Wednesday, October 31, 2018

Trump's plan for citizenship likely to complicate Aussie surrogacy journeys

The United States President Donald Trump has told HBO that he plans to terminate the right to US citizenship to babies born in the US to immigrants and non-citizens. 
Mr Trump said he was seeking legal counsel to determine if he was able to bypass Congress and end birthright citizenship through an executive order.  He said:
            “They’re saying I can do it just with an executive order.”

The President said that the US was the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States. As the US broadcaster NPR has pointed out- it’s not. It’s one of 30 countries allowing children born there to become citizens, including Canada and Mexico.
About 50 babies a year are born to Australian intended parents in the United States via surrogacy.  Currently, the babies are entitled – at birth – to US citizenship.  This is because of the 14th Amendment to the US Constitution.  That amendment starts:

            “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The Amendment occurred after the US Civil War to guarantee that former slaves and the children of slaves were US citizens.  The Amendment is frequently before the courts. There is rarely a surrogacy law conference I go to in the US where the subject of the 14th Amendment is brought up in conference presentations or discussions amongst delegates.

House Speaker Paul Ryan said such a move would be “unconstitutional” and “Well, you obviously cannot do that.  You cannot end birthright citizenship with an executive order.”

NPR reports that Ryan noted any change to a constitutional amendment requires an act of Congress, adding:
“We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as Conservatives we believe in the Constitution…I’m a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

One of the complications for Australians undertaking surrogacy in the United States is that if the executive order issues and is not stayed or frozen by the courts, then the children being born in the United States will not be recognised as US citizens.  They will not have in fact any citizenship at all unless and until an application for Australian citizenship is successfully made to the Australian Government.  Typically, Australian citizens undertaking surrogacy in the United States obtain US citizenship for their child, and then travel back to Australia where the child applies for and obtains Australian citizenship.  The change, which my colleagues in the US say is unlikely to succeed, might mean that Australian citizens caught up in the mess may have to apply for Australian citizenship in the United States. 

To travel to the United States, Australians typically do so on ESTA under the visa waiver program, allowing Australians to say in the US for a maximum of 90 days.  According to the Department of Home Affairs, 25% of citizenship by descent applications are not disposed of within 2 months and 10% are not disposed of within 4 months.  Intended parents and their children might be caught between a rock and a hard place of the delays in the application for citizenship by descent not being decided by the time that their visa to the US expires.  

What President Trump has put forward may be just electioneering ahead of the mid-terms, and probably should not be overblown, but who can say?

South Australian ART/surrogacy review completed

Yesterday the report of the South Australian Law Reform Institute into the regulation of assisted reproductive treatment and surrogacy in that State was handed to the State Government.

A review was commenced by Professor Sonia Allen, and then continued at the direction of the Weatherill Government by SALRI, an affiliate of the University of Adelaide. Following the State elections, the incoming Marshall Government continued with the review.

The conclusions of the Review are not yet known, nor for that matter what approach the Marshall Government might take. I made both oral and written submissions to the review.

Monday, October 22, 2018

Push for NT surrogacy- please help!

Currently there is a push for there to be surrogacy laws in the Northern Territory. When all the States copied the ACT's lead back in 2008-2012 and legislated to allow and regulate surrogacy, the Northern Territory did not.

It is legal  in the Northern Territory to engage in any form of surrogacy. Whilst this might seem a case of anything goes, in reality no surrogacy can happen there, at least through an IVF clinic, because:

  • the only IVF clinic in the Northern Territory, Repromed, cannot undertake any commercial surrogacy. This is because licensing conditions applying to all Australian IVF clinics, the National Health and Medical Research Council, Ethical Guidelines on the use of artificial reproductive technology in clinical practice and research (2017), bans them from taking part in any commercial surrogacy.
  • Repromed has decided that it will not provide treatment in surrogacy cases because the law does not allow the transfer of parentage, a critical part of any surrogacy journey. 
In my view the decision by Repromed is fair enough. Imagine wanting to have kids,  going through that clinic and then discovering that you won't ever become the legal parent!

