Tuesday, January 31, 2017

Gay Aussie couples should reconsider going to Texas for surrogacy

Australians have ventured far and wide across the US to undertake surrogacy, not remaining content in California- going from Oregon in the west to Minnesota int he mid west,  Massachusetts in the north-east, and Tennessee and Florida in the south- and apparently most places in between.

One of the places that Aussies have been more interested in in recent times has been Texas. It's cheaper for surrogacy and seems to be well run. It has until now provided relative certainty. Texan attorneys have told me that if you are gay and married, then following the US Supreme Court case that legalised gay marriage across the US in 2015, Texas welcomed you with open arms.

I am now of the view that gay Aussies should pause before they consider going to Texas. This is aside from the obvious issue that in several parts of Australia it is a criminal offence to undertake commercial surrogacy overseas.

Why I've formed this view is because of a challenge currently under way in the  Supreme Court of Texas. That court a week ago has allowed a case to progress where there is a challenge to the rights of gay and lesbian married Texans. The challenge isn't to their being married, but whether they should have the same rights as heterosexual married couples. Essentially it is argued that gay and lesbian married couples shouldn't have the same rights as heterosexual married couples.

The US National LGBT Bar Association has raised concerns about the possible impact of the Texan case.

The fact that the case is being openly considered speaks volumes as to the current climate in Texas and means that gay married couples, who might rely upon Texas surrogacy law to become parents there, have to reconsider whether that is a good choice. if the Texas Supreme Court upholds the challenge, then it is expected that there will be a series of court cases about the issue- while the law in Texas on the point remains uncertain. In the meantime, gay married couples, in my view should reconsider going to Texas for surrogacy. To do otherwise might be to invite a lot of trouble.

Those from the 7 countries should pause on surrogacy in the US

People living in Australia who have citizenship of one of the list of 7 countries banned by President Trump should reconsider undertaking surrogacy in the US. While Malcolm Turnbull has said that the US will exempt dual citizen Australians from the ban, news from this morning was that a dual national Iranian/Australian student had been denied a visa to enter the US as part of a school trip. Presumably all her school mates will be able to go, but she won't.

The seven countries are:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

Given  that surrogacy is a journey that typically takes 12-18 months on a good journey, but might take up to 4 years if things don't go quite as smoothly, not being able to travel to the country where you are undertaking surrogacy is a disaster in the making if you are an intended parent.

Those who come from those countries should think very carefully before considering surrogacy in the US. There could be few things worse than having your child born there and not being able to be with them.

Let's hope some clear, transparent and certain rules are put back in place for those seeking to undergo surrogacy in the US.

Sunday, January 29, 2017

European Court of Human Rights: parents have to be biological parents

In a decision handed down on 24 January, the European Court of Human Rights has rejected arguments by Italian intended parents that they were the parents of a child born through a surrogacy arrangement in Russia- because neither of them were genetically the parents.

In the case, called Paradiso and Campanelli v Italy, the intended parents had, in breach of Italian law, gone to Russia and undertaken surrogacy there. There was argument in the case about whether the Russian birth certificate was valid (as it appears Russian law is unclear when there is no genetic relationship between the intended parents and the child), which said that the intended parents were the parents of the child. The child was conceived from both donor egg and donor sperm. The donors were anonymous- meaning that the child's genetic origins were unknown.

Within a few months of the intended parents returning to Italy with the child, Italian authorities acted to place the child into adoption. The intended parents fought this unsuccessfully, all the way to the highest court in Europe, the Grand Chamber of the European Court of Human Rights.

The court determined by 11 judges to 6 that the actions of Italy did not breach Article 8 of the European Convention on Human Rights. Article 8 provides that everyone has the right to respect for his private and family life. The prime question determined on the appeal was whether there was a family.

The court concluded that there was not a family as a matter of law because neither of the intended parents was related to the child. If one of them had been related, then it would have been a different outcome.

