Monday, May 23, 2016

Harrington Family Lawyers are awarded the Equity and Diversity Award by Queensland Law Society

On Thursday night I had the privilege to receive on behalf of my firm, Harrington Family Lawyers, an equity and diversity award from the Queensland Law Society.

Three awards were handed out by the Society- Large firm- to Clayton Utz (which recognised that it had LGBTIQ staff members and decided they should be made to feel welcome), Small firm- Miller Harris in Cairns (as 40% of their staff are on flexible work arrangements) and Harrington Family Lawyers- for the small legal practice initiative.

I had previously been told by President Bill Potts:

"The Society found your firm's leadership of the profession in promoting the rights of women and of LGBTI people particularly impressive. In particular, your penning of the Australian Gay and Lesbian Law Blog represents strong and pioneering commitment to the rights of and interests of LGBTI people in Australia ( and doubtless, internationally)."

At the awards ceremony, Bill Potts said that I was "hardworking" and an "ornament".

I said that I had to change my speech in light of events earlier that day. I had been told by a trans woman that allegations were being made of her (i.e. place a child at risk simply because of who she was) that took me back to 1992, when I acted for lesbian mothers, who were often discriminated against, due to their sexuality. It seemed that at some level we had not moved on after all these years.

I also said that when I took my oath of office as a solicitor all those years ago, I was determined to ensure that the law served others- so that the potential of the law- i.e. that all were equal under the law, was able to be met.

Bill Potts said that he hoped for the day that equity and diversity awards were not necessary, because society and the practice of law is fair.

The award comes at a time that I have been nominated for the LGBTIQ Activist of the Year in Queensland. Who is chosen as Activist is based on voting. I am the current Activist of the year.

It was great to help! UK man overturns ban on single parents via surrogacy

England's top family law judge has overturned a law that said only  couples could undertake surrogacy. Sir James Munby, the President of the England and Wales High Court Family Division, has made a formal declaration that UK law discriminates against single parents with children born through surrogacy and is incompatible with their human rights.

The team at Natalie Gamble and Associates, who acted for the father,   (working with leading counsel Elizabeth Isaacs QC and Adem Muzaffer) has been fighting this important case and were delighted at the ruling.

 I helped in the case.

Some months ago, my friend and colleague Natalie Gamble, one of the leading UK surrogacy lawyers, sought my help in the form of expert evidence as to what Australian surrogacy law provided. I willingly did so.

Natalie Gamble also received help from other expert surrogacy lawyers- Richard Vaughn in the US and Sara Cohen in Canada, who gave evidence about surrogacy laws there.

It is delightful that my evidence and that of my colleagues helped obtain this outcome. The reality is that single intended parents are often discriminated against, for no apparent reason. In Australia, that discrimination is seen in the ACT, South Australia and, for men, in Western Australia.

The case concerns a British biological father of a 21 month old boy known as ‘Z’, who was born through a US surrogacy arrangement and lives with his single father in the UK. Last September the High Court ruled that it could not grant the father a UK parental order (the order needed to extinguish the responsibilities of the surrogate and to issue a UK birth certificate for Z), because UK surrogacy law only allows couples, and not single parents, to apply. The court ruled that the US surrogate who carried Z (who lives in the USA, is not his biological mother and has no legal status there) has sole decision-making rights in the UK. Z was made a ward of court, which means the court safeguards his welfare and makes decisions about his care.

The President of the Family Division has now declared that the law is incompatible with the father’s and the child’s human rights, and discriminates against them. In an unprecedented move, the Secretary of State for Health decided not to oppose the father’s application, conceding that UK law breached human rights legislation and consenting to the court making a declaration of incompatibility. Although only Parliament can change the law, declarations of incompatibility under the Human Rights Act are unusual and carry significant weight: only 20 final declarations have ever been made, and all but one have prompted the law being changed.  However, the government has not yet said whether it plans to push forward reform.
Responding to the judgment, Z’s father said: “I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.”

Elizabeth Isaacs QC, his barrister, said: “Declarations of incompatibility are rarely made, so this is a very significant decision. Having consented to the declaration, there is no reason why the government should not take swift action to change the law. We hope that the law will be changed to enable a parental order to be granted for Z as soon as possible.”

MP's: no to commercial surrogacy; make it harder to go overseas

The Federal Parliamentary inquiry has concluded that commercial surrogacy in Australia continue to be banned, that there be national, non-discriminatory surrogacy laws, and that it be harder for Australians to undertake surrogacy in developing countries.

The inquiry, by the House of Representatives Select Committee on Social Policy and Legal Affairs, chaired by Nationals MP George Christensen, raised concerns about the potential for exploitation of both surrogates and children, and questioned whether birth certificates should issue that included the name of the surrogate and any donors of genetic material, as well as that of the parents.

