Thursday, September 28, 2017

What now for those undertaking surrogacy in the US and Canada?




 


Image result for corporal jones don't panic
I am told that since the decision in Bernieres and Dhopal, some intended parents have decided not to proceed with international surrogacy. While surrogacy is the most complex way to conceive a child, and international surrogacy is then the most complex way known to humanity- in my view the risk of undertaking international surrogacy to the US and Canada is no higher than it was before the decision.

Yes, there is risk. There always has been. Yes, it is unlikely that you would be a parent under the Family Law Act, but that is something that has been in doubt since 2011. The reality remains that there is a severe shortage of surrogates in Australia. For some intended parents, the door on domestic surrogacy has been closed on them-  gay couples in WA, single men in WA, anyone in the NT, many in Tasmania, singles in SA and the ACT.

However, it is my expectation that intended parents can still undertake their surrogacy journeys to the US and Canada in largely the same way as before the decision in Bernieres and Dhopal. The sky has not fallen.

Of course, you have to check local State laws to make sure that you are not committing an offence. It is possible for intended parents from anywhere other than Victoria or Tasmania  to be committing offences when undertaking surrogacy overseas. Bernieres and Dhopal has not changed that. The law there is the same now as it was before the decision in Bernieres and Dhopal

Some weeks ago, as I have blogged, the Full Court of the Family Court found that a Mr and Mrs Bernieres were unlikely to have been the parents of their children for the purposes of the Family Law Act and more importantly were not the parents of their children under section 60HB of the Family Law Act.

WHAT IS SECTION 60HB OF THE FAMILY LAW ACT


This is the provision that in essence says that if you are a parent following the making of a State parentage order (think Queensland, NSW, Victoria etc) then you are a parent under the Family Law Act.

What the Family Court said was to the effect that anyone undertaking surrogacy anywhere had to comply with their State law concerning surrogacy to fall within section 60HB and if they therefore did not fall within section 60HB were not parents under the Family Law Act.

The problem is best illustrated in the case of Mr and Mrs Bernieres, who went to India. A requirement of Victorian surrogacy law requires the intended parents to have the implantation occur at a Victorian IVF clinic. Quite clearly Mr and Mrs Bernieres who had undertaken surrogacy in India did not do that.

 WHAT IS THE IMMEDIATE IMPACT OF THAT DECISION? 


Mr and Mrs Bernieres are not parents under the Family Law Act and therefore are unlikely to be parents for the purposes of inheritance.

This part of the decision at some level is not a great surprise. The Family Law Council in a report to Attorney-General Senator George Brandis in December 2013 predicted an outcome along the lines of this case and recommended legislative changes. They haven’t happened and none have been foreshadowed by the Turnbull Government.

Most intended parents who have gone overseas for surrogacy have not gone anywhere near the Family Court. In an average year there might be say 250 children born overseas through surrogacy and maybe 2 or 3 of those children will be the subject of a Family Court order.

 Those children will likely have obtained Australian Citizenship and therefore be entitled to a Medicare card. They may have Centrelink benefits. They will in due course be able to go to the doctor and hospital and be enrolled in childcare or school.

 Not being recognised under the Family Law Act (and therefore inheritance purposes) would no doubt have a deep psychological impact on Mr and Mrs Bernieres and therefore on their child. Part of the point of undertaking surrogacy is not only to have a child but to be recognised as the parents. More poignantly, when we are talking about the rights of children, it is therefore much more important that the parent/child relationship is recognised from the child’s viewpoint. As one English judge put it - having an order recognising someone as the parent of a child through surrogacy has a transformative and likely irreversible legal effect on the parent/child relationship.

 Having acted for clients who have had their legal relationship with their child upheld by the courts, I can say loud and clear that after all the struggles these intended parents have gone through to become parents, it’s truly refreshing to be told by the State that you are an OK parent. There is something truly noble to hear a judge say that most cases that come before the courts deal with a paucity of parenting, not an abundance of parenting as was obvious in that case. It is common on those occasions for my clients to cry tears of joy.

