Monday, October 17, 2016

Single, gay, lesbian, bisexual, trans and intersex people want to have babies too

"I'm on the right track baby- I was born this way": Lady Gaga

It is one of those acts of fate that not all of us are born the way that we wish to be, or we need to be to be able to reproduce naturally.

Some women discover that their eggs don't work- and need an egg donor. Some men discover that their sperm doesn't work and a sperm donor is required.

Some women are born without a uterus, or are survivors of cancer, and need a surrogate.

Some of us discover that we are lesbians- and cannot have children without the aid of some man's sperm.

Some of us discover that we are gay or bisexual- and cannot have children without the aid of an egg donor and a surrogate.

But there are others of us who get forgotten. While some trans people can reproduce, others cannot. The hopes and desires of these people  to have children and to raise a family is just as real as that as anyone else.

Similarly, intersex people are often forgotten. They often cannot reproduce naturally, and just like seemingly everyone else may have that burning desire to become parents.

Some people are single, but still want to have children. They may need an egg donor, or a sperm donor or a surrogate or all three.

And for many people, unfortunately the law discriminates about whether they can or cannot be parents. In the powerful words of an old client of mine, "The Government cannot tell me when I can or can't have children. The Government can't play God." Well, yes it can and yes it does, or to be more accurate, Parliaments do so.

How do our reproductive laws discriminate?

By and large, we have State based fertility laws in this country, and they vary considerably.


There is discrimination in Queensland. The Anti-Discrimination Act specifically allows for discrimination on the basis of relationship status and sexuality in the provision of assisted reproductive treatment services. However, with the removal of exemptions to the Sex Discrimination Act on 1 August, the latter overrides the former. In practice, I have not heard of discrimination for a long time. The Surrogacy Act is non-discriminatory.

New South Wales

On its face, NSW law does not discriminate.


ACT law discriminates in surrogacy cases not on the basis of sexuality, but whether a person is single. Only couples need seek surrogacy, and the surrogate must also be part of a couple. No single surrogates can help in the ACT.


On its face, Victorian law does not discriminate.


Tasmanian law does not discriminate as to whether someone is single or a couple, or on the basis of sexuality. Given its small size, the surprising thing is that for surrogacy cases, EVERYONE must come from Tasmania at the beginning of the case. While that might be dispensed with by a Magistrate at the conclusion of the case, that is 18-24 months away at best.

South Australia

South Australia specifically discriminates against lesbians, single women at some level, and anyone who is seeking surrogacy who is not part of a heterosexual couple (and even those if they are in a de facto relationship for less than 3 years). However, South Australia is looking to legislate to remove this discrimination, possibly by the end of this year, which in any case is impacted by the changes to the Sex Discrimination Act.

Western Australia

Western Australia does not discriminate with assisted reproductive treatment services BUT it does discriminate with surrogacy. Funnily enough, heterosexual couples, lesbian couples and single women can access surrogacy, but gay couples and single men cannot. Where this leaves trans and intersex people- who knows.

Northern Territory

The NT has few laws affecting fertility, and therefore on the face of it no discrimination- BUT- the only clinic there will not provide surrogacy services (because there are no surrogacy laws in the NT and therefore there cannot be a transfer of parentage) and because the doctors come from Adelaide, their provision of assisted reproductive treatment, including IVF, is limited to South Australian laws.

And then there is the uncomfortable discussion...

I have acted for a number of trans intended parents. When the client is female to male, is he a woman for the purposes of these fertility laws? Is he a woman for the purposes of presumptions under the Family Law Act? I simply don't know, but suspect that the courts would accept him as male, similarly to marriage cases when marrying an opposite sex partner. However, some transmen have chosen to go off their hormones, and become pregnant. I was told recently by an expert about a transman doing this three times over.

And if the person identifies as female, whether trans or intersex, then there is the uncomfortable discussion about whether she is an "eligible female". If she is not an "eligible female" for the purposes of the legislation then surrogacy treatment at least may not happen.

If the person, like Norrie, identifies as neither male nor female, I do not know how they would fare with accessing treatment or surrogacy, especially in say Western Australia.

We shall see how these cases play out- where the law and medical practice might collide with the natural and burning desire of people to have children.

Monday, October 10, 2016

Why I believe that usually there is little point getting a parenting order for those undertaking surrogacy overseas

Recently a number of clients and an overseas colleague have raised with me about why there is a difference in viewpoints amongst Australian lawyers about whether or not it is advisable to obtain a parenting order in the Family Court after undertaking surrogacy overseas.

First the numbers

A legal answer does not rely upon statistics, but the statistics tell a story. In the last few years it is estimated that about 250 children a year have been born overseas via surrogacy and obtained citizenship here. The true figure will be higher- because some heterosexual couples pretend that they underwent pregnancy overseas, and those adults living here on visas don't seek Australian citizenship for their children.