The Committee has recognised that Australians will continue to access surrogacy overseas. It is likely that, with continued restrictions on surrogacy in Australia, that there will remain a shortage of available surrogates in Australia, meaning that if anything there will continue to be a growth in the number of Australians accessing commercial surrogacy overseas. However, the recommendations of the inquiry are to make it harder for Australians to access surrogacy overseas, by Australian intended parents having to prove to Australian officials that they have not broken the law in Australia or overseas before they can bring their children into Australia. Whether this will lead to children being trapped overseas remains to be seen.

The full list of recommendations is:

Recommendation 1
The Committee recommends that the practice of commercial surrogacy remain illegal in Australia.
Recommendation 2
The Committee recommends that the Australian Government, in conjunction with the Council of Australian Governments, consider the development of a model national law that facilitates altruistic surrogacy in Australia. The model law should have regard to the following four guiding principles:
·      that the best interests of the child should be protected (including the child’s safety and well-being and the child’s right to know about their origins), 

·      that the surrogate mother is able to make a free and informed decision about whether to act as a surrogate, 

·      that sufficient regulatory protections are in place to protect the surrogate mother from exploitation, and 

·      that there is legal clarity about the parent-child relationships that result from the arrangement.

Recommendation 3 
The Committee recommends that the Attorney-General request the Australian Law Reform Commission (ALRC) to conduct a 12-month inquiry into the surrogacy laws of Australian States and Territories, with a view to developing a model national law on altruistic surrogacy. The Attorney-General should request that the ALRC consider: 

·      first and foremost, the best interests of the child, 

·      previous reviews of Australian surrogacy laws, including the 2009 report of the Standing Committee on Attorneys-General and the 2013 Family Law Council report on Parentage and the Family Law Act 1975,
·      the need for State and Territory laws to be non-discriminatory, 

·      the need for mandatory, independent and in-person counselling for all parties before entering into a surrogacy arrangement, during pregnancy, after the birth, and at relinquishment, 

·      the need for background checks, medical and psychological screening, and independent legal advice for all parties entering into a surrogacy arrangement, 

·      the need for parties to enter into a non-binding surrogacy agreement which sets out shared expectations of all parties, including dispute resolution processes, and which ensures that parties respect the birth mother's right to make decisions about her own health and that of the child, 

·      the processes by which parental responsibility is transferred from the birth mother to intended parents, and when this transfer should take place, 

·      the need for adequate reimbursement for the birth mother for legal, medical and other expenses incurred as a consequence of the surrogacy, 

·      the need for a closed register of surrogates and intended parents, to be administered by a Government body, access to which may be granted following background checks, and medical and psychological screening, and 

·      whether States and Territories should keep standardised statistical information on families formed through surrogacy to enable long- term studies of surrogacy's effect on families. 

Recommendation 4 
The Committee recommends that the Attorney-General request that the Australian Law Reform Commission consider the issue of birth certificates as part of its inquiry as set out in Recommendation 3. In particular, the ALRC should consider whether a child's birth certificate should contain information on all gestational, genetic and intended parents, including a record that the child was born as a result of a surrogacy arrangement 

Recommendation 5  The Committee recommends that, within six months of the proposed report of the Australian Law Reform Commission being presented to the Attorney-General, the Attorney-General should request that the Council of Australian Governments (COAG) commit to the following actions:
·      consultation with all Australian States and Territories in relation to the proposed model, and 

·      the development of national uniform legislation on altruistic surrogacy to be implemented in all Australian States and Territories. 
The Committee considers that the deliberations by COAG should not exceed 12 months.

Recommendation 6 
The Committee recommends that the Australian Government develop a website that provides advice and information for Australians considering domestic altruistic surrogacy. The website should include: 

·      clear advice on the role of Australian Government support and service provision for intended parents, surrogates and children including Medicare, social security & welfare payments, child support, paid parental leave, 

·      clear advice on surrogacy legislation in each Australian State and  Territory, and 

·        clear advice on the support and services funded and provided for by each Australian State and Territory including relevant health, counselling and legal services available.
Recommendation 7 
The Committee recommends that the Australian Government establish an interdepartmental taskforce (which should include eminent jurists with relevant expertise) to report in 12 months on ways to address the situation of Australians who choose enter into offshore surrogacy arrangements, with respect to:
·      protecting the rights of the child, particularly their rights to be free from exploitation, to know their genetic heritage, to know the circumstances of their birth, and to have an ongoing relationship with their birth mother and any siblings or genetic donor/s, 

