

Anecdotal evidence exists that it is not possible to register a surrogacy order made in the United States in Australia because such an order involves the termination of parental rights, an order that is not otherwise possible under Part VII of the Family Law Act. An order terminating parental rights is to the Australian public benefit, because it terminates rights of custody under the Hague Abduction Convention. The existence of such an order is considered by the Department when considering citizenship of the child. Such an order also ought be determinative in Australia of parentage.

Example
Reuben and Jack undertake commercial surrogacy in California. They are Australian. A child is carried by a gestational surrogate. The child is genetically that of Reuben and an egg donor. The surrogate and her husband have no genetic relationship with the child. The surrogate is paid a fee. Prior to the birth of the child, the surrogate and her husband consent to an order being made in the Superior Court of California at Los Angeles granting custody to Reuben and Jack, naming Reuben and Jack as the parents, and terminating the parental rights of the surrogate and her husband. The surrogate and her husband were represented in those proceedings. Reuben and Jack are then named on the birth certificate as the parents.
Armed with that order, Reuben and Jack seek to register the order with the Family Court. Registration is refused because, they are told by a Registrar, as the Family Court does not have the power under Part VII of the Family Law Act to terminate parental rights, then the order is not capable of being registered.

 

Submission:
7.Any administrative barriers that exist to prevent the registration of overseas custody orders under the Family Law Act, such as those made in the United States, should be removed.

12. Recognition of overseas birth certificates

It is an absurdity worthy of Sir Humphrey Appleby that s.69R of the Family Law Act states the possibility of recognising overseas birth certificates, but no overseas jurisdictions are prescribed. Intended parents are stunned to learn that their name on the birth certificate is not, on the face of it, recognised in Australia.

However, as they are keen to point out, that same birth certificate is recognised by the local school, Medicare and Centrelink offices as to parentage and identity for the child. As they have pointed out to me, it enables the payment of money to them on the basis of parenthood by the same Government that says that they are not parents!

The impact of the failure to prescribe any jurisdiction is also felt at the State level, as part of the statutory scheme, for example, section 25 of the Status of Children Act 1978 (Qld). It seems extraordinary that no jurisdiction in the world, such as California or the UK, for example, is recognised here.

12.1 Section 70H

By omission, as a matter of biology this section discriminates. It enables the recognition of lesbian co-mothers (amongst others) as part of a nationwide statutory scheme. It is worthy for that purpose, although doubts have been expressed as to the drafting. For example in Lusito and Lusito [2011] , her Honour FM Purdon-Sully (as she then was) questioned the “Chemin de Jerusalem” type labyrinth that is contained within the section before finally concluding that the co-mother was not only deemed to be a parent but was also a parent of the child by virtue of the section.

Section 70H discriminates by omission because it allows for the recognition of co-parenting to lesbian couples, but does not do so for gay couples, who must as a matter of biology use surrogacy. This is a matter that some gay clients of mine have keenly noted.

Submission:
8. That the Commonwealth immediately prescribe jurisdictions by regulation for the recognition of overseas birth certificates.

13. Where do Australians access surrogacy?

According to community group Surrogacy Australia, in 2011 Australian babies born to surrogacy were:

Country
Number
Australia
11
USA
45
Thailand
45
India
242

 

Current trends on where Australians are going

Given the relevantly recent changes in law in most jurisdictions, and the changes to the availability of donors and surrogates, it is likely that the Australian figure will increase. However, it will be some time for these numbers to show themselves properly due to the long lead times. My experience is that the average surrogacy arrangement takes 18 months to 2 years.[42] This is irrespective of where the surrogacy takes place, unless the clinic does not use sexually transmitted infection control protocols, in which case the period will be shorter[43].

Are Australians going overseas when it is illegal?

Yes. On too many occasions prospective clients have entered into surrogacy agreements overseas, and have a child on the way, to only then discover that what they have done is illegal. It would appear that the changes in NSW made an immediate change in early 2011, but by 2012, intended parents going overseas was back to where it was before the changes.

The key factor influencing numbers is an outside influence. On 9 July, 2012 India changed the rules, although it did not publicise the change for months. It decided that those seeking surrogacy from Australia could only do so if they were:

·         Married, for a minimum of 2 years (gay marriage being specifically excluded)

·         From a jurisdiction which did not criminalise overseas surrogacy: Victoria, Tasmania, SA, WA, NT.

The change in the Indian position immediately excluded:

·         Intended parents from Queensland, NSW and the ACT;

·         Those in de facto relationships

·         Same sex couples

·         Singles.

The direct effect of the change as well as the regulatory risk involved with going to India has seen an increase in intended parents wanting to:

·         Undertake surrogacy in Australia, but being frustrated at difficulties in being able to locate donors and surrogates, and the barriers to treatment erected by some clinics.

·         Therefore undertake surrogacy in the US, Thailand, and more exotic locations such as Ukraine and the Republic of Georgia.

Did you know?

Australians desperate to become parents and not commit offences have upended businesses and careers to move to where undertaking commercial surrogacy overseas is legal.

Clients of mine have moved:

From Qld to
 
From NSW to
 
 
Victoria
 
Victoria
 
NT
 
NT
 
WA
 
USA

 

The current trend that I am seeing is an increase in the number of Australian intended parents going to Thailand and the USA. Unless and until there is fundamental reform of Australia’s surrogacy laws, this trend is likely to continue, notwithstanding State bans on overseas commercial surrogacy.

14. Going overseas

It is legal to undertake altruistic surrogacy overseas for residents of every State and Territory.  However, it may not be practical to do so. Clients of mine who were Indian-Australians wanted to undertake altruistic surrogacy in India with a close relative. It would appear that because Indian practice (and the approach of the Department of Immigration and Citizenship) is heavily tilted towards commercial surrogacy in India, undertaking altruistic surrogacy there is extremely difficult.

It is illegal for those ordinarily resident[44] in Queensland, NSW and the ACT to undertake commercial surrogacy overseas[45].

This statement by the Chief Federal Magistrate[46] is therefore incorrect:

New South Wales is the only state to attach criminal penalties to commercial surrogacy completed overseas.”

There is a time limit for prosecution for those from Queensland of in effect of up to a year after the baby returns home, and no time limit in NSW[47] and the ACT.

By contrast it is legal for those from Victoria, Tasmania, SA, WA and the NT to undertake commercial surrogacy overseas.

Did you know?
The regulator of Victoria’s IVF clinics is VARTA (Victorian Assisted Reproductive Treatment Authority). In April 2011 VARTA held a seminar for prospective intended parents looking at undertaking surrogacy overseas called “Cross-border reproductive Care”. VARTA ensured that a fertility doctor from India spoke at the seminar. By contrast, to engage in overseas commercial surrogacy for Queensland residents attracts a maximum 3 year term of imprisonment, and for those from NSW and the ACT a maximum 2 or 1 year term respectively.

 

Example
George and Mildred are itinerants. Due to George’s highly desired work skills, they move from workplace to workplace. They are not “ordinarily resident” in any State as a result. This means that although at all times they are living in Australia (and are Australian citizens) they cannot access surrogacy in Australia as State (and ACT) laws in effect require them to reside in that jurisdiction.   
Faced with the difficulty of not being able to access altruistic surrogacy, they decide that they wish to undertake commercial surrogacy in India. Here they are also caught. They cannot prove to Indian authorities that they are ordinarily resident in Victoria, Tasmania, SA, WA and the NT and not ordinarily resident in Queensland, NSW or the ACT.

 

Example
Barney and Betty are married. Betty lives in Brisbane. Barney works on a fly in fly out basis in the Pilbara. He works 3 weeks on, and one week off. On his week off, Barney returns to Brisbane. Is Barney “ordinarily resident” in Queensland or Western Australia?  Barney may or may not be ordinarily resident in Queensland or Western Australia and therefore may be unable to access surrogacy in either place. Betty because she is resident in Queensland, can only undertake surrogacy in Queensland. Barney may be unable to access surrogacy in WA, and will have to show that he is resident in Queensland. If they wish to undertake surrogacy in India, Betty cannot as she is resident in Queensland.

