NSW is also undertaking a review of its Surrogacy Act 2010. I have also made submissions to that review. Here are my submissions:
30 April 2014
Department of Attorney General and Justice
New South Wales
By email: firstname.lastname@example.org
Review of Surrogacy Act 2010
This is my submission as to the Surrogacy Review.
1. Who am I?
I am the leading surrogacy lawyer in Australia. I have advised hundreds of clients in all 8 states and territories as well as clients from 15 countries overseas about proposed surrogacy arrangements. I have or am about to engage in proceedings for parentage orders in Queensland, New South Wales and Victoria.
Many of my ART/surrogacy clients come from New South Wales.
I am a partner of a Brisbane boutique family law firm. I was admitted in 1987 as a solicitor of the Supreme Court of Queensland, in 1989 as a solicitor of the High Court and in 2013 as a solicitor and barrister in South Australia. A copy of my current curriculum vitae is enclosed.
In 2012 I obtained a world first precedent that conception is the act of pregnancy, not that of fertilisation.
I have given evidence to the Tasmanian Upper House inquiry concerning that State’s Surrogacy Bill, which resulted in changes to the bill before it was enacted. I have also spoken to both Queensland and New South Wales MP’s regarding those States Surrogacy Acts. I was the co-author (with now Federal Circuit Judge Harland) and the principal researcher of an article on State by State Surrogacy Laws (in 2011). I chair the Surrogacy Australia Legal Committee. I am one of three Australian Members of the International Surrogacy Forum and I am one of two
International representatives of the American Bar Association’s Artificial Reproductive Technology Committee. In my role with that committee, I hold the responsibility for drafting a
position for the American Bar Association as to the proposed Hague Convention on international surrogacy. I am a member as well of various legal and family law organisations. This submission is my own. The opinions I hold are my own and not of those of any organisation of which I am a member or of which I hold a position.
2. Family Law Council
I note that last year then Attorney-General Nicola Roxon asked the Family Law Council to review the interplay between the Family Law Act and the State Surrogacy Acts and related legislation. That report was presented to the Attorney-General Senator George Brandis QC. The recommendations of that report are unknown and the position of the Federal Government in response to that report is unknown. It would be helpful in framing the review to know the outcome of that report and the position of the Federal Government.
In the course of that review I set out the various factors as to why people undertake surrogacy overseas and gave many examples as to the current problems with surrogacy law in Australia, including in New South Wales. A copy of my two submissions dated 3 June 2013 and 28 June 2013 to the Family Law Council are enclosed.
3. National Health and Medical Research Council
I note that the council, which through its Ethical Guidelines in effect licences IVF units nationwide, has commenced a review of the portion of the Guidelines covering donors and surrogates including asking as part of the preliminary process as to whether donors and surrogates should be paid.
4. What is right with the Surrogacy Act ?
The Surrogacy Act quite properly allows for the legalisation and regulation of surrogacy. It sets in place a framework, along with other legislation, to allow the regulation of surrogacy.
It is imperative that surrogacy is able to be properly regulated. Regulation brings with it one would hope the removal of exploitation – of surrogates, of intended parents, of donors and of children. Regulation should also bring with it the removal of child trafficking.
The trick with regulation is to ensure that in meeting these laudable aims, and enabling the recognition of children born through surrogacy, that it doesn’t become so heavy handed that it defeats its purpose.
4.1 No discrimination
There are real advantages with the Surrogacy Act as opposed to interstate legislation. Those advantages include:
1. The Surrogacy Act does not discriminate. In this respect it takes a similar position to that in Queensland and Victoria. It does not cast judgment about who can and who cannot be a parent. This is in contrast to the other jurisdictions:
· the ACT where intended parents must be a couple
· Tasmania – where ordinarily all of the parties must come from that State;
· South Australia where the intended parents must be married or in a heterosexual de facto relationship – thereby excluding gay and lesbian couples and single intended parents; and
· Western Australia where the intended parents must be married or heterosexual de facto couples or lesbian couples or single women – thereby excluding gay couples and single men.