It was noted that due to an absence of a genetic relationship, their relationship was not recognised as parent and child under Italian law.

The intended parents argued that they were parents under Russian law, and that therefore the parent/child or family relationship should be recognised. The court noted that the intended parents had acted illegally under Italian law in bringing a foreign child who had no biological ties with either of them, in breach of the rules laid down as to international adoption, and that they had entered into an agreement for the husband's sperm to be used to fertilise eggs from another woman, in breach of Italian law.

The court then considered whether there had been a de facto family in existence, but because of the short period between when the child came into their care and when the child was removed by Italian authorities, there was not enough time to establish that de facto care.

The court found that the conduct of Italian authorities impugned their private life, as they had a genuine intention to become parents, initially via IVF, then by applying for and obtaining formal approval to adopt, and lastly by turning to egg donation and the assistance of a surrogate.

The court found that the Italian authorities actions were justified in the absence of any genetic ties and the breach of Italian law concerning international adoption and on medically assisted reproduction. The measures taken by authorities were intended to ensure the immediate and permanent rupture of any contact between the intended parents and the child, and the child's placement in a home and also under guardianship.

The court stated:

"By prohibiting surrogacy arrangements, Italy has taken the view that it is pursuing the public interest of protecting the women and children potentially affected by practices which it regards as highly problematic from an ethical point of view. This policy is considered very important...where, as here, commercial surrogacy arrangements are involved.  That underlying public interest is also of relevance in respect of measures taken by a State to discourage its nationals from having recourse abroad to such practices which are forbidden on its own territory."

Parallels with the International Convention

Australia, like Italy is a party to the International Convention on the Rights of the Child. Its Article 16 is very similar to Article 8 of the European Convention, " No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence..."

We shall wait and see what impact, if any, this case might have as to any views regarding the International Convention and undertaking surrogacy overseas in breach of Australian law.

California Court of Appeal dismisses surrogate's appeal in triplet case

The California Court of Appeal has dismissed an appeal by a surrogate who sought that she have custody of triplets. Her appeal sought to challenge the constitutional validity of laws governing surrogacy in California.

The Court of Appeal noted:

  1. the surrogate was legally represented before she signed the agreement.
  2. she was aware when signing of court cases that had the effect that when born the children would be children of the intended father.
  3. her then lawyer was of the view that the surrogate signed the agreement with a clear and informed understanding of the agreement.
  4. in the agreement, the surrogate agreed to freely and readily establish the parental relationship between the intended father and any child born out of the agreement.
When the father sought parentage of the triplets, the surrogate counterclaimed, seeking that the children were hers, that one child live with her (the one she said that the father sought to have aborted), that there be a trial about where the other children were to live and claiming that the father was 50, a postal worker who was deaf, caring for his elderly parents and incapable of caring for the children, and that he submit to DNA testing to determine if he were the genetic father of the children.

The court held that because the father complied with the requirements under California law to establish parenthood, the appeal was dismissed. The court found that under Californian law that the surrogacy agreement was enforceable, and should be enforced.

Using your late husband's sperm to become a mum

One of the trickier assignments I have received in my role as a fertility lawyer is when I get approached to act to help a woman become pregnant using her late husband's sperm. Luckily, I have not yet had to race off to court to get the preservation order- to remove the sperm from his body. Those cases are tricky, in part because the sperm has to be removed within 24 hours - and even when there is an order for removal and preservation (sometimes judges refuse to make those orders) there is no guarantee that the sperm will be available for use.

What I have now seen a number of times is when it is known that the husband is going to die, because he has cancer, and it is the wish of both parties that his sperm is going to be used to enable  his widow to become a mum.

Simply tricky stuff.

The how to guide goes like this:

1. Plan early

Leave it too late, and it may be impossible to do. If your husband has cancer, his sperm may not be viable to be used. The sooner his sperm is able to be stored, usually the better, but of course check with an expert fertility doctor. I have had a case where the husband's sperm was taken when he was under 18. This has its own challenges.