 

 

Example
Bill and Ben live at Griffith Street, Coolangatta. They are a gay couple. They wish to undertake surrogacy. Fearful of the Newman government’s views about gay men undertaking surrogacy, they undertake commercial surrogacy overseas. Bill and Ben have committed offences in Queensland of entering into a commercial surrogacy arrangement, and of making payment under a commercial surrogacy arrangement. By the time they bring the baby home, they cannot be prosecuted for the entering into a commercial surrogacy arrangement offence, as the time limit has expired. However, they are liable to up to 3 years imprisonment for the offence of making payment under a commercial surrogacy arrangement, for which they could be prosecuted for up to a year after payment, i.e., when their child is a year old.
By contrast, Bill and Ben move to live on the other side of the street in Griffith Street, Tweed Heads. The offence in NSW is entering into the commercial surrogacy arrangement. They have not been prosecuted. Their son is by now 16. During a show and tell, he tells the class that his dads paid for commercial surrogacy overseas. Another class member goes home and tells his dad of what happened in the class room. That dad complains to police. Bill and Ben are prosecuted for the offence- for which there is no time limit in NSW.

15. Swapping roles: NSW and Victoria

One has to wonder at the utility of banning Australians from undertaking commercial surrogacy overseas. It has not worked. Queensland has had such a ban in place since 1988. From 1988 to 2010, the Surrogate Parenthood Act 1988 (Qld) criminalised all forms of surrogacy, both within Queensland, and by those undertaking commercial surrogacy overseas who were ordinarily resident in Queensland.

In 2008 the Lavarch committee of inquiry undertook research as to what prosecutions had occurred in the previous 20 years. The conclusion: between 2 and 7[48]. The maximum penalty available was imprisonment for 3 years. The maximum penalty handed out: a fine of $200.

The ACT ban has been in place since 2004. I am not aware of any prosecutions.

Victoria had a similar ban- from 1995 to 2010. There was only one prosecution that I have been advised about under that legislation. The ban was removed on 1 January 2010. It is now legal in Victoria to undertake commercial surrogacy overseas. As I said above, the Victorian regulator even ran a how to seminar in 2011.

The absurdity of the previous ban in Victoria is illustrated by:

·         The gay couple who underwent surrogacy in California, turning their journey into a series on SBS. They were not prosecuted.

·         The gay couple in Australia’s first surrogacy case, Re Mark[49] in the Family Court. They were not prosecuted.

By contrast, NSW imposed a ban on 1 March, 2011. As far as I am aware, no one has been prosecuted.

Stepping  on mines: the Dudley’s (or Dennis’s)

Mr and Mrs Dudley[50] (or Dennis[51])- same couple, different names used in different decisions in the Family Court, were a Queensland couple who undertook commercial surrogacy in Thailand, after 10 years of trying to become parents.

Their plan was to have two children. Two embryos comprising the husband’s sperm and from the eggs of anonymous donors were created. One embryo was implanted in one surrogate. Twins were conceived. The other embryo was implanted in another surrogate. One child was conceived.

With their 3 children, the husband and wife then applied for parentage orders in the Family Court.When they came before Justice Stevenson, her Honour made a parentage order in their favour for one child. When they came before Justice Watts concerning the twins, his Honour made a parentage order regarding the twins and referred them to the Queensland Director of Public Prosecutions.

A different approach as to referral to the DPP was taken by other judges, for example:

  • Justice Stevenson in the earlier decision.

·         Re Mark (2004)[52]- where Justice Brown declined to refer.

·         Lowe and Barry (2011)[53] where Justice Benjamin did not refer.

·         Ellison and Karnchanit (2012)[54] where Justice Ryan did not refer.

Justice Watts referred because he believed, probably correctly, that there had been an offence committed under the then Surrogate Parenthood Act 1988 (Qld). However, at the time of the referral, the time for prosecution had passed. The children were born in August 2009. The time of the referral was 30 June 2011. Almost two years had passed. Prosecution in Queensland for the relevant offences had to be commenced within 1 year of the commission of the offence[55].  My understanding is that the husband and wife were not prosecuted.

On the same day, Justice Watts referred another  Queensland couple to the DPP for possible prosecution[56]. They were well and truly inside the limitation period. My understanding is that they were not prosecuted either.

Charmyne Palavi

Ms Palavi is best known for having admitted to Four Corners in 2009 to having had sex with several high profile NRL players. She then became the subject of a hate campaign via Facebook. Seemingly her every move was covered in the media, which often described her as a celebrity cougar.

In 2011 Ms Palavi, from Queensland, undertook commercial surrogacy in India. If she did so, Ms Pahlavi committed a criminal offence in Queensland. She was not prosecuted. Her actions were greatly publicised, for example:

·         In February, 2010 as reported by the Brisbane Times[57], initially her sister was to be the surrogate;

·         In June 2010 it looked as though a Townsville woman was to be the surrogate, according to the Townsville Bulletin[58];

·         In June 2010, the Daily Telegraph and reported[59] about dates being set for the commercial surrogacy in India:

·         In November 2010, the Daily Telegraph[60] and Digital Spy[61] reported about going to India for commercial surrogacy;

·         In November 2010 the Courier-Mail[62] and Indian media[63] reported the name of the surrogate and the location in India after Ms Palavi posted a video on her Facebook page;

·         The journey to India was followed on A Current Affair[64];

·         In June 2011, there was publicity in the Courier-Mail[65] and New Idea about the loss of the baby in India, three months before.

 

Example of absurdity
Fred and Ethel are high school teachers in the NSW school system. They live and work in Albury. They wish to undertake commercial surrogacy overseas. To do so in NSW they run the gauntlet of a triple penalty: not only possible conviction, but loss of jobs in the public service and deregistration as teachers.
They make a decision. They rent a house in Wodonga, about 15 minutes away. They remain employed as NSW high school teachers and commute between Wodonga and Albury. After moving, and now being ordinarily resident in Victoria, they enter into a commercial surrogacy arrangement in India. It is legal for them to do so.

16. Easier, quicker, binding, legal: perceptions by Australian intended parents of surrogacy overseas

I agree with the comments by Chief Federal Magistrate Pascoe[66], so far as they go:

“There are a number of reasons for this rise in the prevalence and visibility of surrogacy services, including: a drop in the number of children available for adoption domestically; a tightening of inter-country adoption procedures; increasing infertility in western countries coupled with a trend towards having children later in life; the existence of a new, global surrogacy marketplace; and new technologies, which have made gestational surrogacy possible, affordable and reliable.”

I do not agree with the Chief Federal Magistrate as to these comments in the same paper:

“Due to the divergent approaches to surrogacy regulation around the world, many Australian couples are now travelling overseas to pursue surrogacy.”

From information supplied to me, primarily by my clients, the reasons why Australian intended parents go overseas for surrogacy are as follows:

·         A perception that surrogacy overseas is easier than in Australia;

·         A perception that the surrogate will hand over the child overseas, and may not do so in Australia, i.e. that the intended parents can enter into a binding contract, whereas they cannot do so in Australia;

·         A perception that surrogacy overseas is cheaper than in Australia;

·         A perception that surrogacy overseas is quicker than in Australia;

·         A perception that all forms of surrogacy are illegal in Australia, or not available;

·         A perception that they will not be prosecuted in Australia;

·         A perception that it is easier to access egg donors overseas than in Australia;

·         A perception that it is impossible to locate a surrogate in Australia;

·         A perception that surrogates are not screened in Australia;

·         Obtaining US citizenship for the child;

·         Australian expatriates.

16.1 A perception that surrogacy overseas is easier than in Australia

This is a common perception. It is clearly accurate for those intended parents who cannot access surrogacy in Australia due to their location. Several jurisdictions discriminate, or propose to discriminate. The perception is inaccurate for several jurisdictions.

 

 

16.2 How Australian States discriminate about surrogacy in law and practice

State/Territory
Comment
Qld
No discrimination. The Newman government has flagged the possibility of discriminating against intended parents who are same sex couples, single or in heterosexual de facto relationships of less than 2 years. The status of the proposal is unclear.
NSW
No discrimination. One prominent clinic requires the surrogate and intended parents to have known intended parents for at least 1 year, preferably for 2 years.
ACT
Treatment must be in the ACT. Intending parents must be a couple. Surrogate must be part of a couple.
Vic
No discrimination, except that in effect treatment must be in Victoria. Two dominant clinics require the surrogate to have known the intended parents for at least 1 year. There are varying reports about lengthy delays through Victoria’s system.
Tas
The Surrogacy Act 2012 allows altruistic surrogacy, but at the time of entry into the surrogacy arrangement each party must ordinarily be resident in Tasmania[67].
SA
Surrogacy is only available to married couples or heterosexual de facto couples of greater than 3 years. It is not available to same sex couples, singles or heterosexual de facto couples of less than 3 years. Treatment must be in SA. The dominant clinic requires the surrogate to have known the intended parents for at least 2 years.
WA
Surrogacy is only available to married or heterosexual de facto couples, single women and lesbian couples. It is not available to single men, or gay couples. In effect treatment must be in WA. Statistics indicate a very slow process for surrogacy in WA.
NT
As there are no laws about surrogacy, the only IVF clinic will not offer surrogacy because of the inability to obtain a parentage order.