 Nevertheless, the Family Court has told us that intended parents going overseas may not be parents under section 60HB of the Family Law Act. This will have an impact in one of three ways:

 1. If they are not parents, therefore they may not have parental responsibility under the Australian Passport Act, for the purposes of the issue of a passport for their child. That Act does not define who is a parent or what is parental responsibility. It would appear to refer back to the Family Law Act. However, the Department of Foreign Affairs and Trade has taken a different view about the issue of passports.

 2. It will have an impact if the parties separate as neither being a parent under the Family Law Act, so the presumption about equal shared parental responsibility doesn’t apply. Instead if they seek orders under that Act it won’t be on the basis that each is a parent but on the basis that each is someone concerned with the care, welfare and development of the child. It is unlikely that there would be any discrimination between them relying on that provision instead of that being as parents. However, case authority in the FAmily Court says that before someone who is concerned with the care, welfare and development of a child must get permission from the court before making an application- to satisfy that they have appropriate legal standing. A parent does not need to satisfy this test.  Indeed in Bernieres and Dhopal the court was only too willing to make parental responsibility orders in favour of Mr and Mrs Bernieres.

3. It is likely that the effect of the decision in Bernieres and Dhopal is that intended parents who are not parents under section 60HB are therefore not parents for the purposes of State and Territory succession laws, i.e. inheritances.

 I have long been of the view that because of the uncertainty of Family Court views as to whether intended parents under foreign surrogacy arrangements are parents or not (there having been before Bernieres and Dhopal a whole myriad of opinion by the judges) that intended parents must have properly drafted wills leading up to the birth of their child and after the birth of their child to ensure that their child is not accidentally disinherited. The wills must properly refer to the child in question or the intended parents may risk accidentally disinheriting their child.

As I have previously blogged, it is likely that there will be exceptions to Bernieres and Dhopal.

 Child Support 


 As I have blogged separately, it is likely that intended parents going overseas even if not recognised as parents under the Family Law Act will in most cases be recognised as parents for the purposes of child support if they split up. However some countries are excluded from that enormous list. One of those is Russia where Australians have undertaken surrogacy, albeit in small numbers.

 Intended parents who undertake surrogacy in the United States are recognised in Australia as parents for the purposes of child support. Intended parents who undertake surrogacy in Canada – other than Quebec – are recognised as parents in Australia for the purposes of child support.

Superannuation 


 As I have blogged elsewhere, intended parents who have superannuation may or may not be parents of a child for the purposes of the Superannuation Industry Supervision Act, i.e. the legislation that regulates superannuation. Each intended parent who undertakes surrogacy overseas ought to get specific advice from their financial planner and legal advice to ensure that their child is protected.

Citizenship


Let’s be clear. The Department of Immigration and Border Protection has said before the decision in Bernieres and Dhopal that section 60HB does not apply to children born overseas through surrogacy. As the Department has said in its guidance to its own officers in looking at the issue as to citizenship:

 “Section 8 of the Act has the effect of limiting who may be considered a parent when a person is the child of another person under section 60HB of the Family Law Act. Section 8 of the Act provides that if:
 • A person is a child of a person under s.60HB of the FLA; and
 • A child of that person’s partner under s.60HB or the biological child of that person’s partner

The child is taken to be the child of that married or de facto couple and of no one else.

The requirements of section 8 of the Act cannot be met, or are extremely unlikely to be met, by an international surrogacy arrangement. Whether the requirements of section 8 of the Act can be met in the circumstances of an international surrogacy arrangement will depend on whether prescribed State and Territory laws enable the Court to make an order that a child is the child of one or more persons where the child was born overseas.

Generally, the State or Territory Acts either expressly do not apply to overseas surrogacy arrangements, or include such onerous requirements around counselling or other aspects of the surrogacy agreement that it is extremely unlikely that they will be met by a commercial overseas surrogacy arrangement. If there is a surrogacy arrangement and section 8 requirements are not meant to provide certainty as to who the parents are, then the decision maker must determine who the parent of a child is by interpreting the word ‘single parent’ as set out by the courts in H v Minister for Citizenship …” [which is that someone is a parent either by virtue of biology, being recognised under the Family Law Act or as being seen in the general sense of society as the parent of that child]. 