2. If in WA, get the sperm out of WA

Western Australia expressly prohibits - by regulation - the use of sperm in this type of case. It is possible to have a clinic interstate (but check in advance) undertake the treatment and to ship the sperm interstate.Reproductive Technology Council approval is not required. You may have to get a lawyer's letter to tell the WA clinic that it is lawful to ship without RTC approval.  If the husband consents to the transport and storage, all the better.

3. Have clearly expressed directions

Without having written directions, properly witnessed, by the husband consenting to the use, then the sperm may not be able be used in Australia. While it may be possible to export the sperm overseas, the cost goes up considerably.

It is important at this stage, no matter how urgent it may seem, to get good legal advice from a lawyer who knows what they are doing. The clearly expressed, written and witnessed direction should in my view not only be in the will but also in separate directions. If there is some issue about the validity of the will, or some issue about whether the topic can be covered in the will, at least the written directions, written in compliance with legal requirements should be sufficient.

4. After the death, have counselling

A requirement of regulatory approval is that the wife will need to have counselling, preferably from an experienced fertility counsellor, so that complex issues can be discussed appropriately. The counsellor will need to write a comprehensive report for the wife, and any regulatory authorities to use.

5. Get a lawyer's letter

In order to facilitate regulatory approval, it is helpful to have a letter from a lawyer pointing out for the benefit of the regulatory authority that all steps have been complied with and that  it is OK to provide treatment. Obviously a lawyer who has done this type of work before is the ideal. You don't want to have to pay to educate your lawyer!

6. Get regulatory approval

Before treatment can begin, there needs to be regulatory approval. This is either an ethics committee, or in Victoria both the ethics committee of the clinic plus Patient Review Panel approval. Clinics are risk averse and will want everything set out out for them clearly that there has been full compliance by you with regulatory and ethical issues.

7. Take a deep breath

Typically, approval will occur after the wife has had enough time to grieve and then wishes to proceed with a clear mind. This may be some months. Treatment should not happen before then.

8. Get started!

Good luck! If it doesn't work, surrogacy may be an option- but it is best to make sure that the paperwork at the beginning is properly prepared so that that option is still available.


Why is discrimination in WA over reproductive rights OK, when it's not OK anywhere else?

Why is it the case that Western Australia is allowed to discriminate against gay men and singles when they want to be parents, but nowhere else is? All the while we hear from politicians about how they deplore Australians going to developing countries for surrogacy and exploiting poor women there- but the laws as drafted force gay and single Western Australian men who want to be singles to either move interstate or go offshore.

How does WA law discriminate?

Quite simply, WA has a bizarre system:

  • if you want to be a foster care, you can be single or gay (sounds good so far)
  • if you want to adopt, you can be single or gay (again sounds OK)
  • if you want to have a child through surrogacy, you can be a heterosexual couple, or a lesbian couple, or a single woman, but cannot be a single man or a gay male couple. The Surrogacy Act makes this discrimination plain.

The Commonwealth got called out

In October 2015, the Commonwealth Government got called out when it fronted up at the UN Human Rights Committee in Geneva from over 100 other countries. Some of the issues, not surprisingly, were about Nauru and Manus Island. But they also got a shellacking over Australian laws concerning LGBTI people. The result- the Commonwealth promised to end the exemptions under the Sex Discrimination Act that allowed the States to discriminate against LGBTI people. The Commonwealth told the UN that these exemptions would go by the end of July 2016.

But Western Australia is alone still allowed to discriminate...

And indeed they did. On 1 August 2016 we woke up to find that the exemptions had ended- except in Western Australia:

  • Discrimination in Queensland law to prevent LGBTI Queenslanders accessing assisted reproductive treatment from fertility doctors: OVERRIDDEN. 

  • Discrimination in South Australian law to prevent single and LGBTI South Australians accessing assisted reproductive treatment from fertility doctors: OVERRIDDEN. 

