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.

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