When one looks carefully at section 8 of the Australian Citizenship Act, section 8 will only apply if:

1. A child is a child of a person under section 60H of the Family Law Act [and the Family Court in Bernieres and Dhopal said that section 60H does not apply to international surrogacy]; OR

 2. A child is a child of a person under section 60HB of the Family Law Act [and the effect of Bernieres and Dhopal is that someone is not a parent of the child under section 60HB of the Family Law Act]; and either

 3. The child is a child of the person’s spouse or de facto partner under that section; or

 4. The child is a biological child of the persons spouse or de facto partner.

Therefore looking at the example of Bernieres and Dhopal, Mr and Mrs Bernieres’ child was not a child of Mr or Mrs Bernieres under section 60H of the Family Law Act. The child was not a child of Mr and Mrs Bernieres under section 60HB of the Family Law Act. Therefore section 8 of the Australian Citizenship Act would not apply to someone in the same position as Mr and Mrs Bernieres.

 Therefore I am of the view that it is likely that anyone undertaking surrogacy overseas will still be considered a parent of the child under the usual test under section 16 of the Australian Citizenship Act, and will not fall within section 8 of the Australian Citizenship Act. In my view it is likely that the only people who will be covered under section 8 of the Australian Citizenship Act by s.60HB are intended parents in South Australia who before undertaking their overseas surrogacy journey have obtained the permission of the South Australian Attorney-General to do so and have obtained (after they have undertaken surrogacy overseas) an order from the Youth Court of South Australia recognising them as the parents.

Section 16 of the  Australian Citizenship Act requires that for anyone born overseas on or after Australia Day 1949 that:
  • at the time of birth they had an Australian citizen parent;
  • their identity can be established (under s.17(3))
  • they can therefore become a citizen by applying tot he Minister for Immigration and Border Protection (i.e., the Department of Immigration and Border Protection).
The Department can rely on the existence of overseas court orders in cases of surrogacy to establish parentage, and I am told does so in the case of orders made in the US and Canada.

The child need only have one Australian citizen parent at the time of birth.

The usual test in H v Minister for Immigration (although the court in that case said that it did not apply to surrogacy- the Department is of the view that it does) for who is a parent for citizenship is:

  1. Is the person the biological parent? OR
  2. Is the person a parent under the Family Law Act? OR
  3. Is the person someone seen in the wider context of society as a parent of that child?
With the last- there is no need for a genetic connection. However, the Department quite properly is very concerned when there is no genetic connection between parent and child and will scrutinise the application to the maximum possible extent- so as to avoid child trafficking. Anyone who is likely not to have a genetic connection with their child to be born through surrogacy ought to plan their journey very carefully, preferably after careful Australian legal advice. The sooner the planning and legal advice, the better.

Thursday, September 21, 2017

The 50 shades of grey of parenting after international surrogacy

If you have undertaken surrogacy overseas, the obvious question to ask is whether you are parent in Australia.  One might think that the answer to that question is very simple – yes or no. 
The answer is not so simple.