  • Discrimination in Western Australian law to prevent single men and gay male couples from accessing surrogacy: IN PLACE UNTIL 1 AUGUST 2017. Nowhere else- just WA, as the regulations make plain.

Why is it OK to discriminate against gay and single men in WA, but it's not OK anywhere else? What discussions have happened between the WA and Commonwealth governments to allow this? Why shouldn't this regulation be scrapped immediately to bring WA into line with the rest of the country?

South Australia plays catch up on reproductive rights and surrogacy

South Australia has a Bill before its Parliament to remove discrimination in its laws against LGBTI couples and single people, which will for the first time enable singles and LGBTI people access to surrogacy in that State- if passed. It will for the first time remove discrimination in the provision of assisted reproductive treatment in that State.

I want to make it plain that the changes have not yet passed. The current discrimination under South Australian law remains as to reproductive rights for LGBTI couples and singles.

History of how we got here

South Australia made plain that when it came to reproductive rights and surrogacy, those who were not in heterosexual relationships were unable to obtain assistance, or if they could do so, they could only do so with difficulty.

South Australia did this in two ways:

  • on penalty of losing their licence and copping a huge fine, fertility doctors had to only provide fertility treatment to women who were medically infertile. The standard definition of that has been unprotected sexual intercourse for a year that does not result in a pregnancy. South Australia attempted to exclude unmarried women, but following a Mrs Pearce (she was divorced) taking the State Government and one of the IVF clinics to court, that attempt failed. The Full Court of South Australia ruled that the Federal Sex Discrimination Act overruled the South Australian law, so Mrs Pearce could have treatment. The Federal Government then allowed discrimination to remain under exemptions to the Sex Discrimination Act until 1 August 2016, when the jig was up. Until that happened, fertility doctors in SA could not assist lesbian couples (when there wasn't that traditional medical infertility) or any single men or gay couples. Because SA doctors were the ones providing IVF in the NT, the discriminatory rules were exported there too.
  • The only people who could access surrogacy in SA were (and I should say still are) either heterosexual couples who were either married or living in a domestic partnership- the latter being for a minimum of 3 years. Singles and LGBTI couples (if the latter were not deemed to be heterosexual) cannot access surrogacy in SA.
In 2014 moves were under way to reform SA's surrogacy laws. My view was that the most urgent change was to remove discrimination in those laws. That change did not happen. One Labor Minister, Ian Hunter, who is openly gay, voted against those laws on that basis.

And then the UN stepped in...

In late 2015, the Australian Government told the Human Rights Committee of the UN in Geneva that it would remove the exemptions for discrimination against LGBTI people under State laws by 1 August 2016- and (with the exception of WA) did so. In early August 2016, the SA health authorities wrote to the IVF clinics in that State advising of the changes. IVF clinics were then faced with a dilemma:

  • did they comply with their licences- and refuse treatment- and therefore possibly act unlawfully under the Sex Discrimination Act (which would open them up ot the possibility of damages and untold bad publicity)?; or
  • did theycomply with the Sex Discrimination Act- and risk losing their livelihoods and a huge fine?
My understanding is that IVF clinics have, properly, done the former. But this still did not solve the issue about surrogacy.

Then Jay Weatherill stepped in. He declared that SA had to find out what its discriminatory laws were- and get rid of them. SA was lagging behind, he said. He was right. Other States had gone through this exercise - Queensland for example in 2002-3- as had the Commonwealth under Kevin 

And thus the SALRI review was set up

The South Australian Law Reform Institute (with the wonderful acronym SALRI) then reviewed the laws- and recommended wholesale changes to end discrimination. I made both written and oral submissions about reproductive rights in SA, seeking to end the discrimination.

The result?