 

Therefore the following would consider seriously accessing surrogacy overseas:

  • NSW: Anyone who cannot find a surrogate they have known for 2 years.
  • ACT: Anyone who is single, or is unable to find a surrogate who is part of a couple.
  • Victoria: Many intended parents concerned about delays in the system.
  • Tasmania: Any intended parent unable to find a surrogate in Tasmania.
  • SA: Any single, gay, lesbian intended parents or de facto heterosexual couples of less than 3 years.
  • WA: Many intended parents concerned about delays in the system. Any single men or gay couples.
  • NT: Any intended parent.

 

Submission:
9. Internal barriers to surrogacy ought to be removed:
1.      The Commonwealth ought to persuade WA, SA and the ACT to legislate, failing which it should legislate itself to remove discrimination against intended parents based on their sexuality or relationship status where such barriers currently exist;
2.      The Commonwealth ought to persuade Tasmania to legislate, failing which should legislate itself to remove discrimination against intended surrogates and their partners based on their location;
3.      The Commonwealth ought to persuade each of the States and the ACT, failing which it should legislate itself, that intended parents have freedom of choice as to which clinic and court they access in Australia, and therefore they need not reside in a particular jurisdiction or access doctors in that jurisdiction to be able to access surrogacy;
4.      The Commonwealth ought to persuade each of the States to legislate to remove any requirement by clinics requiring the surrogates and intended parents to have known each other for one year or more.

 

It is a condition of the licensing of IVF clinics in Australia that they comply with the National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2007).  It is a requirement of those “guidelines” that clinics not engage in commercial surrogacy[68]. Through an arcane statutory process, those “guidelines” are licensing requirements for the clinics concerned. There are also other licensing requirements in various States.

16.3 The three models of surrogacy regulation in Australia

There is little commonality as to regulation of surrogacy in Australia. There appears to be little if any recognition that other parties may be outside State boundaries, and little commonality of approach. The best that can be said is that the then Standing Committee of Attorneys-General came to draft guidelines as to surrogacy. These guidelines have never been finalised, and nor have the laws been harmonised.

There are three models of surrogacy regulation throughout Australia:

16.4 Model 1: No laws: NT

The Northern Territory has no laws about surrogacy. This means that it is legal to engage in surrogacy in the Northern Territory. In reality, all that is available is:

·         Traditional, altruistic surrogacy

·         Traditional, commercial surrogacy

As there are no laws, there is no ability to obtain a parentage order. This then impacts on any potential surrogates who live in the Northern Territory when the intended parents live interstate: if the surrogate gives birth in the Northern Territory, then a parentage order made interstate will not be able to name the intended parents as the parents of the child, as there is no ability to alter the birth register.

For the same reason, namely the inability to obtain an order, the only IVF clinic will not provide surrogacy services. Because of the NHMRC Guidelines the clinic cannot offer commercial surrogacy services.

Example
Benny and Belinda live in Cairns. They need to undertake surrogacy. Belinda’s sister, Bella,  lives in Darwin. Bella offers to be their surrogate. Bella operates her own business. If Bella gives birth in Darwin, Benny and Belinda cannot ever be named as parents on the birth certificate. The ability to privately adopt in Queensland for example is highly circumscribed[69]. If Bella travels to Queensland to give birth, this might have a devastating effect on her business.

 

Example
Jack and Marjory wish to undertake surrogacy. They live in Darwin. They are both in secure employment. They would prefer to undertake altruistic surrogacy. Given the barriers facing them, they either have a choice of moving interstate, or undertaking surrogacy overseas. They choose to undertake commercial surrogacy in India.

 

16.5 Model 2: Light regulation: Qld/NSW/ACT/SA/Tas

The key feature about this model is the need to have a surrogacy arrangement. The arrangement is not required to be in writing, but if not obtained, doctors will not treat and courts will not make parentage orders.

The common feature is that there is mandatory counselling and legal advice before the surrogacy arrangement is signed and that before a parentage order is obtained, an independent report is obtained, similar to a family report, to ascertain if the making of the order is in the best interests of the child[70].

Queensland requires counselling beforehand, and an independent assessment after.

NSW, when it followed the Queensland model, requires this too, but also requires relinquishment counselling of the surrogate and her partner after having given over the child. In practice there appears to be little benefit in relinquishment counselling, as any issues that might be raised there can be adequately raised in initial counselling, in the obtaining of legal advice and in the report process.

ACT requires counselling and assessment from an independent counsellor which can have occurred before or after the surrogacy arrangement is entered into.

SA is similar to Queensland, but before the surrogacy arrangement is signed up, there must be a counsellor who makes an assessment of the suitability of the surrogate (it is not said how this will be achieved, nor whether the intended parents are to be counselled at this point) and more counselling, from different counsellors of the intended parents and the surrogate and her partner.

Tasmania largely follows on the Queensland model, with some additions from SA and NSW.  While a magistrate can order an independent report, the requirement is that a counsellor  see the parties before and after the process.

My views as to best practice:

·         Have one counsellor undertake pre-signing counselling for all parties, who provides a written report to the IVF clinic, which is also made available to the parties, and if the matter proceeds to court, to the court. It is essential in my view for issues of difference to be sorted out in counselling, and that the parties although they have different perspectives have a common shared vision for the child and the surrogacy arrangement. It is my view that the South Australian model potentially hampers this process at commencement.

·         There ought to be a post-birth independent assessment much like a family report, so that the court can be assured that the orders it makes are in the best interests of the child.

·         The practice of one of the pioneers of surrogacy in Australia, the Canberra Fertility Clinic is the ideal as to counselling:  namely after initial counselling, that there be counselling between the key parties (typically the intended mother and the surrogate) at:

·         3 months pregnant

·         6 months pregnant

·         3 months post-birth

I am of the view that it is essential that any possible difficulties are likely to be ironed out through counselling. Given that it is likely that the surrogate and her partner will play a part in the child’s life for the rest of their lives, a smooth start for that child’s life is essential. I don’t believe that this process of extra counselling on the Canberra model needs to be part of regulation, but part of best practice standards adopted by, say, ANZICA[71].

16.6 Model 3 Heavy regulation: Vic and WA

Both Victoria and WA have a State regulator. The perception of IVF clinics and of intended parents is that the system is very slow, costly, and invasive. I am told that the process to obtain approval from the Patient Review Panel in Victoria takes 2-4 months, but I have had clients who spent 18 months before treatment could commence. They gave up, and decided to go overseas instead.

The most damning words about what has happened in Western Australia were those of the Tasmanian  Leader of Government Business in the Legislative Council, Mr Farrell, when rejecting the Western Australian model as a model for Tasmanian laws on surrogacy[72]:

“I have been provided with a report that shows that when debating the surrogacy reforms in Western Australia the Attorney-General stated there were between 40 and 50 couples awaiting the passing of surrogacy legislation and that the government anticipated approximately 25 applications per year for parentage orders.  After the legislation was passed [73]it was nearly two years before any applications were received by the approval body.  By November 2010, two applications for surrogacy had been approved and a further one was under consideration.  The author of the report surveyed those people who had identified as wishing to utilise surrogacy but who had not done so.  Overwhelmingly, the response was that the people simply could not meet the requirements of the legislation.  Of those surveyed the majority were still intending to pursue surrogacy but outside the parameters of the legislation.  The result of this is that there will continue to be children being raised by people who do not have legal parentage of them.  As I outlined earlier, this is not in the best interests of the child.”

Submission:
10.       It is recommended that the Commonwealth press for uniform surrogacy laws, if         as to altruistic surrogacy to be on the Queensland model and related matters,   such as alteration of birth records for children born via surrogacy.
11.       Preferably the Commonwealth will seek to either have a referral of power, or             seek to legislate using its legislative powers to enable uniform national laws as to             surrogacy, and related matters, such as alteration of birth records for children       born via surrogacy.

