Friday, February 19, 2016

My submissions to House of Representatives surrogacy inquiry

Last week I made my submissions to the House of Representatives surrogacy inquiry. As the submissions have now been made public, I am in a position to publish them. I propose:

  • there be nationally consistent laws, broadly based on the Queensland Surrogacy Act
  • commercial surrogacy be allowed
  • egg donors be paid, but to avoid expolitation, this be capped at say $5,000.
  • surrogates be paid, but to avoid exploitation this be capped at say $20-30,000.
  • It be easier for those going to low risk locations, such as the USA and Canada.
  • It be harder for those going to higher risk locations. 
Here are my submissions:



Committee Secretary
House of Representatives
Standing Committee on Social Policy and Legal Affairs

SURROGACY INQUIRY SUBMISSION
“We do surrogacy well in this country”
I wish to thank first the committee for asking me to make a submission.
1.        SUMMARY OF PROPOSALS FOR REFORM
In broad terms I would consider that the solution to fixing Australia’s surrogacy problems are:
1.      That there are national laws of a consistent nature.  This would preferably be Commonwealth law or alternatively a national scheme through COAG, so that the various Commonwealth State and Territory laws are consistent, not inconsistent as they currently are, and be based on the Surrogacy Act 2010 (Qld), save as to comments below.

2.      That these laws do not discriminate about who can become a parent.  The laws would reflect the reality that if they were discriminatory (in apparent breach of Australia’s human rights obligations as recently referred to at Geneva) they also reflect the reality that different people want to become parents and will take those steps irrespective of restrictions.

3.      That my model endorse the guiding principles of s6 of the Surrogacy Act 2010 (Qld), attached.

4.      That there be a further principle, that upon reaching 18 years, the child has a right to know where they came from.

5.      That there be a mechanism, similar to those provided in the National Health and Medical Research Council, Ethical Guidelines, for the child to be able to access this information, including as to the details of the surrogate, with the assistance of appropriate counsellors.

6.      That the laws allow compensated surrogacy.  We should be proud of paying a woman to carry a child to term when she has a 1 in 10,000 risk of dying from pregnancy or childbirth.  Just as we are proud to pay childcare workers.  We would never suggest we put our children into a childcare facility and the workers be paid nothing.  The Canadian model is an altruistic surrogacy model.  I have collaborated with a number of Canadian lawyers and I can say that there are active concerns in Canada about what is and what is not regulated.  The complaint that has been put to me by those involved with surrogacy in Canada is that there are simply not enough surrogates and that many women come forward to be surrogates but are learning, that unlike their cousins south of the border in the United States, that they are not being paid and then decline to be surrogates, resulting in a shortage of surrogates.

7.      That intended parents/surrogate are able to advertise.

8.      That there be thorough screening of the surrogate, her partner and the intended parents before entering into the surrogacy arrangement by way of counselling and assessment and a written report to the IVF clinic and respective lawyers.

9.      That the counselling that is offered before the surrogacy arrangement is provided by one counsellor to all parties.  That counsellor has to have the necessary expertise and would be a social worker, psychologist who is a member of or equivalent to ANZICA membership.

10.  That the parties obtain independent legal advice from an Australian legal practitioner before entering into the surrogacy arrangement.

11.  That criminal history and child protection checks be undertaken.  The responsibility will then fall upon the individual IVF clinic about whether it wishes to provide the service to the intended parents.  These checks are to ensure that the whole process is transparent.

12.  That egg donors are able to be paid a regulated, reasonable amount with a cap on payments so that there is not exploitation.  Aside from out of pockets, the amount might be, say $5,000.

13.  The surrogates are to be paid up to a regulated, reasonable amount with a cap on payments, so that there is not exploitation. Aside from out of pockets, the amount might be, say $20,000 to $30,000.

14.  That there be a written surrogacy agreement.

15.  That a mandatory term of any domestic surrogacy arrangement be that the surrogate has the right to manage the pregnancy and childbirth just like any other woman.

16.  That post-birth there be an independent assessment report undertaken at the cost of the intended parents for which all parties are interviewed to provide guidance to the court, as to whether the proposed orders are in the best interests of the child.

17.  That a parentage order is made, based on the paramount principle of best interests of the child, in either a state court or in the Family or Federal Circuit Courts and that there be automatic national recognition of those orders

18.  That the making of an order in one State will be given effect to by the Registrar of Births, Deaths and Marriages in any other state or territory in which the child was born.

19.  That the Commonwealth Department of Human Services ensure that intended parents (and surrogates and their partners) are given adequate information about the ability to become parents via surrogacy and egg donation, and the possibility of surrogacy and egg donation.

20.  That intended parents are not criminalised by undertaking surrogacy or egg donation contracts overseas

21.  That if intended parents (whether citizens or residents) undertake surrogacy overseas then they be able to obtain citizenship (or residence) respectively for the child (and in the process utilise the parent-child relationship for all purposes under Australian law) without difficulty under the existing procedures under the Australian Citizenship Act (or the Migration Act, respectively) provided that:

a.       It is a positive requirement under law requiring all intended parents having a child move to Australia either to be a citizen or a longterm visa holder to advise the Department of Immigration and Border Protection that the child was conceived via surrogacy. Failure to comply would be a criminal offence.

b.      They have obtained a court order or administrative process recognising them as parents in a listed of overseas jurisdiction, such as Canada, the United Kingdom, the United States, New Zealand (and soon Republic of Eire);

c.       That they have obtained a court order in the overseas jurisdiction recognising them as parents in which there is a set criteria in which it can be shown that the agreement was reached at arm’s length with protection for the surrogate, such as that she had independent legal advice in her own language before she signed the contract;

d.      Pre-approval to the international surrogacy arrangement has been granted by a relevant Australian court; or

e.       Failing which approval is obtained from that appropriate court in Australia as to the surrogacy arrangement for example, subject to resourcing issues, the Federal Circuit Court.

22.  Upon obtaining citizenship (or residence) for the child, the intended parent will be recognised for all purposes as parents of the child under Australian law including for Medicare, Centrelink, Passports, Family Law Act and inheritance purposes.
23.  The parents who underwent surrogacy before these changes take effect and who have obtained residence or citizenship for their children be recognised as the parents of the child for all purposes.

24.  That it be a requirement to tell the Department of Foreign Affairs and Trade if the child were conceived via surrogacy, on any application by a child for an Australian passport.

25.  That policy of the Department of Health and the Department of Human Services be altered so that intended parents can apply for and obtain a Medicare Card for a child before the making of a parentage order provided they produce:

(a)    A copy of the child’s birth certificate; and
(b)   A copy of the surrogacy arrangements
but if the surrogacy arrangements does not contain consent of the parents to the intended parents applying for a Medicare card to issue for the child as a member of the intended parent’s family:
(c)    A copy of the surrogacy arrangement; and
(d)   A written consent to trial effect.

26.  That prior to the entry by Australia into any Hague convention covering international surrogacy arrangements, those wishing to undertake surrogacy overseas including commercial surrogacy, be able to do so, provided either:

(a)    Surrogacy is undertaken in a listed overseas jurisdiction (such as Canada, UK, US, NZ (or possible Eire); or

(b)   It is undertaken with the prior approval of a relevant Australian court, when the court has been provided with:

(i)                 A copy of the surrogacy agreement in English,

(ii)               The criminal and child protection history of the intended parents,

(iii)             A report by a social worker or psychologist as to the suitability of the intended parents,

(iv)             Evidence of the medical or social need for surrogacy, the medical need being along the lines of the requirements of the Surrogacy Act 2010 (NSW) or Surrogacy Act 2010 (Qld)

(v)               Evidence:

(a)    The surrogate (and her partner) have had separate legal representation in the overseas county, paid for by the intended parents either directly or indirectly through a program fee;

(b)   That the intended parents have had separate legal representation in that country;

(c)    That the surrogate, her partner and the intended parents have had translation, interpretation and other support that is adequate to ensure is formed consenting by having an understanding of the agreement and the medical and legal processes.

(d)   That if a party is not literate, the agreement been read aloud to her or him, as well as translated into her or his native or preferred language.

(e)    That the surrogate and her partner have received counselling from a mental health and or medical practitioner to discuss the process of its risks and benefits.

(f)    That any compensation or reimbursement to the surrogate must be set forth in the agreement and must be tied to the surrogate’s time, effort and risk and note to the outcome of pregnancy.

(g)   That the agreement not require or contain provisions that coerce the surrogate to terminate or reduce a pregnancy.

(h)   That the surrogate and her partner must be at least 25.

(i)     As to whether or not the surrogate has previously given birth to a child.

(j)     That the number of embryos to be implanted into the uterus of the surrogate do not exceed 2.

(k)   As to whether or not my child conceived will be able, upon turning 18, to be able to know and to contact any sperm, egg or embryo donor, and if not, why not.

27.  That there be a statutory review of the legislation by this committee within five years of the enactment of these changes once enacted.

2.        A RECAP FROM THE ROUNDTABLE ON SURROGACY 
The Committee identified, correctly in my view, key issues concerning surrogacy including:
·         What constitutes genuine informed consent and agreement to relinquishment and risks of exploitation?

·         What are the rights of a child to know biological parentage?

·         How is parentage determined for legal purposes?

