Saturday, December 5, 2015

Chief Judge Pascoe appointed to The Hague surrogacy working group

On Thursday Federal Attorney-General Senator George Brandis announced the appointment of Chief Judge John Pascoe AO CVO as the Australian delegate to the Hague working group considering an international surrogacy convention.

This was great news. This is an excellent appointment. The importance of this appointment cannot be overstated, as it may have implications about surrogacy in Australia for a very long time.

Who is Chief Judge John Pascoe?


The Chief Judge is the head of one of Australia's two national family law courts. The two courts are the Family Court of Australia, which is headed by Chief Justice Diana Bryant, and the Federal Circuit Court of Australia, headed by his Honour. At last count, the Federal Circuit Court had between 85 and 90% of family law filings nationwide. It is also the centre of bankruptcy filings and immigration filings, as well as some other civil jurisdictions. It is in essence a VERY busy place.

Last year the Chief Judge and the Chief Justice called for fundamental reform of how Australia regulates surrogacy. Their Honours said that there should be a Parliamentary inquiry into surrogacy, including the possibility of commercial surrogacy. They said there should be national, or nationally consistent laws, and the ban on residents in some States going overseas for surrogacy should either be enforced, or repealed, noting that the bans were not enforced, and to not enforce laws but have them for symbolism is to make a mockery of the law.

His Honour also has spoken at length about the appalling nature of child and human trafficking. He has described how children were packed in shoeboxes and shipped across the River Mekong. He is passionate about upholding the rights of children. As part of his commitment, he is a board member of a charity in Cambodia to protect children.

When there was an informal Parliamentary inquiry into surrogacy earlier this year, his Honour said that the importance for children was to be loved and have a good quality of care, and that the sexuality of the parents was not important. What was important was the care given to children.

What is the Hague working group?

Australia is a party to several Hague Conventions. These are conventions that are signed at The Hague, in the Netherlands. They are signed through Australia's membership of the Hague Conference on Private International Law. In essence there are two bodies that lead the way internationally in the formulation and signing of treaties and conventions- the United Nations, and the Hague Conference on Private International Law.

The conventions that Australia has signed up to include the Hague Child Abduction Convention (most remembered in Australia from the Italian fours sisters case, when their mother took them from Italy, to where they were eventually returned) and the Hague Intercountry Adoption Convention (which has been blamed in Australia for part of the reason that international adoption in Australia is painfully slow).

For several years now the Hague Conference has been considering as to whether or not there ought to be a convention on private international law concerning children (to include international surrogacy arrangements). The Hague Conference has delegated this work to the organisation that runs the Hague Conference on a day to day basis, the Hague Permanent Bureau.

The Bureau has organised early in the New Year a working group to get together of experts from throughout the world in essence to draft a convention. This is the working group to which Chief Judge Pascoe has been appointed.

We have one chance of getting this convention right. The implications for Australia in getting the convention wrong are huge. Australians are the highest per capita users of international surrogacy arrangements. Australians wander the globe to undertake surrogacy, currently going as far afield as the US, Greece, Canada, the Ukraine, the Republic of Georgia, Nepal, Mexico and Cambodia.

One model suggested is that the convention should be modelled on the Adoption Convention, which has been labelled a "success". Given the extraordinary amount of time that Australian intended parents have to wait to be able to adopt from overseas, I am fearful that a convention based on the adoption convention instead of being a "success" will in fact be an unmitigated disaster. Everyone's rights will be protected (which is a good thing) but with inordinate amounts of delay, red tape, cost and pain. The reality with the Adoption Convention is that Prime Ministers Rudd and Abbott have sought to reduce red tape with international surrogacy- and in Abbott's case signed bilateral agreements with overseas countries. If the Convention were viewed as a success, there would be no need for those bilateral agreements to exist.

As Australians are the highest per capita users of international surrogacy arrangements, the implications of getting the convention right are huge.

For the last few years, I have been one of two international representatives on the Artificial Reproductive Treatment Committee of the American Bar Association. I am the principal advocate and co-author with Bruce Hale from Boston of a draft paper by the Committee about the proposed Hague Convention. I hope to have the endorsement of that paper by the American Bar Association's House of Delegates in February.










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