16.7 Possibility of exploitation

A worry of intended parents in undertaking surrogacy overseas include the possibility of exploitation. They do not want to exploit a surrogate. They do not want to exploit a child, and they do not want to be exploited themselves.

Certainly the reports from the United States indicate that transactions are above board, that there is complete transparency, that there is no exploitation of the intended parents, surrogate and her partner, the child or donors, and above all there are clear rules backed by the rule of law in case anything goes wrong.

I do not hold the same confidence about some other jurisdictions.

The concern raised with me about India by clients is: “What’s next?” This is a fair question to ask when India changed the rules without notice, on a discriminatory basis, and did not advise intended parents until almost 4 months later.

Children born via surrogacy in India are born Stateless. Historically both Australian heterosexual parents have been named on the birth certificate, and one of gay intended parents.

Children born via surrogacy in Thailand will always have the name of the surrogate as the mother on the birth certificate, not that of the Australian intended mother. For gay couples, only one will be named on the birth certificate, usually the genetic father.

It is of concern to me that in India and Thailand, for example, that intended parents may not have an ongoing relationship with the surrogate (although there are exceptions to this), and the child may not know truly where they have come from. Not only will the child likely not have an ongoing relationship with the surrogate, but any donors will be anonymous.

The only concern I have about the US (for those jurisdictions in Australia where it legal for Australian intended parents to access commercial surrogacy overseas, and aside from citizenship issues) is the cost, especially the at times uncertain and high medical and insurance cost. Many of my clients have said that they chose to undertake surrogacy in India or Thailand over the US for one reason- the much lower cost.

16.8 A perception that the surrogate will hand over the child overseas, and may not do so in Australia

This perception is real. It is the fear of every intended parent for whom I have ever acted (with the exception of mother/daughter or sister cases), the predominant fear, that the surrogate will not hand over the child.

The reality is that because commercial surrogacy has not been adopted in Australia, there are not binding contracts. The surrogate can refuse to hand over the child, or refuse to co-operate with the process. However, properly managed this should not happen. It would be helpful to have proper screening of potential surrogates to minimise this risk.

If there were to be binding contracts there would, no doubt, be the rise of surrogacy agencies, which would have the ability to screen both intended parents and surrogates, in a completely transparent manner, as has happened now in the US very successfully, for 33 years.

Conversely, the fear of every surrogate for whom I have acted or with whom I have talked is a fear that the intended parents will not take the child.

My clients who have decided to go overseas have very strong views: that if they go to overseas jurisdictions that they will be entering into binding contracts so that a paid surrogate will be required to hand over the child.

Example: things that can go wrong
Ricky and Lucy live in Melbourne. They undertake surrogacy in India. They plan to have one child. Twins are conceived. This was not part of Lucy’s plans. She decides to separate. Ricky becomes the single father to twins. Who should be the parent as a matter of law? 

 

Example: things that can go wrong
Ron and Margaret live in Adelaide. They undertake surrogacy in Adelaide. During the pregnancy, Ron and Margaret separate. Neither want the resulting child. What happens to the child? They are not legally obliged to take the child as there is no contract. The child would be the child of the surrogate and her partner as a matter of law, although the child is genetically the child of Ron and Margaret. The surrogate and her husband could either keep the child or put it up for adoption. If they decide to keep the child, they might be able to sue Ron and Margaret for damages for issue estoppel, but are unable to receive child support, and the basis for the payment of damages is based on Ron and Margaret having property or income that can be recovered against.

The only way that this perception can be adequately dealt with is by allowing commercial surrogacy to occur in Australia. Unless and until this happens, Australian intended parents will continue to access surrogacy overseas. Commercial surrogacy could be easily able to be done in Australia without fear of exploitation of intended parents, surrogates and their partners or the children. The framework for the licensing of clinics is already there. Australians have world class medical services and world class clinics. It is preferable that Australian surrogates have the option of being paid, to be compensated for the risk that they undertake. To follow the example of Western Australia, the intent of legislation which is to prevent commercial surrogacy is achieving the opposite- driving people to commercial surrogacy operations overseas.

 

16.9 A perception that surrogacy overseas is cheaper than in Australia

It can be considerably cheaper undertaking surrogacy in Australia than going overseas. I estimate that the cost for intended parents undertaking surrogacy is as follows:

 

Estimated surrogacy cost

Country
Total Cost
Source
Australia
$45-60,000
$45,000 :  Surrogacy Australia survey 2012, after another 5 years of IVF treatment, also costing $45,000. Writer’s experience from clients’ advice and evidence:  $45,000-60,000
India
$76,000
Surrogacy Australia survey 2012
Thailand
$76,000
From the writer’s experience, the cost is approximately the same as India. If Family Court action is taken, as per Ellison and Karnchanit[74] add another $50,000-100,000.
USA
$100-250,000
$176,000: Surrogacy Australia survey 2012. Writer’s experience- cost varies greatly depending on the State in which the agency operates, the State in which court proceedings occur, individual agency charges, and insurance criteria. Insurance may cost as much as US$35-50,000. Agencies charge between US$60,000 and $170,000.

 

It may seem bizarre, but at a time when Australian internet screens are awash with advertising of overseas surrogacy agencies, Australian IVF clinics are prohibited from advertising that they undertake surrogacy services.

16.10 A perception that surrogacy overseas is quicker than in Australia

From my experience, and from talking to counsellors, fellow colleagues and agency owners in Australia and the US, the average time from beginning to end is 18 months to 2 years, i.e., from commencing the process to obtaining a parentage order.  From talking to clients, there is a similar amount of time for those who undertake surrogacy in India.

In other words, it would appear that in the light regulation States, the process of surrogacy is as quick as that overseas. The clear perception of intended parents is that the process is slower in Victoria and Western Australia.

The two key time periods in the 18 months to 2 years are:

·         Pregnancy:                                                      9 months

·         Sexually transmitted infection controls:         typically 6 months for HIV/AIDS

The variables are:

·         The process of having counselling, legal advice and signing the surrogacy arrangement. Typically my clients do this in about 2-4 weeks. I recently took over a matter when at the beginning that process (when handled by other lawyers) took about 5 months.

·         How many IVF cycles are required.

·         Delays within clinics. Some clinics are able to make ethical approval for treatment quickly. In at least one clinic, the ethics committee meets only once every 4 months.

·         Delays in appointments for the independent assessment report.

·         Delays in listing at court.

16.11 A perception that all forms of surrogacy are illegal in Australia, or not available

I am constantly amazed to be told by clients contemplating surrogacy overseas that they did not know that surrogacy services were available in Australia at all. I should not be amazed. Overseas agencies are able to advertise on the internet. Australian clinics are banned from advertising that they supply surrogacy services. It seems purely by chance that Australian intended parents become aware that surrogacy services are offered by clinics.

The NHMRC Guidelines, binding on every Australian IVF clinic, provide[75]:

“Clinicians should not advertise a service to provide or facilitate surrogacy arrangements, nor receive a fee for services to facilitate surrogacy arrangements.”

Politicians of both colours have said to me that they are concerned about the possible exploitation of women in developing countries through surrogacy arrangements. If we as a country were so concerned, we would make it easier for intended parents to undertake surrogacy at home, including by altering the Guidelines to allow clinics to advertise. If we as a country were truly concerned about the possible exploitation of women in developing countries through surrogacy, we would allow commercial surrogacy to occur here. If commercial surrogacy can occur successfully in the US without exploitation, and with full transparency provided by world class clinicians, why can’t Australia’s world class clinicians also provide that service?

It is illegal in all States and the ACT to advertise to seek a surrogate or to say that a woman is prepared to be a surrogate, although NSW has an exception if the advertising is for altruistic surrogacy and is for free.

Is it any wonder that intended parents think that surrogacy services are not available in Australia?

Number of clinics offering surrogacy services

State/Territory
Number
Qld
7
NSW
ACT
3
Vic
3
Tas
1
SA
3
WA
N/K
NT
0

 

Submission
12. Amend the NHMRC Ethical Guidelines to allow for Australian doctors to advise that they provide surrogacy services.
13. If there are to be laws allowing commercial surrogacy, amend the NHMRC Ethical Guidelines, to enable Australian doctors to engage in commercial surrogacy.

 

16.12 A perception that they will not be prosecuted in Australia for pursuing surrogacy overseas

This perception appears to be real.