·         Does the Family Law Act 1975 (Cth) appropriately recognise parentage of children born as the result of surrogacy where State and Territory Acts do not apply?

·         How are relationships between those involved in surrogacy arrangements impacted and are they properly supported throughout the entire process?

·         What are Australia’s International human rights obligations and how can the Australian government ensure international surrogacy arrangements are conducted legally in overseas jurisdictions and ethically?

·         What current international frameworks exist that allow Australian Government oversight of international surrogacy arrangements to ensure they are conducted ethically including progress made towards the Hague Convention on surrogacy?

·         How do Australian Government frameworks grant citizenship and documentation for children born overseas recognise legal parentage while scanning for prohibited and unethical behaviours?

·         Are Australian IVF specialists in clinics adequately trained and resourced to provide appropriate advice and support to intending parents, surrogates and children born through surrogacy arrangements? Can Australian regulatory frameworks be improved to assist in this?

·         What are the rights of all parties, including when the surrogate mother has no genetic connection to the child (because both egg and sperm have been donated)?  The committee noted issues as to discrimination, which I highlighted when I gave evidence to the round table.

3.        REGULATION OF SURROGACY AND IVF IN AUSTRALIA

To make a baby other than by conventional means, usually assisted reproductive treatment (ART) of some kind, including in vitro fertilisation (IVF) is used.

The methods by which a child can be conceived are:

·         By the surrogate and her partner having sex, and then handing the child over, as seen in Low & Barry (2001) FamCA 625.

·         By traditional surrogacy, where the surrogate is not only the surrogate but also the mother.  It is perceived (although not consistent with UK research, that there is a higher risk of the surrogate not handing over the child when it is a traditional surrogacy, as seen for example in Re Evelyn [1998] FamCA 55.

·         Gestational surrogacy – where the surrogate has no genetic relationship with the child but merely acts as a gestational carrier.  From experience, the overwhelming form of surrogacy in Australia is gestational surrogacy.  This process necessarily involves IVF.  It is common with gestational surrogacy for the sperm of the intended father to be used but for there to be egg from an egg donor.  A recent case that illustrates this is Bernieres and Dhopal [2015] FAM CA 736.

Any discussion as to surrogacy cannot take place without an adequate discussion about egg donation and the regulation and challenges that it poses.

4.             OVERVIEW OF INTERNATIONAL REGULATION OF SURROGACY

Currently there is no specific international regulation of surrogacy.

There are a number of conventions which incidentally touch upon children born through surrogacy.  They are:

Convention
1980 Hague Child Abduction Convention
1993 Hague Intercountry Adoption Convention
 1996 Hague Children’s Convention
 1980 United Nations International Convention on the Rights of the Child

It might be noted in respect of the International Convention on the Rights of the Child that Australia, although a signatory, has not adopted the Convention as a part of its domestic law.  The High Court commented, however, in Teoh’s Case (Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20) that ordinarily it should be assumed that Australian authorities and courts would interpret legislation to comply with Australia’s international obligations.

One of the objects of section 60B of the Family Law Act, is to give effect to the Convention.

5.         COMMONWEALTH REGULATION OF SURROGACY AND EGG DONATION

How the Commonwealth regulates surrogacy or has involvement with surrogacy currently is as follows:

5.1              There is a scheme under Commonwealth and State agreement about some practices that IVF clinics can’t do, commonly called the Human Cloning Act.  The Commonwealth legislation is the Prohibition of Human Cloning for Reproduction Act 2002.  The key sections of that Act are sections 21 and 24.  Section 21 in effect prohibits, by way of a maximum 15 year jail term, the payment to any sperm, egg or embryo donor other than reasonable out of pocket expenses.  As the High Court noted in Clark & Macourt [2013] HCA56 there is a means within the Human Cloning Act for the import of sperm from overseas (and by implication therefore eggs) where the provider of the sperm and the doctor supplying the sperm in Australia is able to charge a mark-up.

            Section 24 enables parallel State and Territory legislation to sit alongside the Commonwealth Human Cloning Act.  All of the States and the ACT have passed mirror legislation.  The Northern Territory has not.

            The prohibition on the payment to donors has been a strong motivator, also through the severe lack or perceived lack of availability of donors, for Australians undertaking surrogacy to go overseas.

            In the UK, donors are able to be paid up to a set amount.  In the US, in a process which has been described as patient (i.e. donor) focussed and centred, by virtue of an ethical ruling of the American Society for Reproductive Medicine, egg donors are paid between US$5,000 and US$10,000.  The ASRM in that ethical ruling notes that the corresponding rate for the payment for a sperm donor was about US$100.  The process by which a woman becomes an egg donor is much more intrusive than for a man being a sperm donor and involves about 50 hours of time as compared to one hour (including counselling).

            That ASRM ruling has been the subject of a court case in which a number of disgruntled donors are seeking triple damages for being denied adequate payment.

            At the time of writing, the ASRM has, subject to judicial sanction, agreed to removal of the cap.

            I believe it is quite possible in Australia to be respectful of donors and ensure that they are paid if they desire, subject to an appropriate cap so that Australians are not forced to go overseas for egg donation.

            That case illustrates that the capping of payments should be set by statute or regulation, and not the risk of self regulation.

            The purpose of the ban on payment is presumably to prevent exploitation. This can equally be achieved by a cap on payment. Why is it appropriate, because of a shortage of eggs and sperm, for Australian IVF clinics to import from overseas, and conversely for Australian intended parents to go overseas on the great egg hunt?

            Australians have gone (and continue to go) far afield for egg donation including to the US, Canada, Argentina, Spain, Greece, Thailand, Mexico, India, Nepal,  South Africa and Cambodia.

            Unless and until there are more donors in Australia (or at least a perception of more donors) it is inevitable that Australians will continue to travel overseas (or obtain donated eggs for the purpose of surrogacy).

5.2              Research Involving Human Embryos Act 2002 sets out a scheme setting out very clearly what is reflected in the short title.  This Act in effect provides a licensing scheme, in conjunction with the Fertility Society of Australia’s Reproductive Technology Accreditation Committee, of every IVF clinic in Australia.  This licensing scheme is something of which Australians should be proud as it has helped develop, or maintain at least, high quality IVF services in this country.

5.3              NHMRC Ethical Guidelines on the Use of ART in Clinical Practice and Research.  The licensing guidelines have been laid down by the National Health and Medical Research Council.  These guidelines work in conjunction with the RTAC Code of Practice and the Research Involving Human Embryos Act (and its State and ACT counterparts).

The key features are:

·                    The requirement for informed consent.

·                    The requirement for there to be counselling.

·                    The ability of children to know where they have come from when donors have been a part of their conception.

·                    That IVF clinics are unable to facilitate commercial surrogacy.  Draft guidelines have been issued by the NHMRC in which, if adopted, result in some fine tuning of the current Guidelines but the substantive provisions are essentially the same.

Since 2004 the Guidelines have required that children be entitled to know where they came from. We should be encouraging Australians to say at home, not go overseas.


TABLE 2
WILL THE CHILD KNOW WHERE THEY CAME FROM EGG/SPERM OR EMBRYO DONATION?

Australia
Yes – post 2004, earlier in Victoria
UK
Yes
USA
Yes or no, more commonly yes
Canada
Yes
Mexico
No
Argentina
No
Spain
No
Greece
No
India
No
Thailand
No
Nepal
No



That the number of embryos to be implanted into the uterus of the surrogate do not exceed 2.

As to whether or not my child conceived will be able, upon turning 18, to be able to know and to contact any sperm, egg or embryo donor, and if not, why not.

Family Law Act

5.4       The only specific reference under the Family Law Act to surrogacy is under section 60HB, whereby a child who is the subject of a State or Territory parentage order will be recognised as a child of the intended parents.

            The Family Law Act also has various parenting presumptions.  The Family Law Council in its report recommended that there be a Federal Status of Children Act.

            I do not particularly care whether there is a Federal Status of Children Act or whether there is the current scheme of State and Territory Status of Children Legislation, provided that there is a scheme in place and uniformity across the country, both under State and Territory legislation, and under Commonwealth legislation.

            There have been a number of cases in the Family Court of Australia where intended parents have undertaken surrogacy overseas and been told, depending on the judge, that they are parents or not parents. 

Those undertaking surrogacy do so for two purposes:

1)        To have a child; and
2)        To be recognised legally as the parents.

It is a bizarre outcome for many parents (and much worse as a result for the children) that:

a)        They are recognised overseas as the parents of a child, sometimes by court order.
b)        They are recognised under the Australian Citizenship Act.
c)        They are recognised by Medicare and Centrelink as parents; but
d)       They may not be recognised for other purposes under Australian law as parents.

       The most telling example of the differences in approach by Family Court judges were two decisions 4 days apart in 2013.

       In Mason & Mason [2013] FamCa 424, Justice Ryan in dealing with a gay couple who underwent surrogacy overseas formed a preliminary view that, contrary to the view that she had expressed in 2012 in Ellison & Karnchanit [2012]FamCA, that there was a scheme of legislation between the Family Law Act and the State Status of Children Acts and in effect who was and who wasn’t a parent under the State legislation determined who was and who wasn’t a parent under the Family Law Act.

       That case in turn is an illustration of some of the challenges of international surrogacy. The intended parents were UK citizens who later returned to the UK. Then they applied for in the UK parenting orders. They had not applied within 6 months of the twin’s birth, although they had applied promptly in the Family Court of Australia.