The Act also takes an inclusive approach as to expenses. When the then Attorney-General George Hatzistergos stated that he would be following the lead of the Surrogacy Act 2010 (Qld), I had expected that the definitions used for expenses would be identical. This was not the case and it is a terrible shame that identical language is not used in different States.
The language used for expenses is a matter with which the parties must comply. If they do not then they risk entering into a commercial surrogacy arrangement, with the consequence that they are committing an offence.
There appear to be an assumption at the time of the drafting of the Bill that all those who enter into a surrogacy arrangement would come from New South Wales. The reality is that there have been a number of interstate matters either with orders made, underway or contemplated in which, for example, the intended parents live in Queensland and the birth mother in New South Wales or the intended parents live in New South Wales and the birth parents in Victoria.
It would be ideal to have identical language rather than the differences in language. Having said that the definition of expenses is sufficiently wide to allow expenses to be met.
In my view it is essential that the surrogate be cherished for the gift of life that she provides, especially when she potentially puts her life at risk. It was recently estimated by leading fertility specialist Dr Warren DeAmbrosis that a woman giving birth dies in one in ten thousand live births. It would seem extraordinary with those odds that any woman would ever volunteer to be a surrogate.
It is essential, accordingly, in my view that adequate insurance is provided for surrogates, namely life insurance, health insurance and disability insurance. The last can be difficult or impossible to obtain for women who are not in the workforce or self-employed.
In South Australia, by contrast with the situation in New South Wales which allows all these insurance products to be made available to surrogates, it is in effect an offence to provide life insurance to the surrogate.
4.4 No overarching bureaucracy
Another benefit of the approach under the Surrogacy Act is that there is no requirement to obtain pre-approval from a state regulator, contrasting with the position in each of Victoria and Western Australia. In my view the stated advantages of having a State regulator are in fact overstated and the cost burden to both the taxpayer and the users concerned is in my view unnecessary.
In my view IVF clinics are very concerned to ensure, quite properly, that at all times they meet their licencing requirements, including those of ensuring that they are compliant with the National Health and Medical Research Council Ethical Guidelines.
I have had the privilege of dealing with four Sydney IVF clinics as to surrogacy/ART matters, In my view all the clinics take their legal responsibilities very seriously, and strive to comply with the spirit, as well as the letter, of the law.
4.5 Supreme Court
I also believe that the Surrogacy Act gets it right in requiring that applications for parentage orders be made in the Supreme Court. This is the superior court of record of New South Wales and was always the court that exercised parens patriae jurisdiction it is clearly the appropriate court in which these applications ought to be made pending of course any potential referral of power to the Commonwealth so that these applications could be made in the Family Court of Australia or the Federal Circuit Court of Australia. By these applications being made in the Supreme Court if there is any defect in any application, there is the potential at least for the Supreme Court to exercise its cross-vested power. It is a pity that in general other States, such as Queensland and South Australia did not see fit to invest their Supreme Courts with this jurisdiction.
4.6 In Chambers
The one criticism that I would have about the Supreme Court process, as I have brought parentage order applications successfully in the Supreme Court as well as in the Children’s Court of Queensland and have a matter pending currently in the County Court of Victoria – is that the proceedings in the Supreme Court are in chambers. This means in effect that the various paperwork including application and affidavits are filed in the Supreme Court and then about 3 weeks later the orders issue. Whilst this may be appropriate to the rigorous demands of that Court, I would suggest that a better approach, being more inclusive of the surrogate and her partner and of the intended parents is that there be a requirement for the appearance to occur in
Court. Having had the alternate experience of having to attend at Court and having talked to colleagues in Victoria, it is my view that it is certainly better for all concerned that there be a court appearance. In my view it is likely that these applications will largely be made by solicitors on the papers with extensive submissions so they should be a fairly quick process, assuming that all the requirements of the legislation have been met and especially that the best interests of the child have been provided for. There is not a much larger cost in going to court as opposed to doing the matter in chambers. Most of the cost incurred by the parties at that point of the surrogacy arrangement is in preparation of affidavit material, with the obtaining of reports and the preparation of submissions.