16.13 A perception that it is easier to obtain egg donors overseas than in Australia

At the moment there is no great delay in obtaining the help of an egg donor, whereas a year ago there were monumental delays. A year ago, the advice from clinics was:

            “If you don’t bring a donor, forget it.”[77]

The landscape has changed. It would appear that the more publicity is given to infertility issues, the more women come forward to be donors. Websites have sprung up whereby women are saying that they are prepared to be donors. It now takes intended parents approximately 6 to 8 weeks to locate a suitable donor.

Presumably there is a purpose in laws preventing the payment of donors, except for reasonable expenses, punishable by up to 15 years imprisonment, and to stop donors advertising. However, the existence of those laws at times appears cruel, and in part has the impact that Australian intended parents vote with their feet and go offshore.

It is an offence by virtue of Commonwealth law , State  and ACT  law (with the State and ACT laws to run together with Commonwealth law ) to engage in the commercial trade in eggs, sperm and embryos.

It is commonplace for fertility doctors to advise their patients that as eggs are so hard to source in Australia that they should consider going overseas to acquire eggs there.

While it may seem unlikely, in at least two jurisdictions, Queensland and NSW if not handled correctly, the patients and their husbands or partners may be committing a criminal offence punishable by up to 15 years imprisonment by engaging in the commercial trade in eggs in say California, even though commercial donors there are legal.

Similarly, doctors by advising their patients to undertake this process, might also be parties to the offence.

For example, in NSW an offence is committed if part of the offence is committed in that State or the effect of the offence is in that State[78]. Thus if an intended parent signs an egg donor contract in NSW, scans it and emails it back to the overseas agency, he or she may have committed part of the offence. If payment is made to the agency from an account in NSW, he or she may have committed part of the offence, or the offence may have had an effect, namely a withdrawal from the account.

Submission
14.  The Commonwealth should legislate to ensure that there is not an unintended extra-territorial effect of offences relating to the commercial trade in eggs, so that if the offences remain, they only apply to offences committed wholly in Australia.

The reason that intended parents go overseas for egg donors is in part because of the great difficulty in obtaining eggs in Australia. It would appear that the main reasons for this are:

           The inability in some States at least to be able to advertise seeking egg donors, or   seeking recipients;

           The inability for egg donors to be paid.

Submission
15. Egg donors and intended recipients ought to be able to advertise to seek eggs or egg donors.
16. Egg donors ought to be able to be paid for their services.

 

16.14 A perception that it is impossible to locate a surrogate in Australia

This is now not the case. Surrogates are advertising freely, despite laws prohibiting them from doing so. As of a year ago it was very hard to locate surrogates, so intended parents (rarely) gave up; or undertook surrogacy overseas (legally or not).

Several clinics have a rule that the surrogate and the intended parents must have known each other for some time, and if they haven’t that clinic refuses to provide treatment. The impact of that view is that intended parents decide that to undertake surrogacy in Australia is all too hard, and decide to go overseas instead- the exact opposite of what our lawmakers appear to want.

The view that surrogates found over the internet, with no prior connection with the intended parents, are inherently inferior to family members or friends is in my view inherently fallacious. What is essential in my view to make surrogacy arrangements to work is that there is thorough screening undertaken by properly trained, experienced professionals, such as by the initial counsellor, along with a commitment by the intended parents, the surrogate and her partner to:

·         Communicate with each other openly

·         To be flexible

·         To be respectful of each other

If these ingredients are missing, then no matter the length of time of the relationship between the parties, then it may end up on the rocky shores of the Family Law Courts, as did the two couples, long term friends, in Re Evelyn[79] .

There is a prohibition in allowing brokers or agencies in several States. The experience in the United States is that agencies allow the proper screening of both surrogates and intended parents, so as to minimise exploitation, and increase the quality of care provided, and therefore the outcome for all concerned, but especially for the child.

It appears clear to me that the more controversy that there has been about surrogacy, the more women are prepared to come forward and become surrogates. The impact of Nicole Kidman and Keith Urban, or Elton John and David Furnish having children by surrogacy should not be underestimated.

16.15 A perception that surrogates are not screened in Australia

While there is psychological testing of surrogates as part of the counselling process in Australia, and criminal and child protection checks in Victoria, this perception is largely accurate. Unlike the systems of surrogacy agencies in the US, here intended parents have to run the gauntlet in choosing a surrogate.

16.16 Obtaining US citizenship for your child

Any child born in the US is automatically as a matter of law a US citizen. For some intending parents, choosing where to undertake surrogacy is a simple choice: they can obtain the best quality medical care in the US and give their child a leg up- guaranteed American citizenship. Children born in the US to Australian citizens will on the face of it have dual citizenship.

Submission:
17. There ought to be the ability of intended parents and intended surrogates to advertise. The Commonwealth can easily legislate to allow such advertising on the internet.
18. If there is to be commercial surrogacy in Australia, there ought to be commercial agencies which are properly licenced, in accordance with standards set by an industry body, such as the Fertility Society of Australia, failing which legislated by national standards.

16.17 The needs of expatriate Australians

Some expatriate Australians would rather undertake surrogacy in Australia than overseas, for a number of reasons. The current State based laws make no allowance for Australians who live overseas who wish to engage in altruistic surrogacy in Australia. There is generally a residence requirement- that the intended parents must be resident in that State at all material times, or at the very least at the time of the making of the application for a parentage order.

Australians who live overseas worry about how our laws affect them. Those born in NSW or wanting to return to NSW worry that the domicile provision of that State’s Surrogacy Act, whereby someone domiciled in NSW might be liable for prosecution for committing the offence of entering into a commercial surrogacy arrangement outside NSW, might apply to them. In theory they could be liable, if the person were born in NSW and then wanders the globe without permanent residence.

Those expatriate Australians who wish to undertake altruistic surrogacy at home are also caught. They are faced with a myriad of conflicting rules, not only within Australia, before they can make an informed choice.

Example
Michael and John live in London. They both come from South Australia. John’s sister Judy has offered to be their surrogate. Judy lives in South Australia. At first blush, a surrogacy arrangement could not occur: the Family Relationships Act requires the intended parents to be married or in a heterosexual de facto relationship[80]. It also requires the intended parents to be domiciled in South Australia[81]. To achieve a surrogacy, surrogacy would need to occur in NSW or Queensland, provided that:

o   Judy was prepared to travel to Sydney or Brisbane for treatment. The effects of the Family Relationships Act mean that treatment for surrogacy in South Australia has to occur in South Australia[82], and it is unlikely that an Adelaide IVF clinic would offer treatment.
o   Michael and John move to live in Queensland or NSW. It is a requirement under those States’ Surrogacy Acts[83], the most liberal on this point, that they have to reside in those States at the time of the hearing of the application for a parentage order.

 

Submission:
19. Expatriate Australian citizens as intended parents should be able to access Australian surrogacy arrangements without penalty. The Commonwealth should persuade the States and the ACT on point, failing which the Commonwealth should legislate.

17. Legal overview of surrogacy

There is a minefield of legislation and practices that intended parents (and surrogates and their partners) have to negotiate in their dream of becoming parents. This legislation is often inconsistent.

17.1 Legislation directly impacting on surrogacy and parentage arrangements

Jurisdiction
Legislation/Regulation
Purpose/Effect
Cth
Australian Citizenship Act 2007, s.16
Citizenship of  “child” born to Australian “parent” overseas
 
Australian Passports Act 2005
s.11: issuing of passports to child in absence of consent of those with “parental responsibility”
 
Child Support (Assessment) Act 1989, ss 5, 20
“Parent”, “eligible child” by reference back to Family Law Act
 
Family Law Act 1975
“Parent”, child” especially in ss60H and 60HB, parenting presumptions
 
National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007
Licensing, prohibition of IVF clinics engaging in commercial surrogacy nor advertising surrogacy services
 
Prohibition of Human Cloning for Reproduction Act 2002, s.21
Ban on commercial trade in eggs, sperm, embryos, max penalty 15 year imp.
 
s.24
State laws operate concurrently
 
Qld
Births, Deaths and Marriages Registration Act 2003
Altering birth register
 
Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003, s.17
Ban on commercial trade in eggs, sperm, embryos, max 15 years imp.
 
Status of Children Act 1978
Parenting presumptions
 
Surrogacy Act 2010
Regulation of altruistic surrogacy, ban of commercial surrogacy
 
NSW
Assisted Reproductive Technology Act 2007
Regulation of IVF clinics
 
Births, Deaths and Marriages Registration Act 1995
Altering birth register
 
Human Cloning for Reproduction and Other Prohibited Practices Act 2003, s.26
Ban on commercial trade in eggs, sperm, embryos, max 15 years imp.
 