Let’s start with family law

The Family Court in the recent decision in Bernieres and Dhopal said, in effect, that if you go overseas for surrogacy but haven’t complied with your local state law concerning surrogacy, then you are not a parent under section 60HB of the Family Law Act and therefore not a parent under the Family Law Act.  An example of what you might have to do is what happened to Mr and Mrs Bernieres, namely that to comply with section 60HB of the Family Law Act, even though they undertook surrogacy in India, they would have had to have undertaken IVF at a Victorian IVF clinic!
What is not clear is if someone has undertaken surrogacy overseas when they lived in Australia and obtained an order from an overseas court saying that they are the parents – whether they will be recognised as the parents.
If the intended parents lived overseas and underwent surrogacy overseas, then a Family Court decision from 2013 says provided that they comply with the law overseas, that they would be the parents under the Family Law Act.
In some parts of the United States, post birth surrogacy orders are made.  Typically, one parent (say the male in a heterosexual relationship or one of the men in the gay relationship) will be identified as parent 1.  He will be declared as the parent and parental rights in favour of the surrogate and her husband will be terminated.  There will then be a second parent adoption in favour of the other intended parent (whether they are genetically or not the parent of the child), thereby naming the second parent as a parent of the child as well.  An adoption of this kind would appear not to be within the intention of the Hague Intercountry Adoption Convention.  Once an adoption order is made, it is clear that under the Family Law Act, the second parent is therefore a parent as well.
Therefore, parent 1 may not be a parent under the Family Law Act (if section 60HB of the Family Law Act apply) but parent 2 will be because of other provisions of the Family Law Act, due to there being an adoption.  A second parent adoption necessarily means that there is a first parent –but the bizarre situation under the Family Law Act is that the first parent may not be a parent under the Family Law Act.  Go figure!
A surrogacy order made in most parts of the United States and New Zealand might be able to registered with the Family Court of Australia and that order provides that the intended parents are the parents of the child, then the effect of registration will mean that the intended parents are parents of the child in Australia under the Family Law Act.
Inheritance
It’s essential for anyone undertaking surrogacy overseas to make sure that there is a properly drafted local will prepared after the surrogate is pregnant and another one properly drafted after the child is born. 
Not having a will or a properly drafted will is a grave mistake.  What Bernieres and Dhopal has highlighted is that the child may not be your child under the Family Law Act (and therefore for inheritance purposes) which means that if you don’t execute the right documents in time and then die, you have visited a terrible mess upon your child and committed a calamity.  Your child may well be disinherited by your failure to take action.
Child Support
The bizarre outcome of the decision in Bernieries and Dhopal is that while it would appear that you aren’t a parent or may not be a parent under the Family Law Act, i.e. when your child is born or comes into Australia, if you and your partner separate, you will almost certainly be a parent for the purposes of child support!  Under section 29(2) of the Child Support (Assessment) Act 1989 (Cth) these are the ways that the child support registrar can be satisfied that a person is a parent of a child, including:
·         The person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage.
·         That the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of the State, Territory or prescribed overseas jurisdiction, as a parent of the child.
·         A Federal Court, Court of a State or Territory or of a prescribed jurisdiction has found expressly that the person is the parent of the child or made a finding that it could not have made unless the person was a parent of the child and the finding is still current.
·         The person has, under the laws of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that a person is a parent of the child and the instrument is still current.
·         That the child has been adopted by the person.
·         That the person is a parent under section 60HB of the Family Law Act.
What is a prescribed overseas jurisdiction for section 29 of that Act is simply enormous and seems to fit almost every country on the earth (although there are some notable exceptions, such as China and Russia):
Algeria
Argentina
Austria
Barbados
Belarus
Belgium
Bosnia and Herzegovina
Brazil
Brunei Darussalam
Burkina Faso
Canada, the following Provinces and Territories:
Alberta
British Columbia
Manitoba
New Brunswick
Newfoundland and Labrador
Northwest Territories
Nova Scotia
Nunavut
Ontario
Prince Edward Island
Saskatchewan
Yukon
Cape Verde
Central African Republic
Chile
Colombia
Cook Islands
Croatia
Cyprus
Czech Republic
Denmark
Ecuador
Estonia
Fiji
Finland
Former Yugoslav Republic of Macedonia
France
Germany
Greece
Guatemala
Haiti
Holy See, The
Hong Kong
Hungary
India
Ireland
Israel
Italy
Kazakhstan
Kenya
Kyrgyzstan
Liberia
Lithuania
Luxembourg
Malawi
Malaysia
Malta
Mexico
Moldova
Monaco
Montenegro
Morocco
Nauru
Netherlands
New Zealand
Niger
Niue
Norway
Pakistan
Papua New Guinea
Philippines
Poland
Portugal
Romania
Samoa
Serbia
Seychelles
Sierra Leone
Singapore
Slovakia
Slovenia
South Africa
Spain
Sri Lanka
Suriname
Sweden
Switzerland
Tanzania (excluding Zanzibar)
Trinidad and Tobago
Tunisia
Turkey
Ukraine
United Kingdom (including Alderney, Gibraltar, Guernsey, Isle of Man, Jersey and Sark)
United States of America
Uruguay
Zambia
Zimbabwe
(I've highlighted places where Australians have undertaken surrogacy.) 