       They had to persuade the English court to grant them an extension, so that the “transformative effect” of a parentage order could be made: AB & CD & CT [2015] EWFC 12 (Fam).

       In Groth & Banks [2013] FamCA 430 Justice Cronin found that the Family Law Act overrode the Victorian Status of Children Act, in a donor case, and that the category of who was or who wasn’t a parent under the Family Law Act could be decided on a case by case basis.  The decision in this case has lead to some consternation amongst IVF clinics, particularly when the patient seeking treatment is a single woman (as was Ms Banks) with a known donor (as was Mr Groth).  The point in question is that if a Mason & Mason approach had been decided, then Mr Groth would not have been a parent.  A small number of parents have sought declarations from the Family Court that they are the parents.  As I said, there have been disparate results, leading to uncertainty in the law.

       A vast majority of intended parents will never bring an application to the Family Court unless compelled to, because in addition to all the heartache, delay and cost with which they have undertaken overseas commercial surrogacy is the added cost of an application to the court, which on its face gives them little value.  As clients say to me:

       “If our child has citizenship and a Medicare card, and is entitled to Centrelink, and can therefore be taken to the doctor and be enrolled at day-       care and school, what is the point in spending many thousands of dollars in bringing an application to a court for what is essentially a lawyer’s picnic?”

       Australia has the ability to recognise overseas orders under the 1996 Hague Children’s Convention for other signatory countries (which occurs through a Central Authority) or by means of registration of overseas child orders with the Family Court of Australia.  Registering those orders seems (as I have several underway) to be a slow process and rarely undertaken.  The only jurisdictions for which orders can be registered are those which are set out in schedule 1A of the Family Law Regulations 1994.  These include Papua New Guinea and New Zealand, and most significantly 48 of the 51 US jurisdictions (but excluding South Dakota, New Mexico and Missouri).  Nowhere in Europe is such a jurisdiction, including the United Kingdom.

       A feature of surrogacy in developing countries which in the past has been:

·           India,
·           Thailand
·           Nepal
·           Mexico

and is currently underway in:

·           Laos
·           Cambodia
      
       that surrogacy in those countries is based on contract.  Therefore there will not be the scrutiny of judicial oversight of surrogacy in those countries, whereas surrogacy in Canada, the United States, New Zealand and the UK is with two exceptions, based on judicial oversight.

       In British Columbia and the Ukraine parentage is established by law, not by court order. In Illinois, parentage is usually established by law, but can be established for foreigners by court order.

       Incidentally Australians are now going to Canada in increasing numbers but Canadian orders are not able to be registered.


5.5              Australian Citizenship Act  

The key section is section 16 which provides:

            (1)  A person may make an application to the Minister to become an                        Australian citizen.
            Note:          Section 46 sets out application requirements (which may include            the payment of a fee).
            Persons born outside Australia on or after 26 January 1949
             (2)  A person born outside Australia on or after 26 January 1949 is eligible to        become an Australian citizen if:
                     (a)  a parent of the person was an Australian citizen at the time of the birth; and
                     (b)  if the parent was an Australian citizen under this Subdivision or                Subdivision AA, or section 10B, 10C or 11 of the old Act (about                               citizenship by descent), at the time of the birth:
                              (i)  the parent has been present in Australia (except as an unlawful                                 non-citizen) for a total period of at least 2 years at any time                                  before the person made the application; or
                             (ii)  the person is not a national or a citizen of any country at the                          time the person made the application and the person has never                                   been such a national or citizen; and
                     (c)  if the person is or has ever been a national or a citizen of any                                country, or if article 1(2)(iii) of the Stateless Persons Convention                            applies to the person, and the person is aged 18 or over at the time the                     person made the application--the Minister is satisfied that the person                       is of good character at the time of the Minister's decision on the                         application.
            Persons born outside Australia or New Guinea before 26 January 1949
             (3)  A person born outside Australia or New Guinea before 26 January 1949                      is eligible to become an Australian citizen if:
                     (a)  a parent of the person became an Australian citizen on 26 January                       1949; and
                     (b)  the parent was born in Australia or New Guinea or was naturalised                     in Australia before the person's birth; and
                     (c)  if the person is or has ever been a national or a citizen of any                                country, or if article 1(2)(iii) of the Stateless Persons Convention                            applies to the person--the Minister is satisfied that the person is of                                    good character at the time of the Minister's decision on the                                                 application.”

The question under section 16 is who is a parent?

When one looks at the Australian Citizenship Act, then at first blush it would appear that the vast majority of children born via surrogacy are not eligible for Australian citizenship.  This is because section 8 of that Act prescribes that when there has been an artificial conception procedure and sections 60 and 60HB of the Family Law Act apply, then who is a parent is determined by those sections.

Section 60HB is of limited value because that concerns domestic surrogacy orders.

Section 60H essentially provides parenting presumptions, one of which is that in broad terms when a couple undergo IVF that couple will be the parents and not any donors.  In the surrogacy context, if section 60H were to apply to overseas commercial surrogacy arrangements, then the surrogate and her husband would be the parents, not the intended parents, a truly bizarre result.

5.6              Australian Citizenship Instructions.

Instead, the approach taken by the Department of Immigration and Border Protection is consistent with its Australian Citizenship Instructions.  These are not law, but internal guidelines for the benefit of Departmental Officers.

The instructions reflect the Department’s position.  Until 2010 the Department was of the view that those children who were born overseas, claiming Australian citizenship needed to show a genetic link with their parent or have the parental child relationship recognised under the Family Law Act.  That view was rejected by the Full Court of the Federal court in H v Minister for Immigration [2010] F CAFC119 in which the court formed the view that who is and who is not a parent was a matter as seen in the broader community and not limited to DNA.  Since that time, the Department has recognised that there does not need to be a genetic link for those undertaking surrogacy overseas to the child, but that what is required to be proven, in accordance with the rule is that at the date of birth of the child the particular person was apparent.  This is proven in a number of ways such as:

·                    The making of an order in the overseas country (such as the Superior Court of California at Los Angeles), and by similar means.  So as to be conscious of Australian international obligations, including preventing child trafficking, the Department’s position is to ensure that if there isn’t a genetic link that the applications are subject to the utmost scrutiny.  This is an entirely appropriate stance to take.

Due to accidents of birth or quirks of medicine, Australians have undertaken surrogacy overseas where there is no genetic link.

Example
Siobhan is aged 38.  Her husband is Hugh, 40, Siobhan is a cancer survivor and is
neither able to produce eggs nor carry a child.  She is desperate to have a child.  In
order to become a parent they need the help of an egg donor and a surrogate.
A quirk of US law might make a difference as to whether a child is a citizen.  In
Australia the presumption under Status of Children legislation is essentially that, as
has been the case since the Emperor Justinian, the search is to find out who is the
father as the mother is always certain mater certa semper est.  In other words, the
woman who gave birth is the mother.  This notion is problematic when it comes to
surrogacy.  In US States like California pre-birth orders are made in surrogacy.
Usually when the surrogate is about 28 weeks pregnant an order is made in favour of
the intended parents that they are the parents of the unborn child.  This is because, as
they intend to be parents they are recognised under Californian law, by virtue of case
law, as the parents.

When the child is born, the order is provided to the Office of vital Statistics, the birth
certificate issuing showing the intended parents as the parents.  Siobhan and Hugh go
to Minnesota for surrogacy. Minnesota has a three step process involving 3 birth
certificates and 3 court orders:

1.         The child is born, showing the surrogate and her husband as the parents.
2.         A post-birth order is then made, giving custody to Hugh.
3.         A second order is then made terminating the parental rights of the surrogate and her husband, in favour of Hugh.
4.         A second birth certificate then issues showing Hugh as the parent.
5.         A third court order is made enabling a step-parent adoption in favour of the other intended parent (whether male or female), in this case Siobhan.
6.         A third birth certificate issues recognising both Hugh & Siobhan as the parents.

Aside from the issue as to whether the order could be registered under the Family Law


Act, the final order made in Minnesota puts beyond doubt that the step-parent is a
parent by virtue of adoption because the definition of child under section 3 of the
Australian Citizenship Act recognises adopted children and children under the Family
Law Act.  The Family Law Act in turn in section 4 recognises children as including
adopted children and parents as including adoptive parents.  Therefore, subject to the
ability to register the order, there is the rather odd outcome that a genetic father may
or may not be a parent under Australian law, but the non-genetic father or genetic
mother or non-genetic mother would be a parent by virtue of step-parent adoption!

That step-parent adoption in turn while at first blush appears to have difficulties with
the Hague Intercountry Adoption Convention does not because of regulation          of
the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
[check with Minnesota case law – check Steve Snyder long letter).



Officers of the Department of Immigration and Border protection have not, with one exception, notified State or Territory Authorities that intended parents have undertaken commercial surrogacy arrangements overseas.

The Department, and the Department of Foreign Affairs and Trade has notified Australian intended parents on their websites about potential criminal risks.  The reality, as chief Justice Bryant and Chief Judge Pascoe have previously stated publicly, is that no one has been prosecuted under these laws and they don’t work.