For intended parents, birth mothers and their partners, the appearance in court is both nerve wracking before court and a wonderful release afterwards. It is a clear recognition by society that this baby and all who sail with it in the ship of that surrogacy arrangement have the imprimatur of the State. It is a joyous experience which is simply not matched by the matter being dealt with in chambers. The matter being dealt with in court has a richer, more inclusive nature to it and I would strongly urge that it be adopted (whether under the Surrogacy Act or appropriate practice direction or other rules of the Supreme Court) to allow the procedure to occur in court as opposed to in chambers.
There are two clear advantages that the Surrogacy Act has over some interstate equivalent legislation:
1. There is not a requirement for treatment to occur in New South Wales.
2. There is not a requirement for the parties to reside in New South Wales before they enter into the surrogacy arrangement.
Place of treatment
Like Queensland, but unlike Victoria, in effect Tasmania, The ACT, South Australia and Western Australia there is no requirement for treatment to occur in New South Wales. This may not seem of great significance, but it is of great advantage in allowing flexibility for intended parents.
It might be noted that if the model in other States (other than Queensland) were adopted the ability to undertake this treatment overseas would not be available to them.
It might also be noted that the costs of IVF treatment in California are only marginally higher than that in Australia for surrogacy (as there is no taxpayer subsidy here).
There are a good number of expatriates who wish to undertake surrogacy in Australia, typically with family or friends. A requirement that the Surrogacy Act has, in common with Queensland, but not in common with the other jurisdictions is a requirement that the intending parents reside in New South Wales at the time of the making of the parentage order. This means that there is not a requirement for the intended parents to live in New South Wales at the time of entering into the surrogacy arrangement. This approach has flexibility as well as appropriate regulation.
I am pleased that the Surrogacy Act has adopted the language of “intended parents, birth mother, and birth mother’s partner”. In doing so it has adopted international norms and has reflected the reality of intended parents. It has not fallen into the mistake, as I see it of appearing to be a commercial transaction such as Victoria’s words of “commissioning parents” or demeaning of the intended parents such as in the ACT where they are called “substitute parents” or that of Western Australia where they are called “arranged parents”.
5. What is wrong with the Surrogacy Act
The Surrogacy Act and related legislation whilst regulating surrogacy does so in such a
manner that in effect it forces people to undertake surrogacy somewhere else.
Changes required for surrogacy in New South Wales
1. Taking a national approach;
2. The ability to advertise for a surrogate;
3. The ability to advertise for a donor;
4. The ability to pay for a donor;
5. The ability to pay for a surrogate;
6. The ability to undertake commercial surrogacy overseas.
5.1 Taking a national approach
Australians are mobile, as we have seen in recent times with the great numbers of Australians flocking to Western Australia during the mining boom. It is essential that so far as is possible a national approach is taken to surrogacy laws.
I note that there is a broadly similar model of regulation in five jurisdictions: Queensland, New South Wales, the ACT, South Australia and Tasmania – namely that surrogacy is undertaken without the need for pre-approval from a State beaurocracy and instead counsellors, lawyers and IVF clinics can be trusted to ensure that thorough screening is undertaken prior to commencement so as to ensure that there is not commercial surrogacy being undertaken, that there is not exploitation of the surrogate or of the intended parents, that all parties at the right time receive counselling and legal advice and appropriate medical help.
I note that when Tasmania was debating its Surrogacy Bill in 2011 the then Attorney-General, specifically rejected the Western Australian approach as being too restrictive and slow. I note in passing that the Upper House committee which reviewed the Surrogacy Bill also toyed with the idea of having the pre-approval by a judge of proposed surrogacy arrangements (presumably in a similar manner to that in South Africa) but rejected that also no doubt as being too restrictive as it added to costs to the parties and to taxpayers, without adding a greater benefit. That pre-approval model also envisaged that after the child was born a parentage order would be made, necessitating therefore a minimum of two court appearances with the paperwork and costs associated with each.
