Thursday, October 24, 2013

Why I am a surrogacy lawyer

I get asked from time to time by clients and other people why I am a surrogacy lawyer. The short answer is because I love doing what I am doing- and helping others become parents, but the long answer is a bit more complicated.

When I was at law school back in the 80's I studied family law. I never thought I would practice in that area: after all it was - sniff- about people, and not about property, the traditional preserve of our common law. I was much more interested in trusts of all kinds- resulting, implied, express and constructive, and not in ephemeral concepts of justice- derided at law school by some as "palm tree justice".

When I got out into practice, I discovered very quickly that I was bored rigid about much of commercial law, and ironically liked the challenges of family law- because I was helping people. I saw that what I did could change people's lives. I could help adults and children become safer, or have a roof over their heads.

And then in 1988 came one of those clients who simply takes your breath away. I was in my office in suburban Brisbane when a client came through the door who made me gasp. She told me that she had been paid $10,000 by a couple to have their baby. She wanted to know if she could keep the money and the baby- as she had decided that she liked the child and wanted to keep it. No IVF clinic was involved. This was what we now call traditional surrogacy. The client was not only the surrogate but the genetic mother of the child. The child was genetically half hers.

My advice was clear, although I was appalled by her actions, and in particular the impact on the childless couple, whose dream she had hijacked: she could keep the baby and the money. She could keep the money because Queensland's newly passed Surrogate Parenthood Act 1988 made what they had done illegal. This meant that any contract was void- and the money as lawyers say fell where it lay. In other words, she had been paid the money and could keep it.

And the child? She could keep the child too (from recollection a boy) because if they were to challenge her in court for custody (when we did call it custody), the intended parents may or may not succeed, but were at risk (as was she, but she was not the one wanting to start a case) of being prosecuted and then thrown in jail.

A few years later in 1992 I acted for my first LGBTI client, a woman who came out of the closet of her marriage. Since then I have acted for many gay and lesbian clients, some bisexual clients and the occasional trans client.

It might seem obvious- but gay and lesbian people cannot ordinarily conceive children. This means that for these clients how to conceive a child is not simply a romp in the back of a Commodore on a Saturday night, but an at times carefully planned exercise walking through the labyrinth of laws that were and are struggling to keep up with the changes of society.

Step by step from that process I started to advise clients about surrogacy, which in most parts of Australia back then was illegal. Step by step from that, I have acted for clients about surrogacy and related fertility questions.

Although many of my surrogacy clients are gay (men after all do not have a uterus), most are married couples. I have also acted for lesbian couples, and single men and women who want to be parents (and surrogates and their partners, donors and others too).

Even though I am not one of the central players- as after all I am merely a lawyer on the sidelines, not one of the intended parents, nor the surrogate or her partner nor the donors- in my key role I get a great deal of satisfaction of removing people's pain in the inability to have children, by helping them walk through the labyrinth to have children.

To see that pain lifted and turned into love and joy after a baby is born is  extraordinary. I am very lucky to help out in this most intimate of moments.

Many years ago when I was looking to have children I had the misfortune of not being able to have kids straight away. I had always thought I was going to be a dad. I loved my dad to bits and I wanted to have children, just like he had had children. It was just a question of when. And yet when it came to trying, it just didn't work. It became a question of if. If you can have children can be a truly scary prospect. It is on another planet from when you can become a parent. Parallel universes. Suddenly all the certainties went. Fear can take over. The fear of failure. The fear of not becoming a parent.

And it's one thing for there to be something wrong with your partner's body- that's sad, but empathy is there- but when it is your body, suddenly it feels as though you are imperfect- how come God picked on me? What have I done wrong, and all those irrational thoughts.

And then we got lucky- and breathed a huge sigh of relief. Once kids come along they change your life forever. I have been lucky enough to be a dad. I haven't been on the journeys of my clients. Each journey is different- but I have experienced that pain, the uncertainty of ever becoming a parent. It's not nice.

So there it is- I like helping real people achieve the most amazing miracle known on the planet- the miracle of the birth of a human baby. How lucky am I?

Wednesday, October 16, 2013

Family Court: South African man is a parent in surrogacy case

Since the invention of Austlii, it can be very hard to keep abreast of all the recent family law cases. I am thankful to Anthony Brien of Gay Dads NSW for alerting me to this case.

In Carlton and Bissett, Mr Bissett was  both a South African and Israeli citizen. He pursued an altruistic surrogacy in South Africa, where it is legal. A surrogacy arrangement was signed and a South African judge then made an order which meant that when the children were born that Mr Bissett was the sole parent of the children, the surrogate relinquishing her rights.

Following the order being made, medical treatment started and the children were then conceived.

During the course of the pregnancy, Mr Carlton, an Australian resident but originally from South Africa, happened to be visiting South Africa, when he met Mr Bissett. They fell in love and became an item.

Justice Ryan held that the question of whether Mr Bissett was a parent was:

Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.