The research undertaken by Everingham and Stafford-Bell & Hammarberg published in the Medical Journal of Australia[1] is that the issue of criminality overseas and the fear of prosecution is not a significant factor for those who wish to undertake overseas surrogacy.  The implication is that those who wish to be parents wish to be parents and do not wish the Government to stop them.  The challenge is to balance the innate desire and indeed as the United States Supreme Court described the right to reproduce and the protection of all involved, but particularly the surrogate and the child.




5.7              Australian Passports Act 2005

In 2012, without apparent legislative authority, Passports Australia decreed for the purposes of 5.11 of the Act  that those undertaking surrogacy overseas when applying for an Australian passport for the child needed to obtain the consent of the surrogate in writing, as she had parental responsibility.

If the presumptions under the relevant Status of Children legislation were to apply overseas and the surrogate, as happens more often than not, were married, the logical conclusion of that edict is that the consent of the surrogate and her husband are both required.
For those undertaking surrogacy in the United States and Canada, the making of the court order, or administrative process in places such as Illinois or British Columbia is such that the parental rights of the surrogate and her husband are terminated.  They do not have, for example, rights of custody under the Hague Child Abduction Convention.  Children’s passports only last 5 years.  It is unclear what is to happen when those passports come to be renewed.  The experience I have heard from two families is that the surrogate’s consent was not required on the new passport application.  Why ought that be the case?  If the surrogate had parental responsibility as at the birth of the child, surely the surrogate retained parental responsibility at the time of renewal of the passport.

The cure to the problem from a legal point of view given the attitude of the Department is to obtain an order in the already burdened Family Court of Federal Circuit Court or in the case of orders made in most parts of the United States to register the relevant order under the Family Law Act, or to write to the Department and point out that the view in its edict is incorrect as a matter of law and that the effect to of the order (or administrative process) in the overseas country means that at the relevant time the surrogate did not have parental responsibility.

Aside from section 70G of the Family Law Act, Australia is a party to the 1996 Hague Children’s Convention[2] which, although not recognised in the formation of the parent/child relationship, recognises orders made in signatory countries.  It is significant that all the developing countries in which surrogacy has been undertaken recently are not signatories to that Hague Convention.

Canada is also not a signatory to that Hague Convention, and it would be helpful in my view, if the Australian Government were to diplomatically engage with Canada to seek for it to sign that convention.

In Carlton & Bissett [2013] FamCA143 Justice Ryan in the Family Court recognised a South African man’s claim to being a parent, based on a South African surrogacy order.  The order was unusual in that in South Africa an order for surrogacy is made before the process begins.  It is a pre-approval process.  Once the children were born the man was deemed by virtue of the order to be the parent.  Her Honour said that the order could not be registered in Australia because although it was the right type of order to be an overseas child order within the meaning of the Family Law Act, South Africa was not a prescribed overseas jurisdiction within the meaning of schedule 1A of the Family Law Regulations.  Instead, her Honour relied on the comity approach and said to the effect that the man was from South Africa, was recognised in South Africa as the parent and therefore that order should be recognised in Australia.

5.8       Health Insurance Act 1973
            Intended parents face an uphill battle to obtain a Medicare card for their child before the making of a parentage order. It may take 6 months or more before an order is made. Some intended parents have had no difficulty, others seemingly have hit the rock of bureaucracy which has initially denied ANY Medicare card issuing for the child. The current policy position is set out in the letter from the Department of Health to me dated 2 February 2016 attached.



6.       STATE AND TERRITORY REGULATION

   Before detailing the various state and territory laws, I thought it helpful to set out tables about various aspects to do with surrogacy.


Going overseas for egg donation

Table 3
State/Territory
Human Cloning Act
Human Tissue Act
Longarm
Commonwealth
s.21, 24 Prohibition of Human Cloning for Reproduction Act 2002 Not relevant: Research Involving Human Embryos Act 2002
N/A
N/A
Qld
s.17 Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003
s.42 Transplantation and Anatomy Act 1979
s.12 Criminal Code 1899
NSW
s.16 Human Cloning for Reproduction and other Prohibited Practices Act 2003
s.32 Human Tissue Act 1983
s.10C Crimes Act 1900
ACT
s.19 Human Cloning and Embryo Research Act 2004
s.44 Transplantation and Anatomy Act 1978
N/A
Vic
s.17 Prohibition of Human Cloning for Reproduction and Other Prohibited Practices Act 2003
s.38,39 Human Tissue Act 1982
N/A
Tas
s.20 Human Cloning for Reproduction and Other Prohibited Practices Act 2003
s.27 Human Tissue Act 1985
N/A
SA
s.16 Prohibition of Human Cloning for Reproduction Act 2003
s.35 Transplantation and Anatomy Act 1983
s.5G Criminal Law Consolidation Act 1935
WA
s.53Q Human Reproduction Technology Act 1991
s.29 Human Tissue and Transplantation Act 1982
s.12 Criminal Code 1913
NT
N/A
s. 22E, 22F Transplantation and Anatomy Act
s.15 Criminal Code


Going overseas for commercial surrogacy- prohibitions
Table 4
State/Territory
O/s prohibited?
Law
Longarm
Penalty
Commonwealth
No
N/A


Qld
Yes- commercial
s.56 (entering), 57 (paying) Surrogacy Act 2010
s. 54 Surrogacy Act 2010, s.12 Criminal Code 1899
3 years, 100 penalty units
NSW
Yes- commercial
s. 8,9 Surrogacy Act 2010
s.11 Surrogacy Act 2010, s.10C Crimes Act 1900
2,500 penalty units for corporation, 1,000 penalty units or 2 years for natural person
ACT
Yes-commercial
s.41 (entering), 42 (procuring) Parentage Act 2004
s.45 Parentage Act
1 year, 100 penalty units
Vic
No
s.44 Assisted Reproductive Treatment Act 2008
N/A

Tas
No
No- but be careful of s.40, 41 Surrogacy Act 2012
N/A

SA
No- if careful. Law purports to make ALL overseas surrogacy (commercial and altruistic require A-G’s consent)
No- if careful s.10F as to “prescribed international surrogacy agreement”, “surrogacy contract”, 10HA Family Relationships Act 1975
s.5G Criminal Law Consolidation Act 1935
1 year
WA
Yes- commercial- if entered into in WA
Must not be entered into in WA: s.8, s.11 (services) Surrogacy Act 2008
s.12 Criminal Code 1913
$24,000 or 2 years: s.8; $12,000 or 1 year: s.11
NT
No
N/A



Prohibition of advertising for donors
Table 5
State/Territory
Law
Longarm
Commonwealth
N/A

Qld
s.41 Transplantation and Anatomy Act 1979 – doctors only
s.12 Criminal Code 1899
NSW
N/A

ACT
N/A

Vic
s.40 Human Tissue Act 1982: generally prohibited, but egg donor allowed through VARTA
N/A
Tas
N/A

SA
N/A

WA
s. 30 Human Tissue and Transplantation Act 1982
s.12 Criminal Code 1913
NT
N/A


Advertising for surrogates
Table 6
State/Territory
Law
Longarm
Commonwealth
N/A

Qld
s.55 Surrogacy Act 2010
s.54 Surrogacy Act 2010, s.12 Criminal Code 1899
NSW
s.10 Surrogacy Act 2010
s.11 Surrogacy Act 2010, s.10C Crimes Act 1900
ACT
s.43 Parentage Act 2004
s.45 Parentage Act 2004
Vic
s.45 Assisted Reproductive Treatment Act 2008
N/A
Tas
N/A but cf. s.41 Surrogacy Act 2012
N/A
SA
N/A but consider s.10H(2) Family Relationships Act 1975
s.5G Criminal Law Consolidation Act 1935
WA
s.10 Surrogacy Act 2008
s.12 Criminal Code 1913
NT
N/A





7.         QUEENSLAND
The process in Queensland to obtain a parentage order is:

·                A written surrogacy arrangement
·                Before it is signed the parties have independent legal advice and counselling.
·                Post birth an independent report is obtained as to the best interests of the child.
·                A parentage order is made by the court.
·                The birth certificate is able to be altered easily to recognise the intended parents.