Under the model of final approval, approval is granted at the end by the making of a parentage order at which stage a Judge has the opportunity to review all that has happened before. The effect of that judicial check and balance is that the parties ensure that they comply with all steps prior to that point because their aim as is the aim with any intended parent is to ensure that not only a baby is conceived and born but that the parents are recognised by the community as a matter of law as the parents of that child, including on the birth certificate of that child.
5.2 The inability to advertise for a surrogate
It is an offence under the Surrogacy Act to advertise – except where the advertisement is for free and except where it is for an altruistic surrogacy arrangement.
As a daily event surrogates and intended parents advertise. They are not prosecuted, despite there being similar laws in every State and Territory (other than the Northern Territory). This law is ineffective. It is not an offence, for example, for an intended parent to read an advertisement placed by a potential surrogate and then to contact that potential surrogate. If given the option many Australian intended parents would rather undertake surrogacy with an Australian surrogate than with a surrogate overseas.
It is suggested that the ability to advertise should not be restricted to free advertisements.
5.3 Inability to pay the donor
It is an offence under section 21 of the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) to pay an egg or sperm donor anything other than “reasonable expenses incurred” (which phrase has not been defined as there have been no prosecutions to my knowledge). The penalty for committing the offence is a maximum of 15 years imprisonment. Section 24 of that Act allows for the operation of State laws. The equivalent provision is section 16 of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (NSW) which allows for a maximum of 15 years imprisonment.
Intended parents in New South Wales faced with these laws and a shortage of donors are undertaking egg donation overseas. Many intended parents knowing that they cannot have children themselves and believing that the cure is surrogacy unnecessarily have decided to undertake surrogacy overseas whereas the cure in their particular case may merely be that of egg donation.
The availability of egg donors seems to vary. Recently Dr Warren DeAmbrosis, Fertility Specialist in Brisbane, told a surrogacy seminar in Brisbane that the delay in undertaking egg donors through Queensland Fertility Group was approximately 6 years. From talking to my overseas colleagues, this appears to be the worst in the world, and reflected in New South Wales and Victoria. Monash IVF has been able to import egg through its operations in Queensland and Victoria from the World Egg Bank in Arizona.
Australians have undertaken egg donation in places as disparate as Argentina, South Africa, Spain, Greece, Ukraine and the three places where Australians typically go for surrogacy are: India, Thailand and the United States.
Given that it has been estimated that one in six Australian couples have infertility problems it is likely that the number of Australians including New South Wales residents undertaking egg donor arrangements overseas will increase.
If the Surrogacy Act is looked at in isolation without consideration of the various parts that need to be changed to enable the legitimate expectations of New South Wales intended parents to become parents then the review will by its nature fail.
I am told that the delay in obtaining eggs from an egg donor through a website takes approximately 8 weeks. Reports vary. Queensland clients of mine reported to me that they approached 40 prospective egg donors and were unsuccessful with all save a prospective donor in Western Australia who wanted to be paid $5000 which she wanted to then use to undertake surrogacy overseas. Not surprisingly, my clients declined her offer.
Note: Section 10C of the Crimes Act 1900 (NSW) makes it plain that those who undertake commercial surrogacy outside New South Wales or those who pay egg donors other than “reasonable costs incurred” outside New South Wales may well be committing a criminal offence in New South Wales. Section 10C provides:
a) All elements necessary to constitute an offence against the law of the State exist (disregarding geographical considerations), and
b) A geographical nexus exists between the State and the offence,
the person alleged to have committed the offence is guilty of an offence against that law.
(2) A geographical nexus exists between the State and an offence if:
a) The offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or
b) The offence is committed wholly outside the State, but the offence has an effect in the State.”
In other words if the offence is committed in part in New South Wales or the effect in New South Wales, the offence occurs in New South Wales.
I also note here the similar provision in section 32(3) of the Human Tissue Act 1983.
