Western Australia is currently undergoing a review of its Surrogacy Act 2008. I prepared submissions about what I think needs to change. Here are my submissions:
24 April 2014
Surrogacy Review Reproductive Technology Unit
Office of the Chief Medical Officer
Department of Health
189 Royal Street
Perth WA 6004
By email: firstname.lastname@example.org
Submission as to Surrogacy Review
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.
My clients have sought advice regarding Western Australian issues:
· Have been those from Queensland and New South Wales who have moved to Western Australia to undertake commercial surrogacy overseas;
· WA residents who have undertaken commercial surrogacy overseas;
· Overseas expatriate clients who are considering undertaking surrogacy in Western Australia;
· Interstate clients who either have a prospective donor or surrogate in Western Australia.
I am a partner of Brisbane boutique family law firm. I was admitted in 1987 as a solicitor of the Supreme Court of Queensland in 1989 as the 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.
I have given evidence to the Tasmanian upper house enquiry 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.
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 Western Australia. A copy of my two submissions dated 3 June 2013 and 28 June 2013 to the Family Law Council are enclosed.
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.
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.
What is wrong with the Surrogacy Act
The Surrogacy Act and related legislation whilst regulating surrogacy does so in such a heavy
manner that in effect it forces people to undertake surrogacy somewhere else.
Changes required for surrogacy in Western Australia
1. The removal of discrimination;
2. Taking a national approach;
3. The recognition of the legitimate wishes and aspirations of expatriate Australians;
4. The ability to advertise for a surrogate;
5. The ability to advertise for a donor;
6. The ability to pay for a donor;
7. The ability to pay for a surrogate;
8. The ability to undertake commercial surrogacy overseas.
1. The removal of discrimination
There is no legitimate reason why the Surrogacy Act should discriminate. Currently those eligible to undertake surrogacy under the Surrogacy Act are:
· Married couples
· Heterosexual de facto couples
· Single women
· Lesbian couples
Those who are unable to access surrogacy are:
· Single men
· Gay couples
As was recognised last year in Re Blake & Another gay couples in Western Australia are undertaking surrogacy overseas. They cannot undertake surrogacy in Western Australia even if they wanted to because the law says they are not allowed.
The social science literature indicates quite clearly that children brought up by same sex couples thrive as much as children brought up by heterosexual couples. There would appear to be no legitimate basis for the discrimination. Indeed the discrimination may well fall foul of the Commonwealth anti-discrimination legislation.
In the most recent Surrogacy Bill, that of Tasmania, there are no restrictions based on marital status, gender or sexual orientation.
I note that the Surrogacy Acts in Queensland, NSW, Victoria, the ACT and Tasmania do not discriminate on these grounds. (The ACT requires a “couple”, and ordinarily in Tasmania everyone must reside there).
2. 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. There ought not be a requirement that at the time of entering into the surrogacy arrangement the parties need to reside in Western Australia, as is currently the requirement.
An example is the couple where the wife lives in Queensland and the husbands spends the majority of his time on a fly in fly out basis in Western Australia. If they are residents of Queensland, then they cannot access surrogacy in Western Australia. If he is a resident of Western Australia then he can access surrogacy in Western Australia but his wife is not, which therefore means neither can access in Western Australia.
It is not unusual for hospitals to employ visiting medical officers who out of necessity in the greater public good move from hospital to hospital as gaps are found in our nation’s health care system. These people who are vital to our nation’s health may be resident currently in Western Australia and next month resident in Queensland or in a couple of months resident in the Northern Territory. It may be significantly easier for them as a matter of practicality to undertake surrogacy overseas rather than run the gauntlet, for the relevant period in obtaining the pre-approval process, through the Reproductive Technology Council, to show that they are residents of Western Australia.
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.
3. Recognition of the legitimate wishes and aspirations of expatriate Australians
Under the model of altruistic surrogacy which has been recognised in Australia the surrogate is typically a friend or close family member of the intended parents or, less commonly, a stranger. It is not uncommon for the surrogate to be the sister, sister-in-law, mother or cousin of one of the intended parents.
There have been a number of intended parents who are Australians living overseas who have recognised that they are unable to access surrogacy in Western Australia. This is because the Surrogacy Act only allows intended parents to access surrogacy if they are residents of Western Australia at the pre-approval stage. By contrast, in Queensland and New South Wales the intended parents do not need to live in either of those jurisdictions prior to or at the time of entering into the surrogacy arrangement. They only need live in those jurisdictions at the time of the making of the parentage order. In reality this means that they will need to live in that jurisdiction from the time of the child’s birth.
It may seem a semantic argument but the reality for intended parents who are Australians and live overseas is a real one, where they have contemplated assisting their surrogate moving interstate, or quite simply decided that the dream of having a family member as the surrogate was all too hard and have undertaken commercial surrogacy somewhere else, such as in the United States.
4. The inability to advertise for a surrogate
It is an offence under section 10 of the Surrogacy Act to advertise for a surrogate or seeking intended parents for a 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.
5. 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 53Q of the Human Reproduction Technology Act 1991 which allows for a maximum of 10 years imprisonment or 2 years on a summary basis.
