Friday, January 4, 2019

UK embraces single people as parents for surrogacy- happy to have helped

The UK now allows single people to obtain surrogacy orders so that they can be parents.  Until now, UK law always required two people to apply.  

Matters came to a head in 2015 and 2016 when a single man wanted to be recognised as the father of his child.  The English Court found that it could not do so because the law did not permit that.  

My English colleague, trailblazing Natalie Gamble, helped her client back to Court to challenge the law as being incompatible with the UK Human Rights Act.  To strengthen their case, Natalie asked three colleagues around the world to give expert evidence about surrogacy law and practice in that country, particularly as it effected single intended parents as oppose to couples.  Each of those experts gave evidence by way of a sworn statement or affidavit.  

I was one of those experts.  I gave evidence about the Australian legal system and how it treated these matters.  My American colleague Rich Vaughn gave evidence about the surrogacy system in the United States.  My Canadian colleague Sarah Cohen gave evidence about surrogacy laws and practice in Canada.

The second case in the matter was Z (A Child) (No 2) [2016]. Natalie’s client was successful in challenging the UK law with being incompatible with the UK Human Rights Act.  

Following that change, the UK Parliament enacted laws to give effect to the judgment, namely to allow single people to become parents through surrogacy.

I am proud to have helped my colleague and her client in this matter.

More importantly, I am proud to have helped the child obtain a secure legal parent-child relationship with his father.

Natalie has written the story about the whole process, which can be found here.

Where Australians go overseas for surrogacy

There was a 25% jump in the number of children born overseas via surrogacy compared to the previous year, according to official figures obtained by The Australian.  The Department of Home Affairs figures show that in the 2017 – 2018 year 175 children were born overseas and obtained Australian citizenship by descent.  This compares to the 2016 – 2017 year where only 139 children obtained citizenship by descent from overseas surrogacy arrangements.

That 2016 – 2017 figure was very low compared to previous years when in 2014 – 2015, 242 children obtained citizenship by descent through surrogacy overseas and in 2015 – 2016 the number was 2014.

It seems that the 2016 – 2017 figure was an anomaly.  

Unlike previous years, the Department has not given a breakdown of the number of children born in each country, but merely given the top five countries where Australian children have been born:
·         US
·         Canada
·         Ukraine
·         Thailand
·         Georgia.

The surprising country there is Thailand.  I would speculate that it is unlikely that this is a hangover of babies born before the Baby Gammy saga occurred commencing in August 2014.  You will remember the Baby Gammy saga.  Mr and Mrs Farnell were a couple living in Bunbury who underwent surrogacy in Thailand.  Mr Farnell was a convicted paedophile.  At birth, Mr and Mrs Farnell took Baby Pipah, but not Baby Gammy, who remained in the care of the surrogate Mrs Chanbua in Thailand.  The matter played out in the world’s media, partly resulting in a crackdown on surrogacy in Thailand, and then played out in the Family Court of Western Australia.

More likely the Thailand figure is for children born in Thailand where Australian intended parents have undertaken surrogacy somewhere else in Indochina, such as Cambodia and Laos.  Cambodia cracked down on surrogacy in about October 2016.  There were reports at the time that pregnant surrogates in Cambodia left the country to give birth elsewhere.  One could well imagine that they may have travelled to Thailand, given birth there and subsequently the Australian intended parents obtained citizenship by descent for their children in Thailand.  

The Department of Home Affairs figures do not show two categories of children born overseas via surrogacy:

·         They only show children born to Australians who obtained Australian citizenship.  There are a small number of children who live in Australia where their parents are visa holders (for example permanent residents of Australia) and therefore do not seek Australian citizenship by descent.

·         The other category is the presumably small number of intended parents who are heterosexual couples who falsely claim a pregnancy overseas.  I have seen several cases where those couples of been caught by the Department of Home Affairs.  Presumably there are some couples who get away with it.

I would strongly urge anyone who undertakes surrogacy overseas to comply with the law and to make sure that when they deal with the Department of Home Affairs they do so truthfully.  The figures demonstrate that the Department will properly process citizenship by descent applications.  Their internal guidelines note that the test the departmental officers must follow is that contained in the Australian Citizenship Act, not State or Territory surrogacy legislation.  Anyone in doubt should get competent legal advice about the issue.

Thursday, January 3, 2019

Canadian man stuck with twins in Kenya

Canadian website GlobalNews is reporting that Toronto man Joseph Tito is stuck with twin baby girls born via surrogacy in Kenya.  Mr Tito contacted an Indian surrogacy agency to do surrogacy in Kenya.  

Mr Tito paid US$60,000 for five embryo transfers as well as attorneys and DNA tests in Kenya, an amount about the same or slightly higher than what he might have spent back home with surrogacy.  

Mr Tito understood that there was a quirky Canadian law that covered first generation migrants such as himself not being able to pass on Canadian citizenship to a child born overseas, but it seems didn’t get Canadian legal advice about the issue first, and as a result has become stuck.  

It seems that the twins are stateless. They are not citizens of Kenya, nor Canada. They might become citizens of Italy- a country that is generally against surrogacy- but he doesn't live there. 
I have said it before, and I will say it again: Surrogacy is the most complex way of having a child.  International surrogacy is the most complex form of surrogacy.  It is essential for anyone undertaking international surrogacy to get legal advice first at both ends so that any hitches or roadblocks like this one can be avoided.

Above all, while I feel sorry for Mr Tito, I feel particularly sorry for his poor girls stuck in a legal no man’s land and  stateless.  They deserve better.