Her Honour then said that under South African law Mr Bissett was the parent.

After examining the labyrinth under the Family Law Act  as to whether Mr Bissett was a parent, her Honour made a declaration of parentage in favour of Mr Bissett:

It will be apparent that I have accepted that Mr Bissett is able to rely on the general presumptions of parentage notwithstanding the provisions of s 60H [donation to a couple] and s 60HB[ State based parentage orders] , both of which were inserted into the Act after the general presumptions. Those provisions are not directed to children born in another country to a person or people ordinarily resident in that country at the time of conception and birth. (emphasis added)

It will be interesting to see how expatriate Australians may be able to take advantage of what her Honour said.

Registration of overseas orders

It is possible to register with the Family Court overseas custody orders made in specified jurisdictions so that they have the same force and effect as if they had been made under the Family Law Act.

Her Honour rejected the possibility of registration because South Africa was not a prescribed overseas jurisdiction. What she did not do was to reject the possibility of registration on the basis that the Family Court could not make a surrogacy order i.e. the view that the only orders that could be registered were like for like. Her Honour was silent on this point.

I mention this because in the past Family Court registrars have rejected overseas surrogacy orders from prescribed jurisdictions- as I wrote about in my initial submissions to the Family Law Council- because they were not like for like- as the Family Court could not make a surrogacy order, therefore it could not register an overseas surrogacy order.

In light of her Honur's silence on the point, it may now be possible to register those overseas orders, such as from California.

Let's see.

Family Court says-sperm donor is a dad

Back in June, I wrote in my supplementary submissions to my main submissions to the Family Law Council about a recent case in the Family Court.

Recently I was asked by Rodney Cruise, convenor of Gay Dads Australia, to write about the case again.

The case is called Groth and Banks. Justice Cronin said that the sperm donor was the legal father of the child when the recipient was the genetic single mother.

The case emphasises three things:

  1. The rules regarding who is or is not a parent are remarkably arcane, and seem to be changing. Those who thought the sperm donor was not a parent but now may be a parent-  whether they like it or not.
  2. Honesty between the couple was essential- but lacking in several respects.
  3. Stated intention was trumped by genetics.
The facts

Mr Groth and Ms Banks had been in a relationship. They split up.

Sometime after they split up, Ms Banks asked Mr Groth to supply sperm so that she could become a mother. Mr Groth agreed. They went to an IVF clinic in Melbourne. They told the clinic they were a couple. They weren't. Mr Banks signed a consent form to say that he did not intend to be a parent, but was a donor. The form was provided by the clinic in accordance with Victorian law.

After his partner saw some messages and then questioned Mr Groth did it tumble out as to what he had done. He then asked the Family Court to find that he was a father.

The decision

Justice Cronin determined as a matter of statutory drafting that the Family Law Act envisages that there are two biological parents of a child and that unless there is a displacement under the Family Law Act a sperm donor can be a parent.  His Honour determined that a known sperm donor to a single woman was a parent; section 60H of the Family Law Act not applying. 

His Honour was of the view that the provisions of the Family Law Act overrode the relevant Victorian legislation that declared that the sperm donor was not a parent.  Therefore his Honour did not consider the consent form signed by the sperm donor in which he acknowledged that he was only a donor and not a parent. 

This decision has sent a shockwave through IVF clinics as it clearly states that known donors in certain circumstances are no longer donors but are parents and that as a result may have rights and responsibilities under the Family Law Act, have a liability to pay child support and their child may have a right of inheritance.

His Honour stated:

“In Re Mark: An Application Relating to Parental Responsibilities [2003] FamCA 822; (2003) 179 FLR 248; (2003) 31 Fam LR 162; (2003) FLC 93-173, Brown J considered the differing positions of a sperm donor who was unknown or anonymous, and a donor who had entered the process with the intention of fathering a particular child. Her Honour held that a person in the latter position was rightly considered a “parent” for the purposes of the Act. If this were not the case, there would be no need for legislation such as the Status of Children Act 1974 (Vic) to remove the rights and responsibilities that might otherwise attach to anonymous or unknown donors.


Brown J reproduced the Oxford English Dictionary definition of a parent, being “a person who has begotten or borne a child”, which was also relied upon in Tobin. In Re Mark, the man had donated his genetic material with the express intention of fathering a child he would parent. Moreover, her Honour found at [59],

            [t]he fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in       utero through sexual intercourse, is irrelevant to either his parental role or the genetic       make-up of [the child].

The applicant here submits that the same course should be taken in this case. His argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life. Concerns of public policy, such as those raised by Guest J in Re: Patrick (An Application Concerning Contact) [2002] FamCA 193 at [298] that unknown sperm donors could be considered “parents” under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.


Thus, the interpretation of “parent” in the Act allows each case to be determined on its particular facts.


The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law. I return to those exclusions below.


Part VII of the Act contains multiple references to the parents of the child as “either” or “both”. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i),


61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.


The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes."