Status of Children Act 1996
Parenting presumptions
 
Surrogacy Act 2010
Regulation of altruistic surrogacy, ban of commercial surrogacy
 
ACT
Births, Deaths and Marriages Registration Act 1997
Altering birth register
 
Human Cloning and Embryo Research Act 2004, s.19
Ban on commercial trade in eggs, sperm, embryos, max 15 years imp.
 
Parentage Act 2004
Parenting presumptions, regulation of altruistic surrogacy, ban of commercial surrogacy
 
 
 
Vic.
Assisted Reproductive Treatment Act 2008
Regulation of altruistic surrogacy, ban of commercial surrogacy
 
Births, Deaths and Marriages Registration Act 1996
Altering birth register. Note: there is no stated ability to recognise interstate parentage orders.
 
Prohibition of Human Cloning for Reproduction Act 2008, s.17
Ban on commercial trade in eggs, sperm, embryos, max 15 years imp.
 
Status of Children Act 1974
Parenting presumptions, parentage orders
 
Tas.
Births, Deaths and Marriages Registration Act 1999
Altering birth register
 
Human Cloning for Reproduction and Other Prohibited Practices Act 2003, s.20
Ban on commercial trade in eggs, sperm, embryos, max  15 years imp.
 
Surrogacy Act 2012
Regulation of altruistic surrogacy, ban of commercial surrogacy,
 
Status of Children Act 1974
Parenting presumptions
 
SA
Births, Deaths and Marriages Registration Act 1996
Altering birth register
 
Family Relationships Act 1975
Parenting presumptions, regulation of altruistic surrogacy, ban of commercial surrogacy
 
Prohibition of Human Cloning for Reproduction Act 2003, s.16
Ban on commercial trade in eggs, sperm, embryos, max 15 years imp.
 
WA
Artificial Conception Act 1985
Parenting presumptions
 
Births, Deaths and Marriages Registration Act 1998
Altering birth register
 
Human Reproductive Technology Act 1991, s.53Q
Ban on commercial trade in eggs, sperm, embryos, max 15 years imp
 
Surrogacy Act 2008
Regulation of altruistic surrogacy, ban of commercial surrogacy
 
NT
Births, Deaths and Marriages Registration Act
Not altering birth register
 
Status of Children Act
Parenting presumptions

 

It is unclear from the laws in several States as to whether a parentage order made in another State will be recognised in that State and alter the birth register accordingly. In at least the NT, it would appear that a parentage order made interstate will NOT be recognised in the NT.

 

Examples of interstate absurdity

Example 1
Although surrogacy was legal in NSW it was not legislated for. It was not possible to obtain parentage orders. In 2010, then NSW Attorney-General John Hatzistergos announced that NSW would have laws based on the Queensland model.
One would think that this would involve copying the drafting of the Queensland legislation. It didn’t. No apparent thought was given to those who live across State borders. One might have thought that this was obvious, given that IVF clinics on the Gold Coast are the only clinics providing services to the far north coast of NSW. No, it was not to be.
Mike and Tyson live in Queensland. They want to undertake surrogacy. Mike’s friend Polly living in NSW offers to be the surrogate. When I looked at the equivalent section of the NSW Bill to that in the Queensland Act covering allowable expenses, it appeared to be comparing chalk with cheese. I could not tell whether they were the same or different. The drafting was quite different. It was important to know: otherwise the surrogate might be inadvertently committing a serious criminal offence in NSW by entering into a commercial surrogacy arrangement. Two paralegals in my office were given the task of reading the two provisions side by side. The verdict: they were the same!
Mike, Tyson and Polly’s children are born in NSW. Because Mike and Tyson live in Queensland they must apply for a parentage order in Queensland. The judge questions why the application is brought there, until it is pointed out that they cannot bring an application in NSW and must bring the application in Queensland, in accordance with the scheme. A parentage order is obtained. It is forwarded to the NSW Registrar of Births, Deaths and Marriages in accordance with the procedure outlined by that office. It is the first interstate matter before the NSW Registry. It took 5 months to have the  children’s birth register altered! This is despite NSW and WA being the only States to specifically provide for alteration of birth records resulting from interstate parentage orders. By contrast, processing time for a parentage order made in the Children’s Court of Queensland by the Registry in Queensland is 2 to 3 days!
The officer of the Registry suggested to me:
            The order should have been made by the Supreme Court of NSW. I pointed out that         the Supreme Court could not do so as the intended parents reside in Queensland.
            The order should have been transmitted to the NSW Registry by the Queensland   Registry of Births, Deaths and Marriages. It was pointed out by me that the view of     the Qld Registrar was that because the children were not born in Queensland, the          Queensland Registrar has no interest in them[84]and will therefore not transmit.
            The order should have been transmitted by the Children’s Court as the official could         not be satisfied that the order was made by the court. I pointed out that the court does       not transmit orders as a matter of practice, In any Case the Registry had the duplicate             sealed order!
            The order should have been sent to the Supreme Court of NSW for transmission. I            pointed out that that court would not want the matter as it lacked jurisdiction.
            The matter should be dealt with in Queensland because it was akin to adoption. I pointed out that it was surrogacy, not adoption, and that there was specific NSW   legislation on point.
I note that because the Queensland Parliament chose for the Children’s Court to make parentage orders (and similar approaches are taken in Victoria[85], South Australia and Tasmania), there is an inability of the Queensland court to exercise the cross-vested jurisdiction of the NSW Supreme Court.

In my view surrogates are amazing people. They are prepared to risk their lives to enable others to achieve the joy of parentage. In my view they ought to be cherished. South Australia and Victoria apparently gave little thought about how to protect them.

Example 2: South Australia: outrageously failing to care for the surrogate
Pam and Martina are sisters. Pam lives in Adelaide, Martina in Brisbane. Both are married. Pam offered to be Martina’s surrogate. It is my invariable practice that intended parents provide adequate life insurance, health  insurance and disability insurance for the surrogate. If she dies or is severely injured in childbirth, what impact will that have on her husband and children?
Luckily, Pam had adequate insurance anyway and did not need to be covered. If she had insurance provided by Martina and Martina’s husband, Pam would have committed a criminal offence because under South Australia’s Family Relationships Act, that payment was not allowable[86], and would have meant that the surrogacy arrangement was a commercial arrangement, which would have been the commission by Pam and her husband of a criminal offence.

 

Example 3
Roger and Venus live in NSW. They are the intended parents. Rod and Yvonne live in Queensland. Yvonne is the surrogate. The child is born in Queensland, and therefore registered in Queensland. Because Roger and Venus live in NSW, they must necessarily make a parentage order application in NSW. The application is heard in the NSW Supreme Court, but is dealt with on the papers, in accordance with the process of the adoption list of that court. The result? The order refers to adoption, even though it is a surrogacy case. If the matter had been heard in open court, this might have been avoided. It is the second or third interstate matter to be processed by the Queensland Registrar of Births, Deaths and Marriages. The Registrar proposes to deal with the alteration of the birth record as an adoption matter because of the word “adoption” on the order. The previous matter, also marked “adoption” from a NSW Supreme Court parentage order, has resulted in the birth record being sealed, to the potential detriment of the child. The same sealing would not occur in a surrogacy case. The Supreme Court  ultimately removes the word “adoption” from the form of order, allowing the alteration of the register to recognise a parentage order.

 

Example 4
Greg and Marcia are intended parents who live in NSW. The surrogacy arrangement must therefore be a NSW arrangement. Marcia’s sister Jan lives in Victoria. Jan gives birth to the child in Victoria. Greg and Marcia obtain a parentage order from the NSW Supreme Court. They attempt to have the birth register altered in Victoria- without luck- because Victorian legislation does not recognise a parentage order made outside Victoria!

 

Example 5
Chandler and Monica live at Jerrabombera, a Canberra suburb, but in NSW. They want to undertake surrogacy through their local IVF clinic, the Canberra Fertility Clinic. To be able to do so, and to obtain a parentage order in Canberra, they have to move home to the ACT, even though they are only 20 minutes from the centre of Canberra!

 

Submission:
20. The Commonwealth ought to work with the States to remove any practical barriers that prevent the timely recognition of alteration of birth registers of children following the making of parentage orders.