There is now the Relationships Register Bill to reform the law in SA. When it comes to assisted reproductive treatment, discrimination will go, because it will be a licence condition
prohibiting the IVF doctor from refusing to provide assisted reproductive treatment to another on the basis only of the other's sexual orientation or gender identity, marital status, or religious beliefs. The old definition of infertility will also go: "if it appears to be unlikely that, in the person's circumstances, the person will become pregnant other than by an assisted reproductive treatment".

The law that governs surrogacy in South Australia is the Family Relationships Act. The Bill makes plain that those eligible for surrogacy in SA are singles, married couples or those in registered relationships, or those in a marriage-like relationship who have lived together for at least 3 years. Those who are married or in registered relationships do not have a time frame of eligibility save that they have become married or their relationship has been registered- they could be eligible that day, even if they have not previously lived together.

What is not known

It's not known whether the Bill will be passed, and if passed when it will take effect. In the meantime those seeking to have children via ART or surrogacy in SA (and their doctors) have to wait and see. Hopefully MP's will support this sensible scrapping of discriminatory laws that are in breach of our international obligations, and brings SA into line with most other States in this area.

Friday, January 27, 2017

It's illegal to create a part-pig/part-human embryo in Australia

From the US comes news that a part-pig, part-human embryo has been created, apparently in the name of  medical research.

Back in 2002, our various Governments got together and decided that it would be an offence to do this type of research here. It was considered to be beyond the pale. The Federal Parliament under the Howard Government then passed the Prohibition of Human Cloning by Reproduction Act 2002, which sets out a whole series of offences to do with embryos, including the creation of a chimeric embryo such as this. This offence attracts a maximum penalty of 15 years imprisonment. OUCH!

As part of a national scheme, all the States and the ACT also passed matching State and ACT legislation. The Federal Act unusually allows them to sit side by side. The usual rule under the Constititution is that Federal law overrides State law to the extent of any inconsistency. Therefore (except in the NT where they rely on just the Federal law), any researcher undertaking this research could find themselves under the double whammy of a prosecution under Federal law of up to 15 years, and up to 15 years under State law, such as the Human Cloning for Reproduction and Other Prohibited Practices Act 2003  (NSW).

And just there is no confusion about it- if the embryo is deemed to be a hybrid embryo, not a chimeric one, then THAT is an offence attracting up to 15 years jail under both laws.

It's the same legislation that makes it an offence to pay an egg, sperm or embryo donor anything other than their reasonable expenses, punishable by up to 15 years jail.

Tuesday, January 24, 2017

Surrogacy in Laos: AVOID!

According to reports, the latest place for intended parents to consider surrogacy is tiny Laos, wedged between Vietnam to the east, Cambodia to the south, Thailand to the west and China to the north.

The person who is at the centre of surrogacy in Laos is Dr Pisit from Bangkok- the very same doctor at the centre of the Baby Gammy saga, and the very same doctor who apparently helped the son of a Japanese billionaire to create- at the same time- between 13 and 16 children via surrogacy: what the world's media called the baby farm.

What we have seen from one developing country to another is a few tentative moves towards surrogacy, driven by agents and doctors, followed by an explosion of growth, and then a scandal or two- and then a knee jerk reaction from the government to close it all down. Far better to have regulated the whole process from the beginning, with transparent processes all the way through, independent legal advice and counselling for the surrogate and the intended parents at the beginning, and judicial oversight at the end.

Last year I was asked at a conference that surrogacy happened in Ghana, but that there were no laws, and what should be done. My response was: "Get laws!" Only with adequate laws and their enforcement can there be protection.

While I have seen remarkably successful surrogacies occur in developing countries, I have also seen surrogacy arrangements where everyone (surrogate, intended parents and the baby) have been exploited, and the only people not exploited were the doctors and agents organising the whole deal.