Table 7.
WHO CAN BECOME A PARENT UNDER DOMESTIC SURROGACY?
STATE
TERRITORY
Married heterosexual
couples
Heterosexual
de facto
couples
Gay couples
Lesbian couples
Single men
Single women
QLD
NSW
ACT
X
X
VIC
TAS
SA
X
X
X
X
WA
X
X
NT
X
X
X
X
X
X


In 2012 then Attorney-General Jarred Bleijie proposed, without reference to the Cabinet of the Newman Government, to alter the Surrogacy Act for two purposes:

a.       To remove the recognition of non-biological lesbian mothers as parents;
b.      To criminalise surrogacy in altruistic arrangements if the intended parents were a same sex couple or single.
I and others opposed those proposed changes (which were never considered formally by the Newman Government). The Attorney dropped the proposal to remove the recognition of lesbian co-mothers. He then dropped the proposal to criminalise those entering into surrogacy arrangements in which the intended parents are same sex couples or single people. Ultimately the proposal was deferred. The proposals were actively opposed by the then Labor opposition.
The proposals were put forward on the basis that every child deserved a mother and a father, a position that was actively opposed by the Queensland Law Society as being a “miscarriage of justice”.
In my view the model of regulation of surrogacy in Queensland would be my preferred model if there were to be national laws, subject to:
a.       The ability to have commercial surrogacy;
b.      The removal of the overseas ban; and
c.       Some minor tinkering with the Act in light of almost six years.
One of those changes, for example, is to ensure that the current 6 month time limit to make parenting order applications is flexible, including for those who underwent surrogacy before legislation.
The 6 month time limit has been adopted nationwide, following the enactment of the Parentage Act 2004 (ACT).  It appears to have no rhyme nor reason, being accepted from similar UK legislation. The 6 month time limit appear to have origins from a House of Commons MP’s constituency concerns and has been utilised by the courts, including the President of the High Court’s Family Division. Re X (A child) (Surrogacy Time Limit) [2014] EWHC3135 (Fam).
I put forward the Queensland model not because I’m a Queensland lawyer (as I have appeared and obtained orders under relevant legislation also in South Australia, Victoria and New South Wales and advised clients in all States and Territories about domestic and international surrogacy laws), but because I consider the Queensland model:
a.       Is respectful of those who are involved in the process
b.      Is non-discriminatory, including as to payment of the surrogate’s expenses
c.       Is flexible
d.      Does not impose undue costs and delays upon the parties
e.       Fertility treatment can occur anywhere in the world
f.       Has sufficient checks and balances, in particular the obtaining of reports from independent experts, but especially that of the post birth report that the proposed order is in the best interests of the child
g.      Empowers and protects the surrogate, including attaining for the payment of life, health and income protection insurance.
If the cooperation of the states were forthcoming and the Commonwealth were to provide sufficient resources, the ideal model in my view would be to have a national model based on the Queensland Act with orders to be made in the Federal Circuit Court of Australia or the Family Court of Australia.
I was concerned when surrogacy laws were enacted some years ago that the courts which could make orders were State Courts. My concern was twofold:
a.       That if something goes wrong between the parties such that a parentage order cannot be made then someone has to commence separate proceedings under the Family Law Act, a very costly and slow process and doubling up. Those proceedings under the Family Law Act will not transform the intended parents to be parents. This is a problem with the surrogacy legislation across the country. If a surrogate or her partner improperly vetoed the making of a parentage order (as can still happen), there is no relief on the part of the intended parents to make them parents, which aside from any concern from themselves, has potential lifelong impact upon the child.

b.      Because the courts were primarily courts that dealt with criminal matters I was concerned that the judge may not have the relevant expertise in dealing with surrogacy.
I have been delighted however, by the approaches of State judges. I have dealt with difficult matters in South Australia, Queensland and Victoria. My experience of judges in the four jurisdictions is that they are first and foremost concerned for the welfare of the child and concerned in a very sensitive manner with the needs of the surrogate and of the intended parents. They have handled some very difficult matters in a very sensitive manner with the hope at least that any breakdown of trust between the surrogate and/or her partner and the intended parents is able to be repaired over time, for the benefit of the child.
State judges have had flexibility at times as to how they will handle matters. It has been heart-warming, for example, in a mother/daughter surrogacy in which I acted in New South Wales for all four parties and the baby to be welcomed into the judge’s chambers. It was similarly heart-warming for a judge in South Australia to sit with the parties in the round in a regional courthouse so as to enable my clients (the surrogate and her husband) to feel comfortable and at ease and all parties to feel equal and not dominated by the court.
It has been heart-warming to see that the practice in the County Court of Victoria is to enable photographs to be taken in courtroom and for the presiding judge to hand the intended parents a teddy bear.
It has been wonderful to hear judges tell intended parents (who often went through great trials and tribulations before undertaking a surrogacy journey of between eighteen months and four years), that they have done everything they could to comply with the law, to hear the surrogacy matter was “a wonderful way to start the week” and “I have no doubt you will be wonderful parents” and “congratulations”!
I cannot understate the importance to all parties involved of what an English judge has described the making of a parentage order as being of a transformative effect but for the intended parents to achieve the imprimatur of the state in such a visible manner that they are recognised as the parents.
A feature of the Queensland and Tasmanian Surrogacy Acts is to spell out that the birth mother has the same rights as every mother to manage her pregnancy and childbirth. This is wonderfully empowering. I insist that a term to this effect is in every domestic surrogacy I do because the feedback I have received from surrogates is that it is wonderfully empowering.

8.         NEW SOUTH WALES
New South Wales, along with Victoria, South Australia and Western Australia, has State based regulation of industry and this is contained in Assisted Reproductive Technology Act 2007 and the Assisted Reproductive Technology Regulation 2014. Some requirements of this legislation include:-
·         There is a state based central register involving all children conceived through gamete donation, including children conceived through surrogacy
·         It is mandatory for an IVF clinic to obtain a report from the relevant professional before proceeding with a surrogacy arrangement
·         There is a procedure for consent as to embryo egg and sperm donation
·         It is only possible to export from New South Wales (whether interstate or overseas) any donor gamete, including embryos conceived from a donor gamete, when the written consent of the donor (which can be withdrawn at any time) is first obtained.
The Surrogacy Act in turn is modelled on the Surrogacy Act 2010 (Qld). New South Wales, like Queensland, requires:-
·         A written surrogacy arrangement
·         Pre-signing counselling and independent legal advice of all parties
·         No discrimination as to who is to be a parent
·         Fertility treatment can occur anywhere in the world
·         A post birth report is obtained – an independent assessment report
·         It is a criminal offence to enter into a surrogacy arrangement, whether in New South Wales or anywhere else in the world, if the relevant party is ordinarily resident/recent in or domiciled in New South Wales.
Whilst this is the case in Queensland, NSW & Tasmania, the great check and balance is that the intended parents still have to obtain approval from an Australian judge and not have to put before the judge evidence.
New South Wales also has a requirement for post birth relinquishment counselling of the surrogate and her partner. Typically that counselling is undertaken by the person who has undertaken the pre-birth counselling and screening.
Relinquishment counselling can be a positive process, for the benefit of the surrogate and her partner. When the counsellor has been the same, then this can provide a supportive environment for the surrogate and her partner. However, when the counsellor is the third counsellor to be seen by the surrogate and her partner, namely:-
·         Pre-signing counselling and screening
·         Independent Assessment Report
·         Post-birth relinquishment counselling;
Undertaking this counselling can be particularly burdensome to the surrogate and her partner.
9.         AUSTRALIAN CAPITAL TERRITORY
The ACT was the pioneer when it came to surrogacy laws in Australia. The ACT does not have territory based regulation of it’s IVF industry, but relies on NHMRC ethical guidelines.
A number of features of the Parentage Act 2004 are:-
·         There is pre-signing counselling and independent legal advice.

·         The surrogacy arrangement does not, however, have to be in writing. In my view it is essential that the surrogacy arrangement is in writing so as to provide absolute clarity as to the intention of the parties.

·         The surrogate must be married or in a de facto relationship. There is no ability for a surrogate to be single. I have seen surrogacy arrangements that have been successful both locally and overseas with single surrogates. This requirement in my view is not necessary.

·         There must be two intended parents. Again, I’ve seen successful surrogacy arrangements where there has been a single intended parent and there would appear to be no reason for this requirement.

·         The embryo transfer must occur in the ACT. Therefore, the embryo can be created elsewhere, such as Queensland or New South Wales. There are only two clinics providing surrogacy services in the ACT. If the intended parents do not wish either of those clinics to provide them with service, all they need do is to move, towards the end of the surrogacy arrangement, to Queanbeyan so that the surrogacy arrangement from the beginning is in a New South Wales surrogacy arrangement.  The same will apply for any single intended parent in the ACT.
Because the basis of surrogacy regulation throughout Australia is essentially where the intended parents reside, the ACT rules are exported in applicable cases. For example if a couple in the ACT find a single surrogate in Victoria, they cannot proceed with surrogacy in the ACT because of the requirements of the Parentage Act. The intended parents must intend to move to New South Wales well and truly before a parentage order is made there, in order to qualify that arrangement as a New South Wales surrogacy arrangement.

10.       VICTORIA
A leading IVF doctor describes the regulation of IVF and therefore surrogacy in both Victoria and Western Australia as “Stalinist”. While this is a wild exaggeration, it is fair to say that the level of regulation of the IVF industry and surrogacy in both Victoria and Western Australia is extremely onerous.
I’ve had clients from Melbourne who decided they would go overseas rather than pursue surrogacy any further in Victoria. This is because the IVF clinic they were attending required them to undertake surrogacy counselling, which counselling had been scheduled over eighteen months! At the end of that eighteen months, they hadn’t commenced the surrogacy arrangement. One would expect, all things going well, wherever they might have gone in the world, the intended parents would have become parents via surrogacy in eighteen months to two years, if things did not go so well, usually due to medical reasons, three to four years. Therefore this couple could have had a baby in the time that the counselling was taken to be completed!
Victoria has state based regulation of its IVF industry, primarily under the Assisted Reproductive Treatment Act 2008 and the Assisted Reproductive Treatment Regulations 2009.
The regulation is extensive and comprehensive. Victoria has a statutory authority the Victorian Assisted Reproductive Treatment Authority (VARTA) and a statutory authority for the approval of surrogacy arrangements and treatment for ART, the Patient Review Panel.
Victoria alone requires a criminal history check and a child welfare check before proceeding with surrogacy. I note that in all matters in which I’ve been involved for a number of years, I have insisted that as part of the pre-signing screening that the counsellor ask the intended parents and the surrogate and her partner about any criminal history or child protection history so this is dealt with in a transparent manner. I note that it is common practice in matters in the surrogacy arrangements in the United States that nationality is also addressed, again in a transparent manner.
The ART Act has a presumption against treatment, whether for ART generally or for that matter surrogacy.
Despite all this regulation, Victoria contains some quirks:-
·         In essence the intended parents must live in Victoria for the whole period. A criticism that can be made of all jurisdictions other than Queensland and New South Wales is this requirement for residence. Those who due to work requirements, such as locum doctors working in a public hospital system who of necessity move to where patient demand is the greatest throughout the country, may well of their nature fail this residency requirement (and feel that it may be more appropriate to undertake surrogacy overseas).
·         There is no discrimination as to who may be a parent

·         The presumption against treatment has meant that on rare occasion the State has decided that a person may not be a parent. Last year there was a case in the Victorian Civil and Administration Tribunal[3] in which the intended parents were refused ART due to the intended other’s child protection history.  The case made headlines and was criticised overseas because it was perceived that intended parents did not have autonomy or choice about whether or not they could become parents but instead it was decided by a nanny state.