·      ensuring birth mothers give their free and informed consent and reducing the likelihood that they face exploitation,
·      ensuring that Australians who enter into offshore surrogacy arrangements meet their responsibility to act in the best interest of all of their children, and 

·      considering whether it should be unlawful to engage in offshore surrogacy in any overseas jurisdiction where commercial surrogacy is prohibited. 
While not condoning Australians' use of offshore surrogacy, the aim of the taskforce should be to ensure that where the regulatory, economic or social conditions in a particular jurisdiction give rise to an increased risk of exploitation or rights violations, Australians entering into or facilitating surrogacy arrangements in that jurisdiction are made aware of those risks, and are subject to a more stringent investigative process to ensure that the rights of the birth mother and the child have not been infringed. 

Recommendation 8 
The Committee recommends that the interdepartmental taskforce should undertake a systematic audit of surrogacy destination countries to assess the extent to which surrogacy practices in these countries meet the requirements laid out in recommendation 3. The Committee considers that this audit will assist in informing the Australian Government’s response to the Australians who choose to enter into offshore surrogacy arrangements. 

Recommendation 9 
The Committee recommends that the Australian Government introduce legislation to amend the Migration Act 1958 such that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child. 

Recommendation 10 
The Committee recommends that the Australian Government, in its representations to the Experts' Group on Parentage/Surrogacy at the Permanent Bureau of the Hague Conference on Private International Law should prioritise:
·      the rights of the child, particularly their right to know their genetic heritage, to know the circumstances of their birth, and to have ongoing relationships with their birth mother and any siblings or genetic donor/s,
·      the rights of surrogate mothers to be free from exploitation, and to only engage in surrogacy arrangements to which they give their free and free informed consent, and 

·      the development of an international convention dealing with the regulation of parentage and surrogacy. 

Wednesday, May 11, 2016

Will the real parents please stand up?

Almost every day, I have to advise clients about whether they are or they are not parents under the Family Law Act. Sometimes this is because they have undertaken surrogacy, or because they have had IVF. It was always so simple before the rise and rise of IVF, and the rise of surrogacy!

Many clients think that they are the parents of a child under the Family Law Act, when they are not. Some think that they are not parents under the Family Law Act when they are. According to different judges some people may be parents under the Family Law Act, but the same category of people according to other judges are not parents under the Family Law Act.

Confused? You're not alone.

Now it is thoroughly confusing about who is and who isn't a parent when they have had IVF and surrogacy. Some things still remain simple: if there has been IVF and they're a couple (but there's no surrogacy), then genetics or not they're the parents. If a surrogacy order has been made under State or ACT legislation, then they're also the parents for all purposes under Australian law.

However, that's where the easy bits stop. Many clients are naturally concerned about whether or not they are considered to be parents because of legal issues, such as:

  • possible effects on citizenship or passports
  • whether or not the child inherits
  • parenting presumptions under the Family Law Act when couples split up (including issues to do with the abduction of children under the Hague Child Abduction Convention)
Please excuse the technical talk, but here is a potted guide to some recent views by Family Court judges about who is and who is not a parent:

  • 2011- those who go overseas for surrogacy are probably not parents,  because the State and Territory laws say that the woman who gave birth is the parent, and her partner (male or female) is the other parent, and these laws, although designed for donor cases, might apply to surrogacy. Also they may not be parents when they come from places which make it illegal to go overseas for commercial surrogacy,(such as Qld, NSW and the ACT) because the law should not be encouraging illegal acts. With one of the couples where the judge questioned whether the parties were parents, the man was found to be a parent by another judge some months before( they had had two cases running to court concerning children born from surrogacy).
  • 2012- a man who is a sperm donor in an overseas surrogacy arrangement is a parent under the Family Law Act, and therefore, the State law is overridden (which provided he was not a parent).
  • 2013- the "reality" of parenting and the inclusive definition of Western Australia's Adoption Act about who is a parent means that both of a gay couple who went to India for surrogacy are parents.
  • 2013- a man living in South Africa and recognised for surrogacy as a parent there is a parent here.
  • 2013- on a tentative basis, the Family Law Act and State and Territory laws form a scheme, so that who is and is not a parent is determined (generally) by State and Territory laws, which means the birth mother and her partner are the parents, and  the intended parents, aren't, and that the same judge's conclusions to the contrary in 2012 were probably wrong.
  • 2013- a known sperm donor to a single woman is a parent under the Family Law Act because he isn't excluded (as might have been the case if the woman were in a de facto relationship or marriage) as a parent, and he is biologically and intended to be the parent. The categories of who is a parent are open and can be decided in each case. The Family Law Act therefore overrides State law which provided that only the woman was a parent.
  • 2014- an intended father under an Indian surrogacy arrangement is the parent under the Family Law Act, and the 2013 tentative decision while applying in New South Wales (and by implication Queensland and the ACT) does not apply in Victoria (and by implication Tasmania  and the NT, and possibly SA and WA) because in Victoria it is legal to go overseas for commercial surrogacy, but it is illegal in NSW.
  • 2015-  a married couple asked the Family Court to be declared to be the parents of a child. They had gone to India for surrogacy. The judge refused to make the parentage declaration because, he said, he did not have the power to, but in any case the man (who was the genetic father) was the father but the woman (when they had an egg donor) was not. His Honour said that the State Act did not apply, because it was hardly relevant to the matter- when the child was born overseas.
  • 2016- in the Baby Gammy case, the judge said that the intended parents were not parents because the parenting presumption for a couple  under the Family Law Act did not apply to surrogacy, but the State Act meant that the surrogate was a parent (and therefore so was her husband). His Honour was of the opinion that the 2013 Western Australian case was wrongly decided, and that intention was never the test of who was or wasn't a parent under the Family Law Act. Curiously, the test under the Family Law Act about a couple undergoing IVF was essentially the same as that under the State Act. His Honour took the view that the law that applied as to who the parents of the child were was the law of Australia, not the law of Thailand, where the child was born.
The sooner we either have the Full Court of the Family Court of Australia determine, definitively, who is or is not a parent and whether the Family Law Act or State and Territory legislation prevails, or the sooner we have the Commonwealth Parliament make laws to determine this issue (as was recommended by the Family Law Council), the better.