Intended parents in Western Australia 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, via State Surrogacy Seminar in Brisbane that the delay in undertaking egg donors through Queensland Fertility Group was approximately 6 years. 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 Western Australians 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 Western Australian 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 12 of the Criminal Code makes it plain that those who undertake commercial surrogacy outside Western Australia or those who pay egg donors other than “reasonable costs incurred” outside Western Australia may well be committing a criminal offence in Western Australia. Section 12 provides:
“(1) An offence under this code or any other law of Western Australia is committed if –
(a) All elements necessary to constitute the offence exist; and
(b) At least one of the acts, omissions, events, circumstances or states of affairs that make up those elements occurs in Western Australia.
(2) Without limiting the general operation of subsection (1), that subsection applies even if the only thing that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission occurs outside Western Australia.
(3) This section does not apply to an offence if –
(a) The law under which the offence is created explicitly or by necessary implication makes a place of commission an element of the offence; or
(b) The law under which the offence is created is the law of extra territorial operation and explicitly or by necessary implication excludes the need for a territorial nexus between Western Australia and an element of the offence.”
6. The inability to advertise for a donor
There ought to be the ability of IVF clinics in Western Australia to advertise for egg and sperm donors. Bizarrely the effect of section 30 of the Human Tissue and Transplant Act 1992 (WA) means:
· It is lawful for any intended parent to advertise for an egg or sperm donor
· It is lawful for an IVF clinic to advertise for a sperm donor
· It is an offence, punishable by a fine of $1000, to advertise for an egg donor.
The offence of advertising is of “the buying in Australia of human tissue” or of “the right to take tissue from the bodies of persons”. The different ways in which eggs and sperm are taken or ejaculated from the bodies of women and men respectively therefore marks the difference in the approach taken under that legislation. “Tissue” does not have a clear definition under that Act other than under section 6 where in the relevant Part tissue is not to include “foetal tissue, spermatozoa or ova” which means by implication that “tissue” in the rest of the Act includes those three.
7. The inability to pay the surrogate
There ought to be the ability to pay surrogates in Australia. 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 Western Australia is that primarily they go to Thailand which is one flight away from Perth to Bangkok. Some from Western Australia have also undertaken surrogacy in India and the United States amongst other countries. I’ve had clients from Western Australia 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 Western Australians undertaking surrogacy overseas that 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 Western Australia and they would rather go overseas.
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 Western Australian couple wants to find a surrogate (because they don’t have a family member or friend who will be a surrogate, the 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 I the United States who are extremely thorough in screening potential surrogates. Commercial surrogacy can be undertaken with appropriate safe guards in Western Australia that would continue to protect the surrogate, the child, the intended parents and donors – without the sky falling in and avoiding exploitation and trafficking.
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
Section 14 of the Act refers to those people who want to become parents, who intend to become parents as the “arranged parents”. This is a demeaning term, as though they have been imposed by the State on the child. It is suggested that the term that ought to be used is that which is internationally recognised and has been used in legislation interstate – “intended parents” which reflects their intention to become parents. The phrase used in the ACT “substitute parents” is also demeaning as is that used in Victoria of “commissioning parents” which indicates some commerciality with the role.
Role of donor in the surrogacy arrangement
The key people in any surrogacy arrangement ought to be the intended parents, the birth mother and her partner. The birth mother after all places her life potentially at risk to give the gift of life to people who are desperate to have a child. Whilst there should always be counselling for any donors, it is suggested that the donor need not be a party to the surrogacy arrangement (contrast with section 17(b)(iii) of the Surrogacy Act). The consistent practice of all other jurisdictions is not to require the donor to be a party to the surrogacy arrangement.
Who can counsel
It ought not be merely limited to psychologists who can provide counselling (as is required by section 17(c)(ii)) but potentially a wider class of counsellors. 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.
Genetic Link with the Intended Parents
Currently section 21(4)(b) of the Surrogacy Act requires one of the intended parents to be the genetic parent of the child. Intended parents do not undertake surrogacy lightly. Surrogacy is option of last resort. It is not their fault that their sperm does not work or that their eggs do not work. They ought not to be doubly punished.
There seems to be a presumption in that provision that if there is a genetic connection therefore the intended parents will love the child whereas without that genetic connection there is a risk that they may not. The reality is that a number of intended parents, through no choice of their own, have to rely upon both donor egg and donor sperm, and a surrogate. Those people cannot access surrogacy in Western Australia. If they lived in most other parts of Australia they could. There is no evidence to suggest that those children are any less loved than children where there is the genetic connection. That requirement ought to be repealed.
Repeal the requirement banning traditional surrogacy
Traditional surrogacy has been around since Biblical times, as evidenced in Genesis. In modern times the first form of surrogacy as seen in the United States was that of traditional surrogacy, simply because there were not egg donors available. American colleagues estimate that traditional surrogacy is 5% of all types of surrogacy occurring in the USA. Section 21(4)(a) of the Surrogacy Act prevents traditional surrogacy occurring. No doubt Parliament intended this out of concern that traditional surrogacy can pose risks not seen so obviously with gestational surrogacy. The fear that almost every intended parent has is that the surrogate will not hand over the child. The fear incidentally that almost every gestational surrogate has is the intended parents will not take the child – the same fear from the other side of the fence.
The fear is that a traditional surrogate will not hand over the child because she is also the genetic mother of the child. There are legitimate basis for this fear. However in appropriate cases when there has been proper legal advice and thorough counselling traditional surrogacy, particularly in light of the lack of egg donors, might be appropriate.
Availability to give evidence
I am able to give evidence or otherwise assist further if called upon.
 NHMRC, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical practice and Research, 2007
 I note that this review is only related to the Surrogacy Act
  FCWA1
 S.17, s.19(1)(a)