Tuesday, January 28, 2014

Australians using Thai surrogacy: when is a parent a parent?

Australian intended parents on bringing their baby to Australia after going to Thailand for surrogacy may or may not be the parents of the child. Most importantly, the surrogate may remain the mother of the child, with all that flows from that. It can make a significant difference if a donor is used. It can make a significant difference if the surrogate is single, married or in a de facto relationship, even if that de facto relationship is a lesbian relationship (or even single but not divorced).

But what does this mean in practice?

OK, here is a potted version of the problematic legal landscape for Australians if you undergo surrogacy in Thailand ( you will appreciate that I am NOT a Thai lawyer, and I always recommend getting advice from a Thai lawyer before proceeding with surrogacy there):

  1. It remains an offence for those ordinarily resident (or in NSW, domiciled) in NSW, Queensland and the ACT to enter into or offer to enter into a commercial surrogacy arrangement wherever it might be- including in Thailand, punishable by up to 1 to 3 years jail and/or a fine. It is also an offence in Queensland to make payment under that commercial surrogacy contract.
  2. It remains an offence for those paying a commercial egg or sperm donor anything other than reasonable expenses, punishable by up to 15 years jail. Depending on the Australian jurisdiction, and the peculiarities of the criminal law in that jurisdiction, this offence might be committed by those undergoing commercial egg or sperm donor contracts overseas, including in Thailand.
  3. Under Thai law the mother of the child remains the parent of the child. There is no law currently in Thailand concerning surrogacy. This may change this year or next year or at some later point. When it might change and what form the change takes are unclear. The Thai surrogate might be recognised as a parent under Australian law.
  4. An Australian female intended parent will never be the mother of the child in Thailand. Her name will never appear on the child's Thai birth certificate. However, she might be recognised as the mother of the child in Australia. Her name will only appear on an Australian birth certificate for the child if an adoption in Australia occurs, such as a step-parent adoption.
  5. It is extremely unlikely that an anonymous egg donor in Thailand might be recognised as a mother, and an anonymous sperm donor might be recognised as the father in Australia. They are not recognised as parents in Thailand.
  6. If the surrogate is married, then the surrogate's husband will be recognised under Thai law as the father. This includes if the surrogate is separated but not divorced. The Thai father would ordinarily be shown on the birth certificate. The surrogate's husband might be recognised as a parent under Australian law.
  7. If the surrogate is living in a de facto relationship, then her partner will not be a parent under Thai law, but might be recognised as a parent under Australian law- whether the partner is male or female.
  8. To bring the baby to Australia, the Australian intended parents need to show under the Australian Citizenship Act that the child was a child of an Australian parent.
  9. The definition of who is a parent under the Australian Citizenship Act appears is not necessarily who is a parent under other Australian law.
  10. When there is DNA evidence of that parentage, and clear evidence of a surrogacy arrangement, and the consent of the parent recognised under Thai law for the child to leave Thailand, then Australian authorities will recognise the child as an Australian citizen, who can then fly to Australia.
  11. DNA evidence is not strictly required, but if anyone needs advice before undergoing international surrogacy (and in my view every Australian intended parent undertaking international surrogacy ought to get advice from an Australian  lawyer first, given the risks) it ought to be someone doing so without the DNA link- or for that matter anyone where there might be a risk of there not being a DNA link because for example there might have been a slip up in the lab. The latter is not a theoretical risk, unfortunately.
  12. Presumably by this stage the baby is back in Australia. Armed with the birth certificate, the intended parents can presumably obtain Centrelink benefits, obtain a Medicare card, take the child to the doctor and enrol the child at school. However, the intended parents might not be the parents.
  13. Therefore the best avenue to straighten out the legality of parenthood is to either pursue adoption (WA is by far and away the best for this) or possibly apply to the Family Court or a Supreme Court for a declaration of parentage. While some lawyers might recommend this, I do not usually- due to costs versus benefits. I see the benefits as being low and the costs being very high, and the result being more theoretical than real. Most intended parents choose to take the risk and do nothing.
  14. The reasons why Australian authorities in Thailand make sure that they have the consent of the surrogate and her husband (if any) to the child leaving Thailand permanently is to ensure that there is not child trafficking, an illegal adoption in breach of the Hague Intercountry Adoption Convention (both Thailand and Australia are signatories), and that there has not been an abduction of the child in breach of the Hague Convention (both Australia and Thailand are signatories) - for a recent article I have written about the Hague Convention- see my post in the Australian Divorce Blog.
  15. There would be nothing to prevent the surrogate and or her husband or partner from applying in an Australian court about the child. The only way to minimise or to stop that is to adopt the child or to obtain orders under the Family Law Act.
  16. Rights of custody under the Hague Convention about child abduction are in the hands of the person in Thailand who is a parent under Thai law. Therefore within 1 year of the child leaving Australia, either the surrogate or her husband could apply for the child to be returned to Thailand. After a year, the Thais recognised as parents in Thailand could apply through the Australian courts under the Hague Convention for rights of access to the child. Just because it has never happened doesn't mean it can't.
  17. All intended parents should have properly drawn wills to make sure that they do not accidentally disinherit their child if their child is not their child as a matter of law.
  18. Passports Australia recognises the surrogate as having parental responsibility under Australian law, which means that the surrogate (and her partner or husband if they were together when the child was conceived) need to fill out any Australian passport application for the child, including any renewal every 5 years (although there are  means, which may be costly and difficult around this).

