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.
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):
Bosnia and Herzegovina
Brunei Darussalam
Burkina Faso
Canada, the following Provinces and Territories:
British Columbia
New Brunswick
Newfoundland and Labrador
Northwest Territories
Nova Scotia
Prince Edward Island
Cape Verde
Central African Republic
Cook Islands
Czech Republic
Former Yugoslav Republic of Macedonia
Holy See, The
Hong Kong
New Zealand
Papua New Guinea
Sierra Leone
South Africa
Sri Lanka
Tanzania (excluding Zanzibar)
Trinidad and Tobago
United Kingdom (including Alderney, Gibraltar, Guernsey, Isle of Man, Jersey and Sark)
United States of America
(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.
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.
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.


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