It is an extraordinary thing that you may not be recognised as a parent when your child comes into Australia – at a moment of joy, because it is said you should not be recognised as a parent – but when you and your ex split up it’s perfectly fine to call you a parent for the purposes of child support.
Superannuation
If you’ve undertaken surrogacy in a place where there has not been a Court order, then it is unlikely that your child will be your child for the purposes of superannuation.  Under section 10 of the Superannuation Industry (Supervision) Act 1993 (Cth):
            child”, in relation to a person, includes:
(a)   an adopted child, a stepchild or an ex-nuptial child of the person; and
(b)   a child of the person’s spouse; and
(c)    someone who is a child of the person within the meaning of the Family Law Act 1975.”
The same section says an adopted child:
            “…in relation to a person, means a person adopted by the first-mentioned person:
(a)   under the law of a State or Territory relating to the adoption of children; or
(b)   under the law of any other place relating to the adoption of children, if the validity of the adoption would be recognised under the law of any State or Territory.”
What’s unknown about the definition of child in that context is how it would be interpreted.  If it is interpreted in a similar way to that taken by the Federal Court under the Australian Citizenship Act, then child might be seen as your child as generally seen within society.  However if a stricter view is taken, then your client may not be your child.  If you have undertaken surrogacy overseas in a country where you have relied on a contract or operation of law, rather than a Court order (such as India or Ukraine) the chances are that your child may not be your child.
If you have gone to a country where there has been a Court order, then see my comments about family law above.
If you went to a country with a second parent adoption order and a post birth process (as happens in some parts of the United States) then the definition of child under the Family Law Act is wider than the definition of adopted child under this Act – and therefore the child if adopted by you would be your child for the purposes of superannuation.  If the child was adopted by your spouse, then because the definition of child includes a child of the person’s spouse – then the child is also your child for the purposes of superannuation.
Anyone with a superannuation policy should look at having a binding nomination of beneficiary – and obtain advice from a financial planner about whether that is a wise idea.
Citizenship
Yes, you say, all very interesting but can I get the baby back home?  The usual test as to who is a parent of a child born overseas is:
1.      Are you genetically the parent?
2.      Are you a parent under the Family Law Act?
3.      Are you seen within society as being the parent (even if there is no genetic link)?
The Immigration Department has often relied upon judgments made in Canada or the United States to establish parentage. 
The problem is that when there has been an artificial conception procedure, then who is a parent is determined under section 8 of the Australian Citizenship Act by sections 60H and 60HB of the Family Law Act.  Section 60H, so the Family Court told us, does not apply to surrogacy.  We come back to the possibility that if the Immigration Department takes the same view of the effect of section 60HB as the Family Court did, then you are not a parent for the purposes of the Australian Citizenship Act.
The Immigration Department has taken the sensible view that section 60HB of the Family Law Act shouldn’t apply to people undertaking surrogacy overseas – either because the State legislation means that they can’t undertake surrogacy overseas or to comply with the State legislation is so stringent that it makes undertaking surrogacy overseas impossible.
The unknown factor is whether the Immigration Department decides, in light of the decision in Bernieres and Dhopal, to change its policies.  If it does so in line with the decision of Bernieres and Dhopal, that will make it next to impossible from that time on for intended parents to undertake surrogacy overseas.
Given that approximately 250 children a year are born to Australian intended parents through surrogacy overseas, a decision of that kind could be momentous.