Now that you are thoroughly confused, how does Australian law recognise a parent of the child?

As I kept saying above, someone might be a parent of the child.

There are three ways the law can recognise someone as a parent:

  • by DNA- as the Department of Immigration and Border Protection ordinarily does, and as one Victorian case has said.
  • by intention- who intended to be the parents- as one WA case has decided, and that Victorian case also appears to have done.
  • by who gave birth- as State and Territory legislation says- and as has been decided under a number of cases decided in NSW.
Therefore under State and Territory law the surrogate (and if she has a partner or a husband- then her partner or husband) is the parent. Depending on which judge you have it would appear that different approaches are taken as to whether you or may not be a parent under Federal law. For further discussion of the complexity of who is or is not a parent, see these posts by me. I should add, finally, that if you have done something illegal by engaging in surrogacy it is possible that you may not be recognised as a parent, as one judge has said.

The situation is a mess. The situation may be fixed by the Government's (unknown) response to the (unknown recommendations of the) Family Law Council report, or by the proposed Hague surrogacy convention. We can but wait and see, fingers crossed.

Thursday, January 23, 2014

Thai surrogacy research dispels myths about surrogacy in Thailand

Research undertaken by Japanese researchers into the Thai surrogacy experience shows that Thai surrogacy is not as an alien experience as sometimes assumed in the West, and that many of the motivations of surrogates in Western countries are also mirrored in Thai surrogates.

Here are some comparisons I've prepared between surrogates in Australia and those identified by the researchers of surrogates in Thailand:

They get paid.
No- except expenses
Most have had children before.
A minority have not had children before.
Many like being pregnant.
They want to help people without children to have children.
They want to atone in accordance with Buddhist principles.
They believe that the child is not their child, but the intended parents’ child.
They favour gestational surrogacy over traditional surrogacy.
They have a choice as to intended parents.
They are subject to counselling and psychological screening before surrogacy commences.

The researchers said that while the motivation to earn money is significant, and while surrogates do not have the psychological screening available to surrogates in the US, it is far too simple to say that their bodies are being commodified. Many of the Thai surrogates interviewed had been educated up to junior high school, and even university, several were middle class, and all had access to the internet.

Several were seeking to pay off family debt, and some were seeking to atone, in accordance with Buddhist principles, for having had abortions. Many wanted to help childless people by providing the gift of life, as surrogates do elsewhere, such as in the US and Australia.

Yuri Hibino and Yosuke Shimazono, writing in Asian Bioethics Review, said that surrogates were paid AUD$7,000-14,000 for successful delivery. These amounts are significantly greater  than a recent case reported that an Indian surrogate was paid for surrogacy- the equivalent of AUD$4,000-4,700.