·         There is a pre-signing counselling and legal advice

·         The surrogacy arrangement must be approved by the Patient Review Panel. Curiously the surrogacy arrangement need not be in writing. This has led to problems in at least one case where it would appear that the intended parents and the surrogate had different views about their respective roles after the birth. Those different views could have been avoided at least in part by having a written surrogacy arrangement.

·         Victoria allows its residents to undertake overseas surrogacy arrangements and enter into donor egg contract overseas. Prior to 1 January 2010 it was a criminal offence for those in Victoria to enter into a surrogacy arrangement overseas. That was repealed with the commencement of the Assisted Reproductive Treatment Act 2008, curiously just before New South Wales by contrast criminalised clearly for the first time those undertaking commercial surrogacy overseas with the passing of the Surrogacy Act 2010 (NSW). The contrast was illustrated starkly when the New South Wales Act was commenced on 1 March 2011 and yet one month later VARTA ran a seminar on cross-border reproductive care, including having an Indian IVF doctor attend and speak in Melbourne. The difference for those residing in places such as Albury/Wodonga is stark. In Albury there is great flexibility as to the procedure with the surrogacy arrangement and there is not a requirement to have state based approval, so it is perceived to be cheaper and quicker to undertake surrogacy in New South Wales. However for those who wish to proceed overseas, it is potentially a criminal offence being committed if they were to live in Albury, but not in Wodonga.

·         In one such case a couple in New South Wales decided that they wished to undertake commercial surrogacy overseas. In order to undertake that legally, they rented a home twenty minutes away, across the Victorian border and continued to commute to work in New South Wales. They undertook commercial surrogacy overseas legally living in Victoria.


·         Victoria does not require a post-birth surrogacy report nor post-birth counselling. I was involved in a case where a surrogacy arrangement went badly wrong. I was for the intended parents. The parties did not have a written surrogacy arrangement, despite having patient review panel approvals. They had disparate views about the surrogate’s role, which may well have been able to be dealt with by either post birth counselling or by an independent assessment report such as in Queensland or New South Wales.

After a number of Court appearances, a court order was obtained for such a report. This was the first such report undertaken by the noted expert who was the leading expert in Victoria. The report was able to identify and at least in part diffuse tensions between the parties which then enabled a parentage order to be made. A preferable approach would have been to have the independent assessment report as part of the ordinary process.

·         VARTA approval is required for the export or import of any donor gametes.

·         There are specific rules about how written consents are provided.

·         While the surrogate and her partner are entitled to independent legal advice before entering into the surrogacy arrangement, it is an offence to pay lawyers for the surrogate and her partner to get legal representation on the making of a parentage order!  The definition of expenses would also appear to exclude the surrogate obtaining life and disability insurance.  Each of these appears to leave the surrogate, her partner and their children vulnerable.
Curiously, one of the features I’m now observing is an upsurge (the numbers are unclear) of Victorians undertaking surrogacy in Canada. Surrogacy in Canada can be lawfully undertaken (if carefully dealt with) for those living in Queensland, New South Wales and the ACT, because it is altruistic surrogacy. There is no advantage to those in Victoria undertaking surrogacy in Canada, as opposed to the United States, other than perception as to cost. It is marginally cheaper to undertake surrogacy in Canada as opposed to the same places in the U.S.
Victoria like New South Wales has a central register. Victoria has certainly led the way in being open about donations.
In 2014 Victoria, with bipartisan agreement, legislated for registration orders.  In cases of interstate parentage orders, Victoria now requires that after an interstate parentage order has been made that a further registration order in Victoria is made.  I would estimate that that when an interstate parentage order has been made this will add say $10,000 to the parties’ bill.


Illustration of how a registration order works
Michael and Frida live in Sydney.  Their former neighbours are Tamara and Will who used to live in Sydney but moved to Melbourne.  Michael and Frida have had long term infertility problems and have been unable to have children.   Tamara offers to be their surrogate.  A surrogacy arrangement is entered into.  Because Michael and Frida live in Sydney, it is a New South Wales surrogacy arrangement.  It goes well.  A child is conceived and born – in Melbourne.
Michael and Frida apply to the New South Wales Supreme Court for a parentage order under the Surrogacy Act 2010 (NSW).  In considering whether to make an order, the judge considers all the affidavit material and in particular the pre-signing counsellor’s report, the independent assessment report and the surrogacy relinquishment report.  The judge is required to make an order in the best interests of the child.  A parentage order is then made.
By virtue of section 60HB of the Family Law Act 1975 (Cth), Michael and Frida are parents under the Family Law Act (and therefore one would consider for all purposes under Australian law).
Except in Victoria.  In Victoria under the Registration Act they are not considered to be the parents.  Michael and Frida must make a separate application for a registration order in Victoria in order to alter the birth register to show that they and not Tamara and Will are the parents.
Michael and Frida have to show that they did not seek to evade Victoria’s laws concerning ART, and that the proposed order is in the best interests of the child.
One would expect that they would have to appear in Court, represented by lawyers as well as having Tamara and Will represented (which may well be an offence in Victoria as I outlined above).
Why is it the case that a Court in Victoria has to determine whether a registration order is in the best interests of a child when the Supreme Court Judge in New South Wales has already made that determination?


If Tama & Will lived in Queensland
By contrast, imagine if Tamara and Will lived in Brisbane.  After obtaining their order in the New South Wales Supreme Court, Michael and Frida fill out a form for the Registrar of Births, Deaths and Marriages in Brisbane.  Within 2 – 5 business days of that form and the order being lodged with the Registrar of Births Deaths and Marriages in Queensland, the births register for that child is altered to reflect that Michael and Frida are the parents.


If Tamara and Will lived in Adelaide or Darwin

Once the NSW order were made, there could be No Alteration of the birth register in either place.
A new birth entry would have to be made in NSW. (In some States, this may not be possible). The SA or NT entry would then be closed, and the NSW entry altered to reflect the NSW order.


11.       TASMANIA
Tasmania does not have State based regulation of its IVF industry, but relies on the NHMRC Ethical Guidelines.
There are currently two IVF clinics in Tasmania, one in Hobart and one in Launceston.  The Surrogacy Act 2012 (Tas) was introduced as a Bill to Parliament in 2011 by the then Labor Government.  It is, in broad terms, similar to the Queensland Act.  The then Tasmanian Attorney General rejected the Western Australian Surrogacy Act because it was considered to be too restrictive with only a small number of surrogacies being approved in Western Australia over a number of years.  It was seen that the model adopted in Queensland and New South Wales was more flexible.
When the Bill was introduced, at first it allowed for oral surrogacy arrangements to be entered into.  Following an Upper House inquiry, the bill was amended to ensure that only written surrogacy arrangements were entered into.  Various MP’s were concerned about the potential for exploitation of surrogates.
A curious feature introduced following the Upper House inquiry was a requirement that, subject to dispensation by a Magistrate, all the parties must come from Tasmania i.e. the surrogate and her partner and the intended parents.  The nature of surrogacy is that the parties enter into a surrogacy arrangement today to have a child at best 18 months to 2 years, at which time they then need the dispensation of a Judge.  It is submitted that this requirement is not needed.  It somehow places a surrogate who might live interstate or overseas (but is still a family member) at a disadvantage because a clinic may be reluctant to treat due to the uncertainty of knowing whether a parentage order was ultimately able to be made.

Interstate and overseas altruistic surrogacy arrangements
The view by State legislatures that in essence surrogacy occurs within that State’s borders, but not outside that State’s borders does not reflect reality.  In my practice alone clients have undertaken an altruistic surrogacy in the following circumstances:
Intended parents reside in
Surrogate and/or partner reside in
Medical treatment occurred in
Queensland
New South Wales
New South Wales
New South Wales
New South Wales
Queensland
New South Wales
Queensland
Queensland
ACT (to move to NSW as a NSW arrangement)
Queensland
Queensland
ACT
India (family arrangement)
Did not proceed*
* Ironically this was at the time that many Australians undertook commercial surrogacy in India both the Indian and Australian focus was on commercial surrogacy occurring in India, not an altruistic arrangement and it appeared an altruistic arrangement could not occur without .great difficulty, both due to Australian and Indian regulations.