5.4 The inability to pay the surrogate
In my view the extension of the geographical nexus under section 11 has been remarkably ineffective. The purpose of it, as I understand it from talking to MP’s was that it was intended to ensure that women in developing countries were able to be protected, and that related to this, a strong message would be given by Parliament which would have the effect of deterring people from undertaking surrogacy overseas due to concerns also about the potential exploitation of intended parents and particularly about the trafficking of children.
As far as I am aware there have been no prosecutions, but it is beyond reasonable doubt that many people from New South Wales have undertaken commercial surrogacy overseas.
The extra-territorial ban has been King Canute holding back the tide; a symbolic and futile gesture which has been completely ineffective.
Others have moved interstate, particularly to Victoria and less so to Western Australia and the Northern Territory, so that they do not commit offence and some also have moved overseas particularly to the United States.
The ban was brought in with no community consultation, which then resulted in an uproar after it was enacted, the effects being set out in the extraordinary section 11 of the Surrogacy Regulation 2011 which, contrary to the obvious words of section 10C of the Crimes Act 1900 in effect provides that if anyone has entered into a surrogacy arrangement overseas before 1 March 2011 or at least signed up an agency before that date they cannot be prosecuted.
There ought to be the ability to pay surrogates. As Professor Jenni Millbank demonstrated, in the year ended 30 June 2012 approximately 1000 children were born to Australian intended parents in India and Thailand alone. This figure is astounding. It demonstrates the inability of Australian parliaments to meet the legitimate needs and aspirations of Australians. It makes surrogacy so difficult that Australian intended parents are voting with their feet and going overseas. My experience of clients from New South Wales is that they have undertaken surrogacy overseas in:
· United States
I have had clients from New South Wales enquire about undertaking surrogacy in Mexico. As I indicated above, there are currently negotiations in place as to a proposed Hague Convention on International Surrogacy. Such a convention is likely not to be in place for several years. Hopefully a properly drawn convention will help protect the human rights of surrogates in developing countries, reduce the chances of child trafficking and protect the interests of intended parents and donors. Above all, hopefully a convention will protect the interests of children.
As part of the lobbying efforts associated with the convention, an international adoption non-government agency has estimated that there are approximately 20,000 international surrogacy arrangements per year in the world i.e. the child is born in country A and then moves to country B where the intended parents came from. If that number is correct, then one in twenty international surrogacy arrangements involve Australians remembering that Australia has a population of 22 million. This is an extraordinary figure. However, in October last year I had discussions with a colleague, Mr John Weltman who is the founder and president of one of the world’s leading surrogacy agencies, Circle Surrogacy in Boston. It is the estimate (and no more) of Mr Weltman and mine that there are approximately 4,000 – 5,000 international surrogacy arrangements each year in the world. If this number is correct then the number of Australian babies each year in India and Thailand alone are 20 to 25 per cent of the whole of the world’s international surrogacy arrangements. Certainly my experience has indicated that there are more New South Wales residents undertaking surrogacy overseas than undertake it locally. This is not just limited to gay or single men but also applies to those in married and heterosexual de facto relationships.
The perception of these clients is quite simple: it is too hard to undertake surrogacy in New South Wales and they would rather go overseas. I have set out these perceptions in my submissions to the Family Law Council inquiry, which are attached.
Commercial surrogacy has been an anathema for Australian politicians who are rightfully concerned that there ought not to be exploitation of women’s bodies nor child trafficking. The reality about the regulation of commercial surrogacy is that in much of the United States that regulation occurs and it has worked; in the case of California for example for over 30 years.
At the moment if a New South Wales couple wants to find a surrogate (because they don’t have a family member or friend who will be a surrogate), they take pot luck as to the quality of any potential surrogate. There is currently no great screening ability of potential surrogates as occurs with surrogacy agencies in the United States who are extremely thorough in screening potential surrogates. Commercial surrogacy can be undertaken with appropriate safe guards in New South Wales that would continue to protect the surrogate, the child, the intended parents and donors – without the sky falling in and avoiding exploitation and trafficking.