Our children have, according to the International Convention on the Rights of the Child a right to an identity. Children are being conceived and born and placed in families where all understand that the people caring for the children are the parents- but our laws (or at least the interpretation of those laws) has meant that those families are unclear as to whether the law recognises them as families. More importantly, children are being denied their identities.  The sooner the law is cleared up, the better.

The cases are also illustrations as to why the sooner the Hague Conference on Private International Law (of which Australia is a member country) is keen to have a convention not just on international surrogacy, but on all private international rules concerning children. The working group when it met at The Hague earlier this year was of the view that the most important issue was to make sure that the status of children moving between countries is certain, i.e., who are their parents, what is their fundamental identity as human beings. The sooner the Hague has a convention covering these issues, and helps parents (and more importantly their children) have certainty, the better.

Thursday, May 5, 2016

Rainbow Fertility starts!

Australia's first LGBTI dedicated IVF and fertility clinic has started- Rainbow Fertility. For too long IVF clinics seem at times to have tried to define who are and who are not families. Finally, there is a service especially devoted to LGBTI people who want to have babies. Rainbow Fertility is a service offered by City Fertility Centre. City Fertility operates in Queensland, NSW, Victoria and South Australia.

In the words of Rainbow Fertility:

"Everyone should be free to experience the joys of parenthood.

"We understand that rainbow families can encounter confusion and misunderstanding from others, sometimes even from medical professionals. It takes time to build a family and you’ll need all the support you can get. That’s why it’s so vital to us that you can trust us from day one and are confident we’ll do all we can to help you reach your goals.

"With extensive medical and emotional support, our fertility care is free from judgement. Whether they’re specialists or clinic staff, our dedicated team understands the needs of potential parents and commits to compassionate and inclusive care that treats you as an individual. Members of our staff have substantial experience in helping create LGBTI families and have also taken the time to attend LGBTI seminars and events to get a deeper understanding of the unique challenges you sometimes face."

What is especially gratifying to me is that Rainbow Fertility, in addition to focussing on gay and lesbian parents to be have also said that they want to help those who are the most discriminated against,  trans and intersex people, to  have babies. Wonderful!

Disclaimer: I am a member of the national surrogacy and donor committee of City Fertility Centre.

Sunday, May 1, 2016

Drinks event in Brisbane 3 June

The night before the annual Families Through Surrogacy conference, which will be held this year in Brisbane over the June long weekend, there will be a drinks event. Those who are considering Canada as a possible option for surrogacy are especially welcome, as well as any Australian fertility counsellors and doctors.

The night offers the opportunity to discuss, over drinks and canapes, with people from Canada and Australia about how surrogacy works in Canada for Australians, and how intended parents are able to have their babies come back to Australia, in a low key low pressure environment

Those attending include:

  • Canadian Fertility Consultants
  • EggHelpers
  • my best man and renowned fertility doctor,  Dr Said Daneshmand from the Fertility Center of Las Vegas
  • me!

Where and when

Mercure Hotel, North Quay
6pm to 8pm
Friday 3 June
Cost: Free

RSVP: Angie at