Monday, August 4, 2014

As I predicted last year: further baby Gammy cases are avoidable

Last year the then Attorney-General Nicola Roxon commissioned a statutory body, the Family Law Council, to advise and report about surrogacy issues. Although not within the technical terms of reference, many of the submissions to the Council, including mine, touched on the issue of commercial surrogacy.

I called for Australia to embrace properly regulated commercial surrogacy. I note that if Australia had done so, instead of the maze of laws in place at the present moment, varied between State to State, virtually forcing people to go offshore to places like Thailand, then the case of baby Gammy would likely never have arisen. If commercial surrogacy, properly regulated, were allowed in Australia, then the chances are Australians would undertake surrogacy at home rather than be the highest per capita users of international commercial surrogacy arrangements, including approximately 400 Aussie children born via surrogacy in Thailand in the year ended 30 June, 2012.

This is what I said:

 "Commercial surrogacy could be easily able to be done in Australia without fear of exploitation of intended parents, surrogates and their partners or the children. The framework for the licensing of clinics is already there. Australians have world class medical services and world class clinics. It is preferable that Australian surrogates have the option of being paid, to be compensated for the risk that they undertake. To follow the example of Western Australia, the intent of legislation which is to prevent commercial surrogacy is achieving the opposite- driving people to commercial surrogacy operations overseas."

As I prophesied:

"The failure of Australia’s political class to properly deal with commercial surrogacy, together with the inevitable limitations of adoption and altruistic surrogacy, have meant that Australian intended parents have voted with their feet and undertaken commercial surrogacy overseas. Attempts to prevent this are futile because intended parents read the web, they are informed, and will do anything to become parents. Desperation is the keyword. They are desperate to become parents.

A failure to ensure that there is commercial surrogacy within Australia will mean inevitably an increase in Australians seeking commercial surrogacy overseas. In my view properly regulated commercial surrogacy will ensure a transparent process that avoids exploitation of intended parents, the surrogate and her partner, and donors, and most importantly any children born through the process. The proof is in the pudding: if the US is able to have such a successful program in place for over a generation, why can’t we?

By making available commercial surrogacy in Australia, there will be fewer Australian intended parents making the journey overseas, especially to developing countries such as India and Thailand."

The Council report was delivered to the Attorney-General Senator George Brandis before Christmas. Since then the Abbott government has sat on the recommendations, and its response. The report has still not been released publicly- as is obvious from the Family Law Council's webpage today

I called my submissions: A child cannot be ignored: these cases will not go away. As Australia's leading surrogacy lawyer, someone who deals with clients undertaking surrogacy day in, day out, I put forward a 26 step program of recommendations:

1.      The process of determining citizenship of the child should remain with the Department of Immigration and Citizenship. There should not be the need to make applications to the Family Court to determine as to who is a parent, and as to whether or not the child is therefore entitled to Australian citizenship. Going to court is slow, costly, cumbersome, burdensome on taxpayers, judges and other court users, and most importantly leaves the citizenship of the child unresolved. A quick, cheap, simple and transparent administrative test is in the public interest.

2.      The test of determining whether a child is an Australian citizen who is a “child” of a “parent” for the purposes of the Australian Citizenship Act 2007 when a child has been born overseas and where a surrogacy arrangement or agreement has been entered into ought to include:


a.       A rebuttable presumption that the “parent” is any intended parent named in a written surrogacy arrangement or agreement;


b.      A rebuttable presumption that a court order granting the person parental responsibility however defined means that that person is a “parent”;


c.       A rebuttable presumption that if a person is named under a legal, administrative or judicial process of an overseas jurisdiction (such as a court order or birth certificate) as a “parent” then that person is a “parent”; 


d.      The person is genetically a “parent” of the child; or


e.       The spouse of a person is a “parent” of the child.


3.      The same test be applied under the Family Law Act 1975 and for other Commonwealth legislation, such as the Child Support (Assessment) Act 1989 and the Australian Passports Act 2005.


4.      This change ought to be retrospective.


5.      If a person acquires Australian citizenship by descent by virtue of section 16(2)(a) of the Australian Citizenship Act 2007, then the person is presumed to be the “child” for all purposes (Commonwealth, State and Territory) of the “parent”.


6.      To obtain an Australian passport for a child born overseas where a surrogacy arrangement or agreement has been entered into, the following test should apply:


a.       There can be more than two “parents” of the child;


b.      The consent of all of those who have parental responsibility for the child is required before a passport will issue for the child, subject to the ability to dispense with that consent, and subject to an order of an Australian court as currently provided in the Australian Passports Act 2005 (Cth); s.11;


c.       If a court order of another country terminates the parental rights of a person, that person will not be recognised as having parental responsibility for the child for the purposes of the Australian Passports Act 2005 (Cth);


d.      If what appears in the opinion of the delegate to be a binding agreement has been entered into that terminates the parental rights of a person in accordance with foreign law, that person will  not be recognised as having parental responsibility for the child for the purposes of the Australian Passports Act 2005 (Cth);


e.       There be Regulations stating in what jurisdictions surrogacy agreements may be considered binding on this point; and


f.       If a child has previously had an Australian passport issue, the people deemed to have parental responsibility for the child shall be no greater than the people who had parental responsibility the previous time a passport issued for the child.


7.      Any administrative barriers that exist to prevent the registration of overseas custody orders under the Family Law Act, such as those made in the United States should be removed.


8.      The Commonwealth immediately prescribe jurisdictions under the Family Law Regulations for the recognition of overseas birth certificates.