But let's accept for the moment that there are 250 children born overseas via surrogacy who make their way back to Australia. About 3 of them each year will be the subject of parenting orders soon after returning. The other 247 won't be.

Their parents learn that while in theory it would be a good idea to have loose ends tied up and to obtain a parenting order, it is a very expensive process, and has a dubious outcome. Why bother?

Then the good news

The benefits an order can bring are that it says who has parental responsibility and says where the child resides. If one of the parents were to do a runner and abduct the child- and take the child to a Hague Convention country- then having the order would be very helpful.

And if the parents are lucky, they will be recognised by the court as parents.

The bad news

For parents who have paid say $120,000 undergoing surrogacy in Canada or say $200,000- $300,000 in the US, adding another $20-30,000 for a parenting order in Australia is a big ask.

What don't you get for the order?

You don't get citizenship. That will normally already be obtained. You don't get a Medicare card. You will have already done that. Armed with the citizenship certificate, the birth certificate and a Medicare, there should be no difficulty for most if not all parents in enrolling their child in day care, school, claiming Centrelink, including Family Tax Benefits, going to the doctor and to hospital in an emergency.

What do you get with the order?

Well just that you have parental responsibility and the child lives with you. If a declaration is made that you are a parent, then that will also mean that for inheritance purposes you will be recognised as a parent, and your child will inherit.

Quite simply, I am of the view that every adult should have a will. Those undertaking surrogacy have a special responsibility to their children to make sure that they have properly drawn wills- so that their children will be able to inherit- and uncertainty as to whether a child may or may not inherit, and subject to the rules of intestacy- will be completely avoided. Properly drawn wills provide certainty.

Won't the court declare that you are the parents?

In theory this might happen, but recent case law says otherwise. Take the couple known as the Dudley's, or the Dennis'es. Back in 2011 they went before one judge of the Family Court- who declared that they were the parents. They went before another judge (because they had had three children via surrogacy in Thailand) who said that he doubted that they were the parents- and here is the kicker- referred them to Queensland's Director of Prosecutions for possible prosecution for breach of the law in Queensland preventing people from undertaking commercial surrogacy overseas.

Queensland, New South Wales and the Australian Capital Territory have laws that stretch overseas. They make it an offence to go overseas for commercial surrogacy- as defined in those places. What you might think is altruistic surrogacy overseas might, because of the laws in those places, be commercial surrogacy back home.

South Australia and Western Australia also have laws that can make it an offence to go overseas for surrogacy.

The only places where it is clear that you can go overseas for commercial surrogacy without potential legal drama are Victoria, Tasmania and the Northern Territory.

Be that as it may, in 2012 one judge of the Family Court found that a Queensland man who went to Thailand for surrogacy was a parent. The following year she took the view in another case that she was probably wrong in the first case- and that a couple living in Sydney who had undertaken surrogacy in India were unlikely to be the parents. They later returned to the UK,  completely frustrated with the process here, overcame legal barriers and established in the UK that they were the parents.


  • a man who was the genetic father living in Victoria and went to India was found to be a parent.
  • a man from Western Australia who underwent surrogacy in India was found to be a parent.
  • a man from Victoria who went to India for surrogacy was held to be the genetic father- but said the court- it did not have the power to find that he was the parent. In the same case, the court found that the man's wife was NOT a parent because an egg donor was used- and in any case the court said that it did not have the power to declare her a parent. The couple have appealed.
  • a couple from Western Australia were found NOT to be the parents- and the judge criticised the earlier Western Australian case.
The simple point is that until there is clarification on an appeal, it is a simple lottery about whether you are going to be declared a parent or not- and for which you may the privilege of $20,000!


The South African case

In 2013, an Australian judge found that a man living in South African and who obtained an order there that he was the father of children was a parent here.

What was clear, unlike some of the other cases, was that the man was acting lawfully. The case may open the possibility that those who undertake altruistic surrogacy in Canada (provided it meets the description back here) or those undertaking surrogacy in the US from Victoria, Tasmania and the Northern Territory (and possibly South Australia) will be recognised as parents here- because they have lawfully in Australian eyes undertaken surrogacy there- and been recognised by the courts or authorities there as the parents (and should be recognised as the parents here).

So in a snapshot

I don't like clients wasting money. I don't like clients having uncertainty. Unless and until the process is a more certain and positive one- depending on the circumstances of my individual clients- I won't usually be recommending getting a parenting order from the Family Court. What at first seems like a real option is, on closer examination, not such a great idea for most people. The devil, as they say, is in the detail.