18: A call for commercial surrogacy in Australia

No politician in Australia has called for the introduction in Australia of commercial surrogacy. No politician has called for an inquiry or discussion about commercial surrogacy. For politicians, commercial surrogacy is seen as a great taboo. Following the well publicised dramas of Senator Conroy and his partner, and the response by the then Attorney, Phillip Ruddock, all the States undertook inquiries about altruistic surrogacy. The terms of reference were quite clear, as seen for example with the Lavarch committee in my home State of Queensland. There was no discussion at all about commercial surrogacy. It was seen as a bridge too far.

The failure of Australia’s political class to properly deal with commercial surrogacy, together with the inevitable limitations of adoption and altruistic surrogacy, have meant that Australian intended parents have voted with their feet and undertaken commercial surrogacy overseas. Attempts to prevent this are futile because intended parents read the web, they are informed, and will do anything to become parents. Desperation is the keyword. They are desperate to become parents.

A failure to ensure that there is commercial surrogacy within Australia will mean inevitably an increase in Australians seeking commercial surrogacy overseas. In my view properly regulated commercial surrogacy will ensure a transparent process that avoids exploitation of intended parents, the surrogate and her partner, and donors, and most importantly any children born through the process. The proof is in the pudding: if the US is able to have such a successful program in place for over a generation, why can’t we?

By making available commercial surrogacy in Australia, there will be fewer Australian intended parents making the journey overseas, especially to developing countries such as India and Thailand.

19. International human rights treaties

The UN Population Fund (UNFPA) has set out a useful summary of reproductive rights[87]:

“Attaining the goals of sustainable, equitable development requires that individuals are able to exercise control over their sexual and reproductive lives. This includes the rights to:

·         Reproductive health as a component of overall health, throughout the life cycle, for both men and women

·         Reproductive decision-making, including voluntary choice in marriage, family formation and determination of the number, timing and spacing of one's children and the right to have access to the information and means needed to exercise voluntary choice

·         Equality and equity for men and women, to enable individuals to make free and informed choices in all spheres of life, free from discrimination based on gender

·         Sexual and reproductive security, including freedom from sexual violence and coercion, and the right to privacy.”

The Universal Declaration of Human Rights provides:

“Everyone is entitled to all the rights and freedoms set forth in this

Declaration, without distinction of any kind, such as race, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth, or

other status.”[88]

 “All are equal before the law and are entitled without any discrimination

to equal protection of the law. All are entitled to equal protection against

any discrimination in violation of this Declaration and against any incitement

to such discrimination.”[89]

The International Covenant on Civil and Political Rights  provides, in addition to the quoted passages at the beginning of this submission:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[90]

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[91]

The International Covenant on Economic, Social and Cultural Rights, provides:

“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…

            “these rights derive from the inherent dignity of the human person

“The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment…

The Convention on the Elimination of all Forms of Discrimination Against Women provides[92]:

“States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:……

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.”

The Convention on the Rights of the Child provides[93]:

“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

The United Nations Human Rights Office of the High Commissioner stated quite clearly last year in “Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law[94] that it is incumbent on nations to stop discrimination based on sexual orientation and gender identity. In that very chapter is reference to Toonen v Australia, the case taken to the UN that led to the abolition by the Commonwealth of Tasmania’s anti-sodomy law, and Young v Australia (which dealt with different pension rights). It is incumbent on the Commonwealth to end the discrimination that currently exists in legislation in WA and SA.

Example: Gay intended parents
I was asked recently by a judge why the matter was before the court; why my clients as intended parents were before the court. My answer was blunt: Most people when they try to have children have sex. If children could be conceived that way, no one would want to subject themselves to the alternative: a barrage of counsellors, doctors, lawyers and a judge, (and at a substantial cost) as a means of conceiving children.  Surrogacy is the option of last resort.
For my clients, who were gay, the options of fathering children were limited:
·         Having sex with a woman;
·         Becoming known donors (but then not parenting the child, except at a distance);
·         Adopting (but there are very few children available, almost none internationally to gay and lesbian intended parents, but in any case as they were Queenslanders, adoption as a matter of law is not available to them); or
·         Surrogacy

 

The effect of surrogacy laws, by virtue of biology, fall disproportionately upon gay men. There is a risk that preventing gay men from forming families, by denying or restricting their ability to access surrogacy is discriminatory.

In reality for gay men, surrogacy is often the only option to achieve parenthood.

20. Referral of powers

Back in the 1980’s it was recognised the law was attempting to keep up with changes in society- specifically the large increase in the number of children born out of wedlock, typically when their parents were living in de facto relationships. It was quickly recognised that ex-nuptial custody cases, as they were called, were not best dealt with in the Supreme Courts, but best dealt with in a court that specialises in children’s cases: the Family Court.

The situation we now face is a repeat of what happened in the 1980’s. There will be an increase in the number of cases involving surrogacy. These do not come before specialist judges who deal with family law matters day in and day out, but in the interests of children should do so.

All the States, with the exception of Western Australia, which had the benefit of a standalone Family Court, referred powers to the Commonwealth. The referral from NSW for example, included[95]:

“(b) the custody and guardianship of, and access to, children,

(c) the determination of a child’s parentage for the purposes of the law of the Commonwealth, whether or not the determination of the child’s parentage is incidental to the determination of any other matter within the legislative powers of the Commonwealth”

 

It may well be that the Commonwealth can legislate about surrogacy based on those referrals of power, or ought to seek a further referral of power if it does not believe it has the necessary power.

 

Submission:
21. The Commonwealth ought to consider whether or not it has the constitutional power to legislate for national laws concerning surrogacy.
22. If it does not have such power, the Commonwealth should consider seeking a referral of power from the States concerning surrogacy.
23. If it is necessary to, the Commonwealth should legislate for uniform surrogacy laws, including the referral of surrogacy matters to the Family Court  and the Federal Circuit Court of Australia.

 

17. Removal of inconsistent language

 

A symptom of the current lack of uniformity of legislation is the variation in language. The common term, the internationally used term, for the intended parents is exactly that- intended parents. Other terms are also used:

 

·         For example, in Victoria and South Australia it is that of “commissioning parents”- as though they are buying an object; or

·         In the ACT it is that of “substitute parents”, when typically they are the one who intend to be parents, and are often the only genetic parents.

 

Orders made under State surrogacy legislation are called “parentage” orders, as opposed to “parenting” orders under the Family Law Act. Either an entirely different term should be used, to remove confusion, or if the Commonwealth is to legislate, the use of “parenting” orders throughout, orders as to surrogacy being a form of parenting orders.

 

Submission:
24. If national legislation is not pursued, the Commonwealth should lead the states to have nationally consistent terms used in surrogacy legislation, consistent with international norms.
25. “Parentage” orders should be renamed “parenting” orders, in accordance with the scheme of the Family Law Act.

 

18. Extra-territoriality of State and Territory laws

 

Currently, Queensland, NSW and the ACT extend their criminal laws  extra-territorially concerning commercial surrogacy. These laws are in the same category as child sex offences and terrorism, but involve intended parents seeking to exercise their human right to reproduce. They are not enforced. They are not effective. Victoria worked out that they don’t work back in 2008 and repealed its overseas ban. They ought to be repealed.

 

Submission:
26. The Commonwealth should legislate to remove the extra-territoriality of laws banning commercial surrogacy.

 

19. International lobbying

 

Australian intended parents travel far and wide in pursuit of their dream of becoming parents. Ultimately there is probably little that Australia can do directed towards other independent nation states, except to make diplomatic representations either bilaterally or in a multilateral environment.

 

There have been news media reports of exploitation of surrogates in some agencies in developing countries.

 

It is a requirement in Thailand and India that the anonymity of egg donors is supreme. The child will never get to know its genetic mother.

 

International best practice seeks:

 

·         To have an ongoing relationship between the surrogate and the child, wherever possible;

·         That the child knows who its egg donor is, at least when the child reaches the age of majority, and that it knows the medical history of the donor. Not all family medical history may be known to the donor at the time of donation; and

·         That there be no discrimination based on sexuality or relationship status.

It is desirable that if Australian intended parents are accessing overseas agencies:

·         That those agencies meet standards recognised internationally by prominent organisations like the Fertility Society of Australia or the American Society of Reproductive Medicine;

·         That children, intended parents, surrogates, their partners, donors, and their partners are not exploited.