Intended parents living in the NT are then faced with four heartbreaking choices:

  1. Go interstate and undertake surrogacy there. Of course, this means that they have to uproot themselves from their lives and their jobs in the NT. The NT is home to many people who go tot he Top End for a short posting and then move through. It can ill afford to encourage people to move away due to its legal settings, but it does so currently.
  2. Undertake surrogacy overseas. There is a risk that some people in undertaking an overseas surrogacy journey go to a developing country where the risks of exploitation of them and of the surrogate is higher than it would be at home if surrogacy were allowed.
  3. If you can find a traditional surrogate- do the journey at home, without medical assistance, and fingers crossed have a child- but never be recognised as a parent.
  4. Don't have kids. 

For intended parents who live interstate and are thinking of having a surrogate from the NT, they should think twice about it. If the surrogate gives birth in the NT, then the intended parents may never be recognised as the parents. In one surrogacy journey for a Melbourne couple a few years ago, the surrogate live in the NT. To avoid the difficulty that she might give birth in Victoria, the intended parents arranged for the surrogate to come to Melbourne well and truly  before the birth. Some people might not be so lucky.

It is extraordinary that any Top End surrogate has to travel interstate to give birth- and cannot be a surrogate to a local NT couple (as the parentage won’t change), all because of a lack of laws.

There is a petition on I’ve signed it and I encourage everyone to sign it. There is also a Facebook page. I encourage everyone to  like it.

A push some years ago to have surrogacy laws in the NT didn't come to fruition. The sooner there are commonsense laws in the NT to regulate surrogacy and enable the recognition of intended parents as the parents of children born through surrogacy, the better. They can’t come soon enough.

Modern families and their children public lecture

One of the world's leading academics on how kids turn out from assisted reproductive treatment and surrogacy is delivering a public lecture in Melbourne on Tuesday 30 October.

Dr Susan Golombok from the University of Cambridge Centre for Family Research will summarise research conducted at the centre on parenting and child development in families created by assisted reproductive technologies including in vitro fertilisation, egg donation, sperm donation, embryo donation, and surrogacy. It will also cover research on families created by assisted reproduction for social rather than medical reasons such as lesbian mother families, gay father families, and families headed by single mothers by choice. The research will be examined in the context of the issues and concerns that have been raised regarding these families. The findings not only contest popular myths and assumptions about the social and psychological consequences for children of being raised in these new family forms but also challenge well-established theories of child development that are founded upon the supremacy of the traditional family. 

The details of the lecture can be found here:

Wednesday, October 10, 2018

Sir Humphrey would be proud. Want a child via surrogacy in WA? Try 24 to 1

Yesterday the WA Lower House, on a conscience vote,  passed laws to amend that State's surrogacy laws to allow since men and gay couples to have access to surrogacy. The laws now make their way to the Upper House. This is a good thing. It is something that I called for last year.

An alarming statistic is that in the last 10 years a total of 10 babies- that's right- 10 babies or 1 a year have been born in WA via surrogacy. By contrast,  up to 250 babies have been born overseas through surrogacy to Australians in some years. If WA parents to be go overseas at the same rate as everyone else, then that means for every child born through surrogacy in WA up to 23 or 24 have been born overseas.

This reminds me of the old TV series Yes Minister, which ridiculed how governments were run. In one episode, the Empty Hospital, the Minister was appalled to know that a hospital was empty of doctors and patients- save that it was 15 months old, had a staff of over 500, and was up for  the Florence Nightingale Award for Hygiene:

When the Surrogacy Act 2008 (WA) passed, it allowed single women, heterosexual couples, and lesbian couples to undertake surrogacy, but actively discriminated against single men and gay couples.

That discrimination continued unabated.

In 2015, Australia copped a shellacking at the UN Human Rights Committee in Geneva and as a result vowed to remove exemptions under the federal Sex Discrimination Act that allowed the States to discriminate against LGBTI people in the provision of assisted reproductive treatment and surrogacy. The federal government said it would end those exemptions by 1 August 2016. And indeed it did- except for Western Australia. For some reason, the exemption was continued for Western Australia until 1 August 2017.

In May 2017 I wrote to the WA Deputy Premier and Health Minister calling for the removal of this exemption. The response was that this would be considered by the Health Department. The next step was the holding of a review of ART and surrogacy laws in Western Australia. And now we have the bill- which will remove that discrimination if passed.

When the debate occurred yesterday, all the usual tired arguments in opposition as to the rights of the child were trotted out. Similarly, a gay MP and a lesbian MP spoke passionately in favour of the change.

The leader of the Nationals, Mia Davies, spoke passionately in favour of the change.

If the change is made, then it is likely that WA single men and gay couples will be able to access surorgacy at home rather than go abroad.