New South Wales
USA
NSW
New South Wales
Victoria
NSW
New South Wales
WA
Queensland
Queensland
SA
Queensland
NZ
SA
USA
Victoria
NT
Victoria*
·         I was aware of but did not act in this matter










12.       SOUTH AUSTRALIA
South Australia, like New South Wales, Victoria and Western Australia regulates it’s IVF industry. It primarily does this under the Assisted Reproductive Treatment Act 1998 and Subordinate Assisted Reproductive Treatment Regulations 2010. That Act is much less proscriptive than the legislation in Victoria or Western Australia or even New South Wales. The act requires the best interests of the child to be of paramount concern in the provision of  treatment. It does however have a licensing requirement, which then has an impact beyond South Australia. The licensing required under the Act enables provision of ART services to married couples and heterosexual couples, single women when they have fertility needs and lesbian couples only when there is an infertility issue. Therefore, ART services are unable to be provided in South Australia (without there being a challenge under say the Sex Discrimination Act), for gay couples or single men.
This regulation impacts in the Northern Territory. The only IVF clinic in the Northern Territory is the largest IVF clinic in South Australia, Repromed. The doctors who provide service in the Northern Territory are subject to licenses under the South Australian Act. Repromed in turn is part of the listed Monash Group.
South Australia has a similar model of surrogacy regulation to that in Queensland, New South Wales, the ACT and Tasmania. Some requirements are:-
·         There must be a written surrogacy arrangement

·         Before it is entered into the parties must attend upon one counsellor for counselling/screening

·         The parties must have independent legal advice

·         For arrangements entered into after July 2015 the surrogate must be offered post-birth counselling

·         The intended parents must reside in South Australia during the whole surrogacy arrangements

·         All the fertility treatment (being the creation of the embryo and the transfer) must be undertaken in South Australia.

·         Surrogacy is only open to married or heterosexual de facto couples. It is not open to gay or lesbian couples or single intended parents. These people of necessity undertake surrogacy undersea (and occasionally interstate).

·         On the face of it, those undertaking surrogacy overseas need the consent of the state Attorney General.

·         South Australia unlike everywhere else does not allow a veto on the part of the surrogate’s partner. His views can be taken into account as to whether to make an order under the Family Relationships Act, but his consent is not required


·         If the surrogate is in a lesbian relationship, although the surrogate’s partner would be a parent under the Family Relationships Act, it is unclear if the partner’s views could be taken into account by the court as they are not mandated to be taken into account.
I have had a number of South Australian clients say to me that they wish to undertake fertility treatment interstate, such as in Sydney, for their surrogacy arrangement. Whilst residing in South Australia they are unable to access that fertility treatment of their choice.
South Australia is currently undertaking a review of its legislation as to LBGTI discrimination with a view to removing that discrimination. When amendments to the Family Relationships Act were debated in the South Australian Parliament in 2014 and 2015, the issue of that discrimination was specifically raised in parliament but resulted in no change to the Family Relationships Act or the ART Act along those lines. The discrimination remains.
The 2015 amendments came about through a private member’s bill. Due to a case that I’ve been in in South Australia I saw, and was successful, in obtaining three amendments to that amendment bill. Prior to the amendment, the requirement under the Family Relationships Act was that the pre signing counselling was undertaken by three counsellors. One counsellor saw all four parties. Then that counsellor referred the parties off to two other counsellors – one counsellor to see the intended parents and one counsellor to see the surrogate and her partner. There is no requirement in South Australia for a report to be provided by any of these counsellors (whether before the 2015 amendments or after). These reports are often enlightening reading in which any risks are able to be identified, dealt with and mitigated. It is quite possible (indeed appeared to occur in the case in which I was involved) that by having separate counsellors, the intended parents and the surrogate and her partner did not have a shared vision of what was to occur with the surrogacy, but is quite possible to have disparate views.
By having one counsellor seeing all parties and therefore having control of the counselling process should ensure that the parties have the same vision about the surrogacy and about their hopes and wishes for the child, including any ongoing involvement of the surrogate and her partner.
There was also no requirement in South Australia for any post-birth assessment or counselling. This had the potential to lead to a surrogate feeling particularly vulnerable and unsupported and indeed occurred in the case in which I was involved (in which I acted for the surrogate and her husband). Now there is the ability for the surrogate to be provided with that counselling. My preference would be for there to be an independent assessment report process much as in the way as happens in New South Wales and Queensland. So if something has gone wrong post birth it is able to be identified and dealt with with evidence that is able to be properly placed before the judge, so that there is proper judicial oversight. Otherwise a judge may be acting in a vacuum, not knowing that there has been a problem post-birth, nor how it has been tackled or maybe tackled.
The third change was to clarify the ability to pay life and other insurance for the surrogate. Previously the vagueness of the law appeared to make it a criminal offence.
Surrogates and donors (and their partners and children) are the great heroes of the process. They out to be protected and cherished, not exploited and exposed.
Another feature of the Family Relationships Act is that while an Australian legal practitioner can appear on the hearing of an application for an order, the only person who can advise about a surrogacy arrangement must be a legal practitioner admitted in South Australia.
The prime moment of the 2015 amendments was to set up a surrogacy register so that more surrogates would be available. However the only way to find out if someone is on the surrogacy register is to apply to the state government. It is not a publicly available document. It is, while well intentioned a somewhat cumbersome approach, although better than a complete ban on advertising for surrogates. The other major change in the 2015 Act was a stated requirement that those undertaking surrogacy overseas needed to obtain the consent of the state attorney general before proceeding with the overseas surrogacy arrangement. Part of the difficulty of this amendment was identified when a similar proposal was put forward in Israel. It was seen by critics of the Israeli proposal that a requirement to obtain the approval of the Attorney   General there of any surrogacy arrangement would of its nature discriminate against gay men (who are already discriminated against under Israeli laws) - that overseas clinics and agencies would not supply services of surrogacy to those in Israel.
·         Require more and more paperwork to be provided by the overseas clinics and agencies and therefore lead to an increase in cost, delay and pain for the intended parents and

·         Ultimately result in one course of action.
The same criticism could be made as to the requirements of approval by the state Attorney-General. Apparently it would appear to be an offence to undertake surrogacy overseas (whether altruistic or commercial) without the consent of the state Attorney. The state Attorney in taking into account whether or not approval should be given, is to rely upon two documents:-
·         The Family Relationship Regulations – which have not been updated following the July 2015 amendments; and

·         The State Framework for Altruistic Surrogacy. I understand from a colleague in South Australia that this document is being prepared, albeit very slowly, but is certainly not ready anytime soon.
Two features of the South Australian legislation stand out:
a.       The mover of the bill, the Hon. John Dawkins MLC was keen to ensure that there was some regulation in play pending what seemed to be very slow response from the Commonwealth, to avoid another Baby Gammy occurring; and

b.      As it was a private member’s bill, although drafted with the assistance of the parliamentary counsel, did not have the benefit of the expertise of the relevant government departments help which would have been of immeasurable assistance to Mr Dawkins as to the matter being thorough and having, for example, the regulations of the State Framework for Altruistic Surrogacy, being prepared and published and in place at the time of the passage of the bill.
A current failing with South Australian laws is an inability (despite the Family Law Act) to recognise interstate parentage orders.

13.       WESTERN AUSTRALIA
Western Australia regulates its IVF industry, like New South Wales Victoria and South Australia, and, like Victoria, has a state regulator, in this case the Reproductive Technology Council.
Regulation is contained both under the Reproductive Technology Act but also publications in the Government Gazette. Surrogacy is regulated under the Surrogacy Act 2008 (WA) and a notice in the Government Gazette.
Some features about surrogacy in Western Australia are:-
·         There is a requirement for independent counselling. The counsellor must be approved in Western Australia. Therefore an interstate counsellor cannot provide service for surrogacy. South Australia and Tasmania have similar restrictive rules.

·         While the embryo can be created interstate, the transfer must occur in Western Australia.

·         Before the surrogacy arrangement can proceed, the surrogacy arrangement must be approved by the Reproductive Technology Council.

·         Before the Reproductive Technology Council can approve the surrogacy arrangement, there is a minimum three month cooling off period.

·         The surrogacy arrangement must be written and signed by all, including any egg, sperm or embryo donor

·         There is no requirement for a post birth report

·         There must be a written surrogacy plan to identify the ongoing involvement (if any) with the surrogate and the partner with the child.

·         Surrogacy is available to married couples, heterosexual de facto couples, lesbian couples and single women, but not gay couples or single men.
There are no proposals to change the Surrogacy Act.

Example Western Australia v California
In the midst of the Baby Gammy furore in 2014 I was contacted by a parent in Western Australia who had undertaken surrogacy in Western Australia and California.
After repeated, crushing attempts at IVF, the couple decided to undertake surrogacy. At first they could not find a surrogate. They were not allowed to advertise (this is common across Australia). Eventually a friend said that she would be the surrogate. All four parties then underwent a rigorous process of counselling and legal advice. They then submitted the proposal to the Reproductive Technology Council. There was a six month cooling off period. Approval was given. Transfer attempts were made but were ultimately unsuccessful. After eighteen months of trying through the surrogacy arrangement, the surrogate said she wasn’t prepared to try anymore.
The couple then went to California. Very quickly the couple underwent surrogacy through a highly professional arrangement and process, with a great deal of respect for the surrogate. Everything worked well.
It was put to me that the system in Western Australia is fundamentally flawed as compared to the system in California. Why was it the case that with altruistic surrogacy the only person who is not being paid is the surrogate? The doctor, the lawyer, the counsellor, for that matter the judge, are all being paid. The person at the centre, the woman taking the risk of carrying the child and giving birth, even the risk of death, is the only one not being paid. What justification could there be that the most vital person is the whole process is the one not being paid?