The scandals have included:

  • parents having children who are (unknowingly) not genetically theirs (India and Thailand).
  • parents taking one child and not the other- because it was the "wrong" gender (India).
  • parents discovering that one of their children was not Caucasian but Indian (India).
  • the surrogate keeping one of the twins, because she put her age up illegally, and then fell in love with the idea of having a boy (the Baby Gammy saga- Thailand), the other child ending up in the care of a convicted paedophile and his wife.
  • surrogates being kept in dormitories.
  • surrogates not obtaining independent legal advice.
  • one clinic ensuring that 80% of surrogates have Caesarian sections (India).
  • Nepalese women going to India to be surrogates when they weren't allowed to be surrogates at home.
  • Indian women going to Nepal to be surrogates.
  • A surrogate being implanted with 6 embryos (India).
  • Colombian women being trafficked to Mexico for foreign intended parents.
  • Filipino women allegedly being trafficked to Cambodia for surrogacy there.
  • Intended parents being stuck and not being able to get their babies home easily (India, Nepal, Thailand, Mexico, Cambodia).
So what have we seen:

  • India- up to a billion dollar industry, restricted in 2012, then again in 2014, closed in 2015
  • Thailand- closed in 2014
  • Nepal- closed in 2015
  • Mexico- closed in 2015
  • Cambodia- closed in 2016
Laos is next. Without adequate laws in place, another scandal will hit there. In each of the places- what has been obvious is that there has been a lack of proper laws to adequately regulate surrogacy. In the words of Australian Chief Judge John Pascoe, in many developing countries "it's the Wild West" where anything goes.

Until there are laws in place to adequately regulate the IVF industry, agents and surrogacy generally, anyone who goes to Laos for surrogacy is really asking for trouble.

There are other places that are far less risky. My message: avoid, avoid, avoid.

Sunday, January 8, 2017

Cambodia still has a long way to play out

The sorry tale that is surrogacy in Cambodia still has a long way to play out- if only because there are foreigners, including Australians whose surrogates were just pregnant before the Cambodian government a couple of months ago decided to ban all forms of surrogacy there.

As I have said repeatedly, when it comes to surrogacy there are sharks in the water. Quite simply, when there are people desperate to have children, and perceived to have money, there will be others who will stop at nothing to get hold of that money. It is very much a case of buyer beware.

Australians have a view that the government will fix everything and regulate everything. When it comes to IVF, this is a fair view. IVF clinics in Australia are regulated both at a State and Federal level in different ways, and on top of that there are more regulations when it comes to surrogacy. Australians also have an expectation that if they go to their local IVF clinic (or even one on the other side of the country) that the clinic will be well regulated, well run and that the people running the clinic are honest.

This assumption should not be made when going overseas. Typically clinics are not or poorly regulated (at least in developing countries). In most places surrogacy agencies are simply not regulated. There is an absence of regulation for surrogacy agencies in developing countries. Even in the US, the assumption of Australians is that agencies are regulated. Typically, they're not. If the agency is owned by a lawyer or a psychologist or a doctor, then there is some indirect regulation- but that's about it in most places.

As we have seen in the last week, Filipino women were detained at Manila before getting on a plane to Phnom Penh, because the belief of authorities was that these women were being trafficked to Cambodia for surrogacy for foreigners. I bet that these women were not told before they got to Manila airport that if they landed in Cambodia, they would be likely jailed by authorities, who viewed their activities as illegal, and to avoid going to jail they would have to remain in hiding.

The detention reminded me of the scheme by Rudy Rupak. Rupak has been indicted by a US federal grand jury of wire fraud. His scheme, exposed by Australia's ABC, was in part to traffic Colombian women to Mexico to undertake surrogacy there for foreigners. His offsider accused Rupak of organising a Ponzi scheme.

It also reminded me of the scheme by then Californian attorney Theresa Erickson, which was to produce babies in the Ukraine on demand for US intended parents- which led to her jailing and disbarment.

And if you think Cambodian authorities don't mean business, think again. Australian agent Tammy Davis-Charles remains in custody in a notorious Cambodian prison waiting her trial about people trafficking.