For example:

Rapeepan stated that the major financial need arose from her mother’s kidney
disease: “I need money, because my mother requires dialysis treatment.” A
36-year-old divorcee explained that, as a divorcee and a breadwinner for her
household, which included two children and her mother, she was responsible
for feeding her family. Vorawan, a 29-year-old divorcée with one child to
support, stated that she needed income to pay off a debt incurred by her
mother’s business failure but also needed to take care of her child. When she
learnt about surrogacy, it appeared to be a good solution, as surrogacy was
an attractive means to gain income and also fulfil domestic and care-giving
responsibilities. In her words, “I am going to do this a few times to pay off
my mother’s 2,000,000 baht debt.
Some surrogates were not motivated by money, but out of pity for intending parents:

While interviewees frankly admitted the significance of financial incentives,
most also emphasised that the financial incentive was not the sole motivating
factor for posting an online surrogacy advertisement.
They stated that they felt pity for infertile couples and wanted to help
them have a child. For example, Eakarapong, a 34-year-old clerk and mother
of two, stated: “I want some money to start a small business, and I want
money for my children.” However, she also noted that compassion for infertile
couples was a major motivating factor. In her words, “I really wanted to help
them after I read the details on the Internet.” Many other women expressed
a similar idea. “I found the details on the Internet; there are a many couples
who want a baby, so, I thought I could help them,” stated Noppadon. “I
feel pity for childless couples,” said Keamrat. Similar statements were made
by Nattanan, a 34-year-old mother of a 12-year-old child. Rapeepan also ex-
plained, “I would like to feel the pleasure of helping an infertile couple have
a child.”
Some women stressed that their deep compassion for infertile couples out-
weighed economic motivations. Ratchanon, a 33-year-old nurse helper, stated: “I
paid for my child’s education. I don’t want a new house. I’ve already got a
car. If I get the money, I will give it to my mom.” According to her, pity
for an infertile couple was a stronger motivating factor than was earning money,
and she added that she would accept a lower fee if the commissioning couple
could not afford the ordinary fee. Similarly, Nattakorn, a 28-year-old house-
wife, stated that she would use the money that she received from a commis-
sioning couple for her two children. She also stated that “I feel like helping
others rather than receiving money.”
According to the researchers:

We must identify relevant social and cultural motivations other than
“economic” concerns to fully understand why women enter into surrogacy
arrangements. In this regard, a tentative conclusion that can be drawn from
our results is that the cultural norm determining a woman’s social role as
wife, mother, and daughter has a significant effect on a woman’s decision to
become a surrogate mother. Notably, wanting to help their parents was often
mentioned by our participants as a reason for becoming a surrogate, and this
harkens back to the cultural significance of the role of women in the Cognatic
kinship system in Thai society. The filial duty, conceived as repayment of a
debt incurred by being born and nourished, is imposed on children of both
sexes, but daughters are expected to take a more active role in caring for ageing
parents than are sons. This gender role is reinforced by a popular Buddhist
notion that a son can and should repay debt by becoming a monk, as offering
a son to Sangha is one of the most significant merit-making acts for parents
(Van Esterik 1982: 77; Keyes 1984: 227–30). Our interviewee’s statements
suggested that surrogacy is often linked with this gender role of women as
daughters. From a comparative perspective, the Indian surrogates described by
Pande and Vora, the Israeli surrogates described by Teman, and the American
surrogates described by Ragone did not mention a desire to help their parents
as a reason for becoming a surrogate as frequently as did the Thai surrogates
in our study. Another cultural factor that motivated a woman who had had
an abortion to become a surrogate was tan-bun(merit-making). One study
found that one-third of surrogate mothers had experienced abortion and this
led to the suggestion that reparation for having aborted a foetus may be an
explicit or implicit motivation for becoming a surrogate mother. This obser-
vation implicates surrogacy as a gender issue across borders.

Thursday, January 16, 2014

Just because you're a family lawyer doesn't mean you know about surrogacy

Several years ago I was contacted by a prospective client, I'll call her Peta, who wanted to go through surrogacy so that she and her husband could have a child. She quizzed me at some length about what I knew about surrogacy, and in particular what I had done. I won't say it was a gruelling Q and A, but it was thorough.

Each time I answered a question, I would get a cynical response, checking whether I really knew about what I was talking about.