6. Costs of Surrogacy
Undertaking surrogacy in Australia is cheaper than overseas. The cost in the Eastern States at least varies from $25,000 to $60,000.
An IVF cycle costs approximately $15,000, and legal costs are $10,000 - $15,000.
If there is one cycle and lower legal costs, the cost is $25,000. If three cycles and higher legal costs, the cost is $60,000.
By contrast the cost overseas is:
USA $100,000 - $250,000
7. Who can counsel
The wide definition under regulation 7 of the surrogacy Regulations 2011 should form part of the act and that definition to include social workers, psychologists and psychiatrists should include those counsellors who undertake the preliminary counselling. Provided that the counsellor has the relevant experience it the initial counsellor does not need to be an ANZICA counsellor. For example, in one of my surrogacy arrangements in Queensland I acted for the intended parents. The wife was a clinical psychologist. She took objection to a psychologist being the counsellor because she said the MMPI test, which counsellors typically use, was patronising and irrelevant to the process of surrogacy. Instead I was able to ensure thorough counselling was provided by a very experienced social worker. The requirement in Queensland, for example, for counselling is that the person is one of the following:
a. A member of the Australian and New Zealand Infertility Counsellors Association
b. A psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists
c. A psychologist who is a member of the Australian Psychological Society
d. A social worker who is a member of the Australian Association of Social Workers and
e. Has the experience, skills or knowledge appropriate to prepare the report.
It has been the practice by some counsellors who undertake the initial counselling to then undertake the relinquishment counselling of the birth parents. Other counsellors decline to do so as it is unclear whether parliament and the Government by virtue of the regulations there to be three counsellors involved in the process or two.
By the time relinquishment counselling has occurred, the child has already been handed over. For clients who are birth mothers and their partners, this counselling seems to be pointless save that it is required by the legislation.
The experience from Queensland is that having thorough initial counselling with a thorough report from the counsellor, together with thorough legal advice before the surrogacy arrangement is entered into along with the obtaining of the independent assessment by an experienced report writer demonstrates clearly to the court that the parties knew what they were doing and were not acting under duress or some disability.
The relinquishment counselling adds to cost and to my mind adds little benefit. What would be more effective in my view is not a legislative response but to continue to work with ANZICA to encourage counsellors to offer counselling to the intended parents and the birth mother and her partner, in addition to that initial counselling but by that same counsellor at 3 months and 6 months of term and 3 months post birth. This is in accordance with the original protocols prepared by the pioneers of surrogacy in Australia, Canberra Fertility Clinic. That counselling is to be paid for by the intended parents. It ought not to be compulsory but as requested. Prevention, after all, is better than cure.
From my experience where there is a heterosexual couple who are the intended parents and a surrogate has a spousal partner, the most likely people undertaking that further counselling are the intended mother and the birth mother alone. In those types of arrangements it is essential that there is a good bond between those women, that any problems are able to be nipped in the bud and that the counselling can be used to build on the bond between them and repair any potential problems.
Australia has been a pioneer since the inception of IVF.
A current trend that will accelerate in coming years is the number of Chinese infertile couples accessing donor egg and surrogacy services in the United States. Because of the regulation of IVF units donors in surrogacy in Australia, including under the Surrogacy Act, it is not possible to attract this business to Australia. Increasingly surrogacy agencies and egg donor agencies in the United States are targeting their services to potential Chinese customers.
9. Availability to give evidence
I am able to give evidence or otherwise assist further if called upon.
Harrington Family Lawyers
 NHMRC, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical practice and Research, 2007
 Dr DeAmbrosis is a fertility specialist in Brisbane. He was one of the founders of the Queensland Fertility Group. He advised a public forum “So you want to make a baby” in Brisbane in April 2014 of this statistic.
 Because of the requirement that in effect all the parties must come from Tasmania therefore the treatment must in reality occur in Tasmania.
 I note that this review is only related to the Surrogacy Act