14.       NORTHERN TERRITORY
As I set out above there are no laws in the Northern Territory concerning surrogacy. There is no regulation of the IVF industry there on a Territory basis. Instead the sole clinic, Repromed, is regulated both by:-
·         NHMRC, Ethical Guidelines
·         South Australian law.
The impact in the Northern Territory of not having any laws concerning surrogacy issues is huge. While in theory it means that intended parents and surrogate can enter into any type of surrogacy arrangement, including commercial surrogacy, the result is even more restrictive than if there were regulations. It is certainly possible to put an advertisement in the daily newspaper or online seeking a surrogate and engage in a traditional surrogacy arrangement at home, much in the same manner as Re Evelyn; with possibly the same result. There would be no requirement for those parties to engage in counselling, legal advice or have a written surrogacy arrangement.
However the position of the only IVF clinic is that because one of the aims of surrogacy namely the ability to become a parent, is not available under Northern Territory law, it will not provide surrogacy services. Therefore one of the chief components of surrogacy, IVF, is not available.
The clinic’s doctors in any case are not able to provide ART services to gay couples or single men, because of the ART Act 1998 (SA). Because of the requirements of the NHMRC Ethical Guidelines, they are not able to facilitate commercial surrogacy.
For intended parents in the Northern Territory, the outcome is obvious. They either uproot themselves and move interstate either now (such as if they were to go WA, SA Tasmania, ACT or Victoria) or later (Qld or NSW). The alternative is much simpler and possibly cheaper – they go overseas. The clients I’ve had from Darwin have simply chosen to do the latter because there is much less travel, cost and upheaval. If you’re intended parents living interstate and you have a surrogate in Darwin you better hope that she gives birth interstate because if she gives birth in Darwin, you will never be recognised on the birth certificate as the parents. You might be recognised under the Family Law Act as the parents, because of section 60HB of that Act, but according to the Registrar of Births, Deaths and Marriages in the Northern Territory, the birth register will not be altered to enable you to be recognised.



15.       GOING OVERSEAS
Australians go wherever surrogacy is available. The perception of intended parents as just being those too old to know better, who should have undertaken parenting earlier, is not accurate. Whilst there are certainly intended parents within that category, the people who wish to be parents via surrogacy is varied:-
·         Single women who are cancer survivors
·         Single men
·         Lesbian couples, neither of whom are fertile
·         Gay couples
·         Married or heterosexual couples where the woman is unable to carry a child.
Three examples of when women are unable to carry a child
Example One Julia
Julia and Bart are married. Julia was born without a uterus. She is never unable to carry a child.
Example Two: Laura
Laura and John are married. Laura has polycystic ovary syndrome. The nature of her condition means that she may be unable to carry a child safely
Example three: Sue
Sue and Charles are a married couple. Sue has previously suffered from severe depression. The advice of her psychiatrist is that taking various drugs for mental health means that she is stable, able to be a good mum, but must remain on those drugs. If she were to cease taking those drugs, she may be at risk to herself and to her unborn child. The advice of Sue’s gynaecologist is that surrogacy is the best option because she should not take the particular drugs that she takes if she is to be pregnant. Sue and Charles are therefore faced with a catch-22 situation:
She ceases to take the drugs to enable her to become pregnant – but in the process      places potentially her and the child’s life at risk; or
She remains on the drugs, but cannot become pregnant – in which case she needs to rely on a surrogate.  

I have seen an extraordinary variety of people who want to become parents through surrogacy.  The vast majority are particularly child focussed.  For heterosexual couples or single women, their stories are often extremely harrowing.  Too often with hetrosexual couples the women’s existence appears to be defined as to whether or not she can become a mother, the man’s existence being to support her. The pain at times seems extraordinary.

Doctors advise that infertility is the third biggest disease in the country, after cancer and heart disease. It apparently affects 1 in 6 couples. The increase in demand for surrogacy, as it becomes better known, appears inevitable.

For gay couples (or single men) undertaking surrogacy, surrogacy is not the second option or third or fourth or fifth available – the option of last resort as it is for heterosexual couples.  It is the only option.  It is therefore a process often undertaken with great joy.

For single men or a gay couple living in places where surrogacy is not readily available to them because of the law namely:
·         ACT
·         South Australia
·         Western Australia
·         Northern Territory
-          the choice is often very simple – they desire to undertake surrogacy overseas.

16.       WHERE DO AUSTRALIANS GO?

In the past Australians overwhelmingly went to India (with smaller numbers to Thailand and the United States).  When India largely shut its doors to Australians in 2012, there was an upsurge in the number of Australians going to Thailand and to a lesser extent to the United States.
Following Baby Gammy and Thailand’s decision to close the doors there to Australians and others, Australians sought other places in which to undertake surrogacy, principally Nepal and Mexico.
Last year between August and December surrogacy options for Australians were closed in Nepal, India and Mexico.
Australians continued to undertake surrogacy in the United States and, increasingly, Canada although in respect to the latter surrogacy is altruistic as it is in Australia.
It is likely given the huge spike in demand for surrogacy in Canada from Australians and others that sooner or later surrogates in Canada will not be available in any timely manner.
Australians have gone to other places for surrogacy including:
·         Cyprus
·         The Ukraine
·         Greece
·         Republic of Georgia
·         Malaysia

Recently I have received credible reports from a number of sources that Australians are undertaking surrogacy in Cambodia and Laos. These surrogacy arrangements have been organised by Thai doctors.  Indeed it appears that the door for surrogacy in Thailand is not fully closed. 
It is extremely concerning to me that surrogacy options are being taken up by Australians in developing countries.  It is likely that as one country closes its doors, the next country will open its doors.
In mid-February the working group appointed on behalf of The Hague Conference on Private International Law will be meeting at The Hague to discuss the format of a proposed convention to do with private international law concerning children, including international surrogacy arrangements.  Chief Judge Pascoe has the honour of being Australia’s delegate to that working group.
It is likely that any Hague Convention is a couple of years away.  It is also clear to me that the Hague Convention will not cover every country.  Other Hague Conventions are not signed by every country.  If one looks at the Hague Convention on International Child Abduction, for example, in Africa the only signatories are:
·         Burkina Faso
·         South Africa
·         Zambia
I am aware from reports of an overseas colleague that surrogacy (married couples at least) has previously been made available in Uganda and Mozambique.

Any regulation of Australians going overseas needs a lead in time (as advocated by Chief Justice Bryant) and to avoid couples getting caught halfway through, as we saw in:
·         NSW 2010 – 2011
·         India 2012 – 2013
·         Thailand 2014 – 2015
·         Nepal 2015
We also need to ensure that if there is not yet a Hague convention, or for countries (such as Uganda and Mozambique) that are unlikely to sign any convention, that there is appropriate regulations in place.

17.       THE POTENTIAL FOR THINGS GOING WRONG OVERSEAS
To have a child through an international surrogacy arrangement, whether commercial or not, is probably the most complex way to have a child.  Add a commercial element to it and it certainly makes it more complex.  Add to the recipe of complexity if the country in which surrogacy is occurring is a developing country, the surrogate is not an English speaker and is from an impoverished background.
A key feature of all the countries where there have been concerns about surrogacy arrangements have been that they are based on agreements and not been the subject of judicial oversight (in the most rare occasions) such as:
·         India
·         Thailand
·         Nepal
·         Mexico

By contrast with the rare exception of British Colombia and, ordinarily Illinois, all surrogacy arrangements in Canada and the United States in which Australians have taken part have been the subject of judicial oversight.  I cannot emphasise enough how important it is to have judicial oversight of the process.  Australian Judges, at least, are concerned to ensure that there is no exploitation of anybody – the intended parents, the surrogate or the child.
It may be by the time of the hearing that the possible form of a Hague Convention becomes known.  At the moment, there are a number of models, (one which I am the principal advocate and co-author) as to the form of a Hague Convention.


18.       CONCLUSION

Those who wish to be parents have legitimate and natural desires.

The proposals I have put forward address the practical outcomes dealing with the reality of those desires.

King Canute was no more successful in holding back the tide than we will be in attempting to ban surrogacy. Children will continue to be born. They deserve to be protected as do the intended parents, the surrogate, her partner and any donor (and for that matter, indirectly, the children of any surrogate or donor).

What is required is practical, national regulation for both those undertaking surrogacy here or overseas. For those going overseas the weight of regulation ought to depend on where they go.

The opinions in this submission are my own.

Availability

I am happy to assist the Committee and give evidence, if sought.

I have attached my current curriculum vitae.



Stephen Page
Harrington Family Lawyers
10 February 2016


[1][1] Everingham et al; Australians use of surrogacy (2014) Medical Journal of Australia 270 - 273
[3]





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