After about 20 minutes of being checked out by Peta, she said that she would ring around the other 20 law firms named on that IVF clinic's list who said that they did surrogacy. I told her that unlike some of the other clinics that had decided a much smaller list of firms, such as my firm, this clinic had written to all the major family law firms in town and asked them whether they wanted to be on the list. The clinic had ultimately put 20 family law  firms, including mine, Harrington Family Lawyers, on the list.

And that was that. I thought I would never hear from Peta or her husband ever again. I thought: "tyre kicker". I am delighted to say that my initial impression was wrong. A few days or a week later, Peta called back. She said that she wanted me to act for her and her husband in surrogacy. I asked her what had changed her mind. She said: "I phoned all the other firms. They hadn't done surrogacy before, but were prepared to learn." Then came the refrain that I have heard from so many clients over the years contemplating undertaking surrogacy or egg donation: "But why should we pay to educate our lawyer? Why don't we just go to someone like you who knows what they're doing."

And that's the reality of surrogacy and egg donation work. It can be highly technical work, but is unlike much of the rest of family law. Just because someone is a family lawyer does not mean that they know anything about surrogacy. Engaging in property settlement disputes, or litigating about children is different to the positive, truly collaborative experience of helping intended parents make a baby. As well, the laws about surrogacy and egg donation are a maze, and most family lawyers don't know them.

Why pay to experiment? While most family lawyers know nothing about surrogacy and egg donation, I have helped hundreds of clients achieve parentage through surrogacy or egg donation. My first surrogacy case was way back in 1988!

As an illustration of my point that accredited specialist are not necessarily surrogacy lawyers, both my law partners are like me accredited family law specialists. My partner Julie Harrington like me has been an accredited family law specialist since 1996. My other partner, Bruce Provan has been accredited since 1999. However, neither of them as they readily admit, know really anything about surrogacy.

I was reminded of how being an accredited specialist in family law does not necessarily make a surrogacy lawyer recently when I saw some clients, I'll call them George and Martha who wanted to undergo a known egg donation, and wanted an egg donor agreement in place. They phoned the Law Society. They told me that they were given the names of several accredited family law specialists. When George and Martha phoned around, they were told: "Well we haven't done that before, but we are prepared to learn." You could imagine George and Martha's response: "But why should we pay to educate our lawyer? Why don't we just go to someone who knows what they're doing."

When they contacted me, I was able to put their minds at ease, because I knew what I was doing. I did not have to be educated about it.

If you are contemplating surrogacy or egg donation, give your intended lawyer the comprehensive list of questions about your problem. If they don't know what they're doing, but are prepared to learn, go to someone, like me, who does. After all, professional indemnity insurers tell lawyers that we should only act within the area of our expertise. Clients should expect nothing else.

Tuesday, January 14, 2014

Surrogacy: change is coming, but we don't know what it will look like

There are likely two big changes going to occur in surrogacy practice in the next couple of years but currently what form they will take and when they will happen is not known.

However, like the iceberg that sunk the Titanic, we shouldn't wait too long before we realise the size of the challenge that each may present.

Change 1: Australian law reform

In December, in accordance with its schedule, the Family Law Council handed its report to Attorney-General George Brandis. The report is about likely changes that might be made to Australia's surrogacy laws, including how the Family Law Act meshes with State and Territory legislation, and hopefully how the various Commonwealth laws mesh concerning surrogacy (as opposed to the piecemeal approach we have now).

It is not known yet what the Council has recommended, nor more importantly what the Government's response is going to be. It is likely that there will be change, but again it is not known how quickly and what form that might take.

The Family Law Council is a statutory body, whose members are appointed by the Federal Government. Members comprise mainly family law professionals, such as judges, counsellors and lawyers. Reports of the Council are usually regarded very highly by Governments of both hues, and often result in legislative change.

Just to see what a mess I think that Australia's surrogacy laws are at the moment, here are my two submissions that I made to the inquiry.

Change 2: The Hague convention on international surrogacy

It is likely that in the next couple of years or so that there will be a new convention covering international surrogacy. This will either make the journey for intended parents and their children harder or easier, but what is clear is that it will make the journey different to the current journey.

The Hague Conference on Private International Law  (the international body at the heart of Hague Conventions) has been taking soundings from member nations (such as Australia) and from interested lawyers (such as me) and other interested parties, such as surrogacy agencies, as part of a research project to find out what is happening with international surrogacy at the moment.