9.      Internal barriers to surrogacy ought to be removed:


a.       The Commonwealth ought to persuade WA, SA and the ACT to legislate, failing which it should legislate itself to remove discrimination against intended parents based on their sexuality or relationship status where such barriers currently exist;


b.      The Commonwealth ought to persuade Tasmania to legislate, failing which should legislate itself to remove discrimination against intended surrogates and their partners based on their location;


c.       The Commonwealth ought to persuade each of the States and the ACT, failing which it should legislate itself, that intended parents have freedom of choice as to which clinic and court they access in Australia, and therefore they need not reside in a particular jurisdiction or access doctors in that jurisdiction to be able to access surrogacy;


d.      The Commonwealth ought to persuade each of the States to legislate to remove any requirement by clinics requiring the surrogates and intended parents to have known each other for one year or more.


10.  It is recommended that the Commonwealth press for uniform surrogacy laws, if as to altruistic surrogacy to be on the Queensland model and related matters, such as alteration of birth records for children born via surrogacy.


11.  Preferably the Commonwealth will seek to either have a referral of power, or seek to legislate using its legislative powers to enable uniform national laws as to surrogacy, and related matters, such as alteration of birth records for children born via surrogacy.

12.   Amend the NHMRC Ethical Guidelines to allow for Australian doctors to advise that they provide surrogacy services.


13.  If there are to be laws allowing commercial surrogacy, amend the NHMRC Ethical Guidelines, to enable Australian doctors to engage in commercial surrogacy.


14.  The Commonwealth should legislate to ensure that there is not an unintended extra-territorial effect of offences relating to the commercial trade in eggs, so that if the offences remain, they only apply to offences committed wholly in Australia.


15.   Egg donors and intended recipients ought to be able to advertise to seek eggs or egg donors.


16.  Egg donors ought to be able to be paid for their services.


17.  There ought to be the ability of intended parents and intended surrogates to advertise. The Commonwealth can easily legislate to allow such advertising on the internet.


18.  If there is to be commercial surrogacy in Australia, there ought to be commercial agencies which are properly licenced, in accordance with standards set by an industry body, such as the Fertility Society of Australia, failing which legislated by national standards.


19.  Expatriate Australian citizens as intended parents should be able to access Australian surrogacy arrangements without penalty. The Commonwealth should persuade the States and the ACT on point, failing which the Commonwealth should legislate.


20.  The Commonwealth ought to work with the States to remove any practical barriers that prevent the timely recognition of alteration of birth registers of children following the making of parentage orders.


21.  Uniform surrogacy laws should include the referral of surrogacy matters to the Family Court and the Federal Circuit Court of Australia.


22.  The principles of those laws should be:


a.       Children are born equal;


b.      The recognition that Australian intended parents have the right to choose as to how to form a family, subject to certain limitations, such as a minimum age;


c.       The laws should be non-discriminatory, in particular those who are single or living in same sex relationships, expatriate Australian citizens or those who move between States should not be discriminated against;


d.      The parentage of children needs to be recognised;


e.       A process is legalised and regulated to ensure that children, intended parents, surrogates, their partners, donors and their partners are adequately protected and not subject to exploitation;


f.       To ensure that children are aware of their genetic history.

23. If national legislation is not pursued, the Commonwealth should lead the states to have nationally consistent terms used in surrogacy legislation, consistent with international norms.

24. “Parentage” orders should be renamed “parenting” orders, in accordance with the scheme of the Family Law Act.

25. The Commonwealth should legislate to remove the extra-territoriality of laws banning commercial surrogacy.

26.       The Commonwealth should legislate for Australia to encourage overseas jurisdictions to ensure that appropriate standards are met for commercial surrogacy including:

a.       To ensure that IVF clinics and surrogacy agencies are licensed so that they meet quality standards similar to those of the Fertility Society of Australia or other like organisations, such as the American Society of Reproductive Medicine;


b.      To ensure that children, intended parents, surrogates, their partners, donors, and their partners are not exploited;


c.       To encourage the ability of intended parents, the children and the surrogates to have long term relationships, with the aim of ensuring that the child knows where they came from;


                   d.      To ensure that children are aware of their genetic history.

This is what I had to say about the possibility of exploitation:

"16.7 Possibility of exploitation

A worry of intended parents in undertaking surrogacy overseas include the possibility of exploitation. They do not want to exploit a surrogate. They do not want to exploit a child, and they do not want to be exploited themselves.

Certainly the reports from the United States indicate that transactions are above board, that there is complete transparency, that there is no exploitation of the intended parents, surrogate and her partner, the child or donors, and above all there are clear rules backed by the rule of law in case anything goes wrong.

I do not hold the same confidence about some other jurisdictions.

The concern raised with me about India by clients is: “What’s next?” This is a fair question to ask when India changed the rules without notice, on a discriminatory basis, and did not advise intended parents until almost 4 months later.

Children born via surrogacy in India are born Stateless. Historically both Australian heterosexual parents have been named on the birth certificate, and one of gay intended parents.

Children born via surrogacy in Thailand will always have the name of the surrogate as the mother on the birth certificate, not that of the Australian intended mother. For gay couples, only one will be named on the birth certificate, usually the genetic father.

It is of concern to me that in India and Thailand, for example, that intended parents may not have an ongoing relationship with the surrogate (although there are exceptions to this), and the child may not know truly where they have come from. Not only will the child likely not have an ongoing relationship with the surrogate, but any donors will be anonymous.

The only concern I have about the US (for those jurisdictions in Australia where it legal for Australian intended parents to access commercial surrogacy overseas, and aside from citizenship issues) is the cost, especially the at times uncertain and high medical and insurance cost. Many of my clients have said that they chose to undertake surrogacy in India or Thailand over the US for one reason- the much lower cost."

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