 

Submission:
27. The Commonwealth should legislate for Australia to encourage overseas jurisdictions to ensure that appropriate standards are met for commercial surrogacy including:
a.         To ensure that IVF clinics and surrogacy agencies are licensed so that   they meet        quality standards similar to those of the Fertility Society of Australia or      other like organisations, such as the American Society of Reproductive         Medicine;
b.         To ensure that children, intended parents, surrogates, their partners,    donors,           and their partners are not exploited;
c.         To encourage the ability of intended parents, the children and the surrogates to         have long term relationships, with the aim of ensuring that the child knows        where they came from;
d.         That overseas jurisdictions do not discriminate against intended parents           based on their sexuality or as to whether they are married, de facto or       single.
e.         To ensure that children are aware of their genetic history.



[1] Buzzanca and Buzzanca 61 Cal. App. 4th 1410 (1998)
[2] Statements by a client to the writer, 2012 and 2013. The client was a surrogate for her daughter.
[3] International Covenant on Civil and Political Rights (1966), Article 24
[4] Ibid., Article 26

[5] Ibid.,  Article 23. A similar phrase appears in the International Covenant on Economic, Social and Cultural Rights 1966, Article 10 ; a phrase adopted nine years later in the enactment of the Family Law Act 1975, s.43(1)(b): “the need to give the widest possible protection and assistance to the family as the natural  and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children

 

[6] Ibid.
[7] Ibid., Article 24
[8] Lowe and Barry [2011] FamCA 625, [4]-[6] per Barry J.
[9] Ellison and Karnchanit [2012] FamCA 602, [104] per Ryan J.
[10] Hodas v Morin (2004) 614 NE 2d 320, 327 n. 16 (Massachusetts)
[11] Mr Farrell, second reading speech, Surrogacy Bill, Tasmanian Upper House, 23 August, 2012
[13] Ibid.
[14] John Weltman, Weltman Law Group and Founder and President of Circle Surrogacy, Ltd, Boston; April 2013
[15] Steven H Snyder, Steven H Snyder and Associates, chair of the American Bar Association, Assisted Reproductive Technology Committee, April, 2013
[16] With Ms Alexandra Harland, as she then was.
[17] Lusito and Lusito [2011] FMCAfam 55
[18] Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s.21. There is complementary legislation in each State and Territory as well, except for the NT. The maximum penalty is up to 15 years imprisonment. By comparison the criminalisation of overseas commercial surrogacy has a maximum of 1, 2 or 3 years imprisonment in those jurisdictions prohibiting that behaviour.
[19] I understand that Australians have also accessed egg donations in Argentina, South Africa, India and Thailand.
[20] However, there are surrogates who have not previously had children before, but have a strong desire to help others. I believe that provided that there is thorough screening so that both the surrogates and the intended parents are fully informed of the risks and proper consent is given, that there should be the ability for those women to be surrogates. To automatically exclude those women from being surrogates risks in my view a result of unintended consequences. In my view to have thorough counselling from experienced counsellors is part of the key to making a surrogacy arrangement work. A surrogate in this category might be, for example, the sister of the intended mother.
[21] I haven’t seen any great difference as to the relationship status of the surrogate. However, if she is in a relationship, the support of her husband or partner is essential.
[22] And typically is happy to help others, irrespective of their sexuality or relationship status.
[23] Psychologist, and co-owner of Growing Generations, Los Angeles, a leading surrogacy agency.
[24] Presentation in Sydney, September, 2012. The writer also presented- about surrogacy in NSW.
[25] Fertility doctor, associated with IVF Australia, Sydney, previously President of the Fertility Society of Australia, although these views were his own.
[26] Organised by Surrogacy Australia, September 2012. The writer was also a speaker.
[27] One of the two  litigated cases was reported: Re Evelyn [1998] Fam CA 2378; [1998] FamCA 55
[28] Kindregan, C.P. and McBrien, M., Assisted Reproductive Technology: A Lawyer’s Guide to Emerging Law And Science, 2nd ed., American Bar Association, 2011, p.157.
[29] Statement by a client who was a surrogate to the writer, 2012
[30] Assisted Reproductive Treatment Act 2008 (Vic.), s.40(1)(ab)
[31] Supra.
[32] Re Evelyn [1998] FamCA 2378; [1998] FamCA 55
[33] http://www.news.com.au/national-news/gay-parents-of-queenslands-first-surrogate-baby-are-rapt-but-birth-mother-has-bitter-regrets/story-e6frfkvr-1226052962974
[34] [2012] FamCA 602
[35] Factsheet 36a, viewed on 2/6/13 at http://www.immi.gov.au/media/fact-sheets/36a_surrogacy.htm ; Australian Citizenship Instructions are viewable at: http://www.citizenship.gov.au/_pdf/acis-jan-2013.pdf  viewed on 2/6/13
[36] At [54]
[37] At [127]-[131]
[38] Currently in an Australian context he would be likely right, though possibly liable to pay damages for issue estoppel.
[39] Cf. Verner and Vine [2005] FamCA 763
[41] A circuitous journey: s.70G, then s.4 “overseas child order” and “prescribed overseas jurisdiction”, then reg. 14, then, voila!, Schedule 1A to the Regulations.
[42] The two longest portions of that time total 15 months: 9 months for pregnancy and 6 months for sexually transmitted infection quarantine controls. However I had clients from Victoria who spent 18 months in various counselling and related processes before they could proceed with surrogacy.
[43] It is always alarming to know if a clinic does not follow these protocols.
[44] Or domiciled in NSW
[45] Surrogacy Act 2010 (Qld), ss 54, 56, 57; Surrogacy Act 2010 (NSW) , ss8,11,58 cf. Surrogacy Regulation 2011 (NSW), reg. 8; Parentage Act 2004 (ACT), ss. 41, 45
[46] See footnote 11
[47] The provision in NSW is that the offence may be prosecuted summarily. If a summary prosecution there is a 6 month time limit. If an indictable prosecution there is no time limit.
[48] Discussions that the writer has had with the Hon. Linda Lavarch and Associate Professor Jenni Millbank respectively, 2011.
[49] Re Mark (2004) 31 Fam LR 162
[50] Dudley and Anor & Chedi [2011] FamCA 502 – Watts J
[51] Dennis and Anor & Pradchaphet [2011] FamCA 123- Stevenson J
[52] [2003] FamCA 822
[53] Supra at [23].
[54] Supra.
[55] Justices Act 1886 (Qld), s52(1)
[56] Findlay and Anor & Punyawong [2011] FamCA 503
[66] “The rise of surrogate parenting: Family law and Human Rights implications in
[67] S.16(2)(g); s.22(2)(c)(ii).
[68] 13.1.
[69] See for example: Adoption Act 2009 (Qld), s.189
[70] However such a report is not required in Tasmania.
[71] Australia and New Zealand Infertility Counsellors Association. ANZICA has done a tremendous amount of work around the issue of surrogacy.
[72] Hansard 23 August, 2012
[73] In 2008
[74] [2012] FamCA 602
[75] At [13.2.1]
[76] Plus Gold Coast and Brisbane clinics offering IVF/surrogacy services to northern NSW.
[77] Statement by IVF clinic manager to the writer, May, 2012
[78] Crimes Act 1900, s.10C
[79] Re  Evelyn [1998] FamCA 2378; [1998] FamCA 55; [1998] FamCA 2379; [1998] FamCA 103
[80] S.10HA(2)(b)(iii)
[81] S.10HA(2)(b)(iv)
[82] S.10HA(2)(viii)(A)
[83] Surrogacy Act 2010 (Qld), s.22(2)(g)(ii) ; Surrogacy Act 2010 (NSW), s.32
[84] Based on Births, Deaths and Marriages Registration Act (Qld), s.11
[85] Primarily the County Court , although there can also be the option of the Supreme Court.
[86] Ss. 10G, 10H, 10HA(2)(ix); Victoria allows health insurance, but not disability or life insurance!: Assisted Reproductive Treatment Act 2008 (Vic.), s. 44; Assisted Reproductive Treatment Regulations 2009 (Vic.), s.10. Too bad if the surrogate dies or suffers injury due to pregnancy or childbirth.
[87] Viewed on 3 March, 2013 at http://www.unfpa.org/rights/rights.htm
[88] Article 2
[89] Article 7
[90] Article 2
[91] Article 26
[92] Article 16
[93] Article 2
[95] Commonwealth Powers( Family Law- Children) Act 1986 (NSW), s.3(1), (b), (c)

3 comments:

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