Once that process is finished, then it is likely that member nations at The Hague will debate and then gradually agree upon the terms for a new Hague Convention- this time covering the rules for children moving from country to country (under what is called private international law) and under international surrogacy arrangements.

Again, what form it takes is not known and when change may happen is not known, but what is certain is that change is going to happen, and like Titanic's iceberg will quickly be upon us. Certainly one model championed by me and some fellow members of the American Bar Association's surrogacy committee is for recognition of orders made in one country in the other country- making a certain and hopefully quick and cost effective process. I need to make clear that the paper we wrote is the opinion held by my colleagues and me and does not represent the position of the American Bar Association.

Approval for that position has been sought and is pending. Whether approval is ever obtained is of course up to the members of the American Bar Association.

Those considering undertaking international surrogacy arrangements should be getting expert advice as to what impact The Hague convention might have on them.

No DNA for surrogacy can make a hard journey

It is essential to get legal advice first for those contemplating going overseas and making babies through surrogacy, but not having a DNA link with a parent who is an Australian citizen. Australian legal advice. Not the advice of the clinic overseas. Not from a generalist lawyer here, either. But someone like me. As I have written before, don't believe what you have seen on the internet (excuse the irony here) and a birth certificate does not necessarily make you a parent in the eyes of the law.

It may sound like I am banging my own drum, and yes I admit that, but to go overseas for surrogacy and not have a DNA link can be extremely risky.

It may seem obvious (and for the moment I am ignoring the important fact that in Qld, NSW and the ACT you can go to jail for undertaking surrogacy overseas), but if you go overseas for surrogacy, authorities here will be rightly suspicious that you might have engaged in buying a baby.

No DNA link? Of course, so the grey mater goes, you are just engaged in child exploitation.

Think I'm exaggerating? Remember the case of Australian paedophile Peter Truong and his partner Mark Newton- jailed in 2013 for acquiring a child to be made available to a paedophile ring. This boy was bought from a woman in Russia- and then passed off to Australian authorities as surrogacy. Subsequently there were custody and adoption orders overseas. On the face of it a legitimate surrogacy with two loving (gay) parents. In reality, the sordid purchase and exploitation of a child. There was no genetic link by either man with the child- he was bought and sold like any other commodity.

Australian authorities, and especially the Department of Immigration and Border Protection, are quite rightly charged with trying to stamp out this abuse.

For this reason, the Department took the view that if a child were born overseas to an Australian parent and wanted to claim Australian citizenship, there had to be a DNA test to prove the link between the child and the parent. No DNA link, no citizenship.

That position changed in 2010 when the Full Court of the Federal Court held that a parent is someone that society ordinarily considers to be a parent, and is not limited merely to DNA, as I have blogged many times before. Thus a man who marries a woman who is pregnant to another man, with the aim of being named as the father on the birth certificate, and raising the child as his own is a parent. A man who believed for 30 years that he was the father of a child, paying child support, and seeing the child regularly, as well as telling his family that he was the father, but turned out was not the genetic father of the child- is also a parent.

As a result of this decision it is no longer necessary to show that there is a DNA link. For example, if the IVF clinic used the wrong sperm so that there is no genetic link, then it may still be possible to show that the child had an Australian parent.

BUT- and this is a big but - it is now assumed by some intended parents that it makes no difference if there is a genetic link or not, and that if there is no genetic link it is a straightforward process to obtain Australian citizenship for the child.

It mightn't be. It can be far from straightforward when there is no genetic link. Handled poorly and you might deprive your child of Australian citizenship. The Department has issued internal guidelines as to citizenship. These are not the law, but  guide officers about how they exercise discretion. The key phrase to be remembered when you are seeking to obtain Australian citizenship for your child but there is no DNA link is "utmost scrutiny"- the standard to be applied to applicants, to make sure there is not exploitation and abuse of children.

I don't think that the phrase "utmost scrutiny" can be downplayed. Fluff that- and you fail to make your child a citizen, with potentially devastating outcomes for your child.

Get it right first time. Get advice before you start the process. Help minimise your legal costs and your stress. Prevention, after all, is better than cure.