There are three ways of saying who is a parent:


·         By genetics;


·         By birth; or


·         By intention.


The approach taken by his Honour was by genetics.  The basis on which Mr Groth was determined to be a parent relied on genetics.  Nevertheless his Honour distinguished between known and anonymous donors.  It is my view that if a genetics based approach were to be taken then the intention of the donor is irrelevant.  Following the analysis to conclusion, anonymous donors to single women would be considered to be parents because each man is the “biological progenitor” of the child.
What is clear to me is that there may be many known sperm donors to single women who are now parents of those children, including being liable to pay child support, whether or not they intended that, and whether or not they or the mothers want them to be .


Update on Victoria v NSW surrogacy: move over Mr Asia

One of the fascinating things about practising in surrogacy is that things can change quickly.

Recently I blogged about children being different south of the Murray. Essentially if the intended parents lived in NSW (so that the surrogacy arrangement was a NSW surrogacy arrangement) but the child was born in Victoria, while the Supreme Court of NSW parentage order would mean that the intended parents would be named as the parents of the child for all purposes under Australian law, they could not be named on the Victorian birth register. Clearly ludicrous!

Some months ago I wrote to the NSW and Victorian Attorneys-General seeking that this be rectified.

I am pleased to advise that this has now been fixed by them- by a less than obvious path.

What will now happen in those cases is that the NSW Supreme Court will still make a parentage order for NSW intended parents when the children were born in Victoria. The NSW Registrar of Births, Deaths and Marriages will then issue a new birth certificate showing the new parents (but no doubt showing that the child was born in Melbourne, etc. in Victoria).

The NSW Registrar will then write to the Victorian Registrar of Births, Deaths and Marriages who will then destroy the Victorian records- so that there will be only one birth register for the child. Presumably this will prevent a repeat of a fraud used by Mr Asia. Terrance John Clark, aka Mr Asia was a notorious criminal (later featured in Underbelly) who went to cemeteries to find the details of children who had died - so that he could then get false passports in their names. Once the practice was exposed, thankfully the rules were tightened up to prevent that fraud. If two birth certificates remained in existence- with different parents- it might be possible to repeat that fraud.

Surrogacy debate in Melbourne

The annual Louis Waller lecture commemorates the significant contribution Emeritus Professor Louis Waller has made to the field of assisted reproductive treatment. This year the Victorian Assisted Reproductive Treatment Authority (VARTA)  presents a conversation starter'Both sides of the coin', exploring the contentious issue of remuneration for donors and surrogates.

Some argue that the lack of compensation for donors and surrogates in Australia is driving Australians overseas in search of donors and surrogates. Others contend that donation and surrogacy should be purely altruistic, and that remuneration may cause more harm than good.
Two prominent legal academics, Professor Jenni Millbank and Dr Sonia Allen, will explore the arguments for the benefit of the public, health professionals and academics.

Places are limited. At last count there were only 9 tickets left!

Russell Kennedy Pty Ltd
Level 12
La Trobe Street

31 October

Cost: $28

To register:

 And I'm going to throw my two cents in. In my view the numbers tell the story. Jenni Millbank's figures show that about 1000 children were born in the year ended 30 June 2012 to Australian intended parents in India and Thailand alone. The link to that story is on my Facebook page: or my Twitter feed:

That number says to me clearly that our system doesn't work, a point I made in my submissions to the Family Law Council . In my view our system needs to change because at the moment if it were working, then intended parents would not be voting with their feet.

If we are so keen to protect women in developing countries, why do we not make it easier to undertake surrogacy at home?

In recent discussions I had with prominent US surrogacy lawyer John Weltman, John and I estimated that about 4000 or 5000 children were born in international surrogacy arrangements each year - where they are born in one country and move to the country of their intended parents.

That means that the number of children born to Australian intended parents in India and Thailand alone represents 20-25% of all children born worldwide through  international surrogacy arrangements, meaning that we are ground zero- and demonstrating our failure as a nation to adequately regulate surrogacy.

Donor seminar in Brisbane

This Saturday there will be a donor seminar in Brisbane, aimed at intended parents and donors.

The seminar is being organised by fertility counsellor Antonia Lockitch with a lawyer and an egg donor also as speakers.

Despite the address, it's actually in a great location- overlooking the iconic Alan Border Field.

Registrations are essential.


When: 8.30 am for 9am- finishing at 3pm this Saturday 19 October.
Where: Pavilion Function and Conference Centre, 1 Bogan Street, Breakfast Creek
Cost: $60 per person, $100 for couples
Materials, morning tea and lunch included

How to register: or 0418 668 448

Wednesday, October 2, 2013

Surrogacy in India

Despite it being a criminal offence in Queensland, NSW and ACT, many Australians continue to undertake commercial surrogacy in India.

The San Francisco Chronicle has written a long eye opening article about the surrogacy experience of an American couple in India, and the impact on the surrogate. It is an extraordinary article. Chapter 1 is here: