Tuesday, May 21, 2019

Introduction to surrogacy

On 10 May I presented to the 2019 Simonidis Steel CPD conference with an introduction to Queensland law concerning surrogacy. Here is my paper:

 

 

INTRODUCTION TO SURROGACY

SIMONIDIS STEEL CONFERENCE


GOLD COAST – 10 MAY 2019

By Stephen Page







INTRODUCTION TO SURROGACY

SIMONIDIS STEEL CONFERENCE

Gold Coast – 10 May 2019


by Stephen Page[1]


1.            Overview

The law on surrogacy is not contained in just one statute.  Surrogacy is a legal process involving the transfer of parentage from the surrogate (called in the legislation “the birth mother”) and her partner (if any) to the intended parent or parents.  It is a form of procreation.[2]

Surrogacy is not the medical process.  In seeking to procreate, there may or may not be a medical process. The medical process is commonly called ART, which stands for either assisted reproductive treatment, or artificial reproductive technology. It includes IVF and artificial insemination.

2.            Decoding the jargon

One of the greatest difficulties in dealing with surrogacy is that there is an extraordinary level of jargon.  Some years ago, I presented at the national conference of an IVF clinic.  I sat in on a previous presentation.  I was struck by some of the words that were used, that I had never heard before.  I decided to check whether the words were in the Scrabble dictionary.  Some were in.  Sadly, trophectoderm (which incidentally is the skin around the egg, hence, derm) was not. 

Terms
Decoded
IVF or in vitro fertilisation
Most people know what this is, which is the introduction of sperm in a test tube with an egg, hopefully resulting in cell division.
Spermatozoa
Please use sperm.
Ovum for one, or ova for more
Please use egg or eggs.
Oocyte (pronounced oh-a-site)
Please use egg.
Embryo
This is the fertilised egg, i.e. the sperm has been introduced to the egg, resulting in cell division and hopefully new life.
Cryogenically frozen
When the embryo is implanted into the cervix of a woman, it has either just been created, or frozen then thawed.  If it has just been created, this is said to be a fresh transfer.  Most commonly the embryo will be frozen.  This is a process of placing the embryo on a super cold piece of metal.  The embryo instantly freezes and turns into a glass-like substance.  Hence this process is called vitrification.  Freezing occurs super quick to avoid ice crystals forming.  The embryo will then be stored in liquid nitrogen.  Later it will be thawed.  This is a much more complex process than merely putting frozen chicken on the sink ready for dinner.  Aside from running a series of tests, embryologists will check whether the egg has hatched (yes that happens with us humans too) or there needs to be assisted hatching.
ICSI: intra-cytoplasmic sperm injection
In typical IVF a quantity of sperm (called a straw) is placed in the small beaker with the egg.  The beaker is about half or a third of the size of one that you might have had at high school science lessons.  Up to 200,000 individual sperm cells will surround the egg.  One may break through, or indeed none.  For men with low fertility (called low motility) and commonly in surrogacy, ICSI will be employed.  One glass tube will hold the egg.  The tail of the sperm will be chopped off.  The head of the sperm will be sucked up into another glass tube which will then be used to pierce the skin of the egg (the trophectoderm), injecting the single sperm cell into the egg (bearing in mind that the sperm cell is the human body’s smallest cell and the egg is the human body’s biggest cell), then that tube will be pulled out and the egg’s skin will reseal.
Blastocyst
Embryos will be used at 3-5 days’ age, preferably 5 days, as they have a higher chance of success.  A 5 day old embryo is typically called a blastocyst.  At 3-5 days if the embryos have not been transferred, they are then frozen (presuming they are not discarded).
Commercial surrogacy
This is defined by legislation in which a fee is paid to a surrogate.  There is no consistent definition across Australia.  What may be commercial in some parts of Australia is non-commercial or altruistic somewhere else.
Altruistic surrogacy
This is not defined by legislation but is taken to be non-commercial surrogacy.
Gestational surrogacy
The surrogate has no genetic link with the embryo.  The embryo is of genetic material of someone else.
Traditional surrogacy
The surrogate is the genetic mother.  She may be the mother by virtue of sex, artificial insemination or indeed after IVF with the implantation of an embryo.
Artificial conception procedure
This is the term used in s.4 and s.60H of the Family Law Act.
Fertilisation procedure
This is the term used in the Status of Children Act 1978 (Qld).

3.            Overview of the law

Aside from one section of the Family Law Act, section 60HB, there is no specific federal legislation to do with surrogacy.  Surrogacy legislation has been enacted by each of the States and the ACT (but not the Northern Territory).  In each State and the ACT, it is an offence of some kind to enter into a commercial surrogacy arrangement and altruistic surrogacy is regulated.

One might think, mistakenly, that in the Northern Territory it is a free-for-all as there are no laws.  In reality, surrogacy is greatly hampered in the Territory.  Because there are no laws to transfer parentage, then the only IVF clinic in the Northern Territory will not undertake surrogacy.  Even if it were to do so, its licensing guidelines prevent it from undertaking commercial surrogacy.  In reality, therefore, the only form of surrogacy that can occur in the Northern Territory is at home traditional surrogacy in which the transfer of parentage cannot be effected.  Therefore, people living in the Northern Territory typically undertake surrogacy interstate or more likely overseas.

4.            How we got to our current legal landscape

There have been two significant events that have shaped our laws on surrogacy.  The first was in 1987 with the Baby M case.  This played out in New Jersey when a surrogate, Mary Beth Whitehead, who had been paid a fee, decided that she wanted to keep the child.  The rise of surrogacy has mirrored the rise of IVF and related assisted reproductive treatment, although of course traditional surrogacy has been known about since time immemorial in the Bible and in ancient Indian texts, amongst others.

Australian lawmakers scrambled to deal with the challenges raised in the Baby M case. In Queensland, the then government appointed Justice Demack of the Supreme Court to carry out a review.  His Honour recommended that all surrogacy be outlawed.  Queensland then became the only State, with the enactment of the Surrogate Parenthood Act 1988 (Qld) to criminalise all forms of surrogacy, whether traditional or gestational, altruistic or commercial, whether occurring in Queensland, interstate or overseas if undertaken by Queenslanders.  It was a short, but extraordinary piece of legislation. 

The second event occurred in 2006.  Then opposition senator Stephen Conroy and his wife Paula Benson were unable to undertake surrogacy in Victoria (their home State), so they travelled to New South Wales to undertake it there.  Once the story broke, then Attorney-General Philip Ruddock challenged each of the States to pass laws about surrogacy.  A consensus was reached amongst the Standing Committee of Attorneys-General that altruistic surrogacy would be decriminalised (where it had been criminalised) and regulated, and commercial surrogacy would be criminalised.  The ACT already had laws allowing for altruistic surrogacy.  Each of the States held an inquiry of some kind about surrogacy.  In Queensland there was an inquiry chaired by former Attorney-General Linda Lavarch.

Following those efforts, legislation was passed around the country:

ACT
Already had its Parentage Act 2004.
Victoria
Assisted Reproductive Treatment Act 2008 and amendments to its Status of Children Act 1974.
Western Australia
Surrogacy Act 2008 and amendments to its Human Technology Reproduction Act.
South Australia
Amendments to its Assisted Reproductive Treatment Act 1988 and the Family Relationships Act 1975 .
Queensland
Surrogacy Act 2010
New South Wales
Surrogacy Act 2010
Tasmania
Surrogacy Act 2012

The New South Wales Act was modelled on the Queensland Act.  Beware that there are subtle differences between the two. 

5.            Becoming parents

The effect of the relevant status of children legislation, which in Queensland is the Status of Children Act 1978 (Qld); and the Australian Citizenship Act 2007 (Cth) is that a child upon being born will be the child of the surrogate (and any other birth parent), not of the intended parents.  The child will have the citizenship of that surrogate and any other birth parent. 

Once an order is made under the appropriate legislation, in Queensland section 22 of the Surrogacy Act 2010 (Qld), the child will become a child of the intended parents, who are now named the parents and by virtue of section 12 of the Australian Citizenship Act if either of the intended parents is an Australian citizen or an Australian permanent resident, the child will attain Australian citizenship.  How this scheme works is quite simple in practice, although labyrinthine to follow:

Step 1 - An order is made under the relevant State legislation, in Queensland section 22 of the Surrogacy Act 2010 (Qld), transferring parentage to the intended parents.

Step 2 - The order is made under a prescribed law under regulation 12CAA of the Family Law Regulations 1994 (Cth).

Step 3 - The intended parents are then recognised as the parents under section 60HB of the Family Law Act.

Step 4 - As they are then both recognised there, they are the parents under section 8 of the Australian Citizenship Act 2007 (Cth).[3]

Section 60H(1) of the Family Law Act 1975 (Cth) does not apply to surrogacy arrangements: Bernieres and Dhopal [2017] FamCA 180.  In that same case, if a couple undertakes surrogacy and are not in a position to obtain an order in their State such as a parentage order under the Surrogacy Act, they are not the parents for the purposes of the Family Law Act.

We shall see if the reasoning in that case about not being the parents survives post Masson and Parsons (discussed below).

6.            Overview of the Surrogacy Act 2010 (Qld)

Ultimately what this Act does is to:

·                criminalise commercial surrogacy arrangements;

·                regulate altruistic surrogacy arrangements;

·                enable the transfer of parentage from the birth mother and her partner (and any other birth parent) to the intended parent or parents.

Section 5 provides:
“The main objects of this Act are —
(a)   to regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and
(b)  in the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result —
(i)      to establish procedures to ensure parties to the arrangement understand its nature and implications; and
(ii)     to safeguard the child’s wellbeing and best interests.”
Section 6 sets out the guiding principles:

“(1)     This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.

  (2)      Subject to subsection (1), this Act is to be administered according to the following principles —

(a)     a child born as a result of a surrogacy arrangement should be cared for in a way that —
(i)      ensures a safe, stable and nurturing family and home life; and
(ii)     promotes openness and honesty about the child’s birth parentage; and
(iii)    promotes the development of the child’s emotional, mental, physical and social wellbeing;
(b)     the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of —
(i)      how the child was conceived under the arrangement; or
(ii)     whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii)    the relationship status of the persons who become the child’s parents as a result of a transfer of parentage;
(c)     the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d)     the autonomy of consenting adults in their private lives should be respected.”
Whenever you have a surrogacy matter that falls under the Act, always take into account what is set out in section 6.  The phrase abut wellbeing and best interests sets out the critical importance of being “both through childhood and for the rest of his or her life”. 

Australian legislation ultimately is modelled at least in part upon equivalent legislation in England.  In the English case of Re X (A Child) (Surrogacy: Time Limit) [2014] EWCH 3135 (Fam), the then President of the Family Division, Sir James Munby spoke about the equivalent of section 22 of our Act,[4] that it:

“Goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who is parents are.  It is central to his being, whether as an individual or as a member of his family.  As Ms Isaacs correctly puts it, this case is fundamentally about X’s identity and his relationship with the commissioning parent.  Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child.  A parental order has…a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity.  A parental order, like an adoption order, has an effect extending far beyond the merely legal.  It has the most profound personal, emotional psychological, social and, it may be in some cases, cultural and religious, consequences.  It creates what Thorpe LJ…referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences”.  Moreover, these consequences are lifelong and, for all practical purposes, irreversible…And the court considering an application for parental order is required to treat the child’s welfare throughout his life as paramount…X was born in December 2011, so his expectation of life must extend well beyond the next 75 years.  Parliament has therefore required the judge considering an application for a parental order to look into a distant future.”

7.             The beginning of the process

When clients come to you to say that they need to undergo surrogacy, you must adopt a critical approach.  By this I mean not that you are critical of their desire to become parents through surrogacy.  No doubt you would be empathetic.  It is to question whether surrogacy is needed.  Do not assume.  Ask questions.  I always ask my new clients as to why they want to undertake surrogacy.  This even applies to single men and gay couples.  For any woman who wants to have a child through surrogacy, the law obliges you to ask why it is required (which I will set out below).  But what must be minded in all of this is whether it is necessary to put the life of another woman at risk.  There is after all a low chance of death for any woman who becomes pregnant and gives birth in Australia.  It is unconscionable to ask a woman to undertake that risk without first wondering and checking whether that risk is necessary.  I have had several clients tell me that they needed to undertake surrogacy, but on checking it seems that all that they needed was an egg donor to enable them to carry the child themselves.

In that first interview, I also want to know whether there are any other things that might cause problems later:

·                Whether either party has HIV.  This is by far and away the most uncomfortable question I have to ask.  If either or both the parties have HIV, then that doesn’t mean they can’t proceed with surrogacy.  It does mean, however, that the process may be slower, go through another clinic and be more expensive.  I would estimate that I have had somewhere between 1,500 and 3,000 surrogacy clients throughout Australia and overseas.  About 40% of those are gay couples.  The incidence of HIV at least amongst those clients is extremely low.  I have had no more than 5 cases where one or both intended parents had HIV.

·                Whether anyone has a criminal history and if so the nature of it.

·                Whether there is any domestic violence history and again the nature of it.

·                Whether anyone has any child protection history, and again the nature of it.

Assuming that the couple need to undertake surrogacy, do they need an egg donor?  If they do, it can be difficult obtaining the services of an egg donor. It is legal for them under the Transplantation and Anatomy Act 1979 (Qld) to advertise for an egg donor, but they can only pay the egg donor reasonable expenses:  sections 40, 44A Transplantation and Anatomy Act 1979 (Qld), sections 21, 24 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), section 17 Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 (Qld).

8.            Finding and paying a surrogate

It is an offence to advertise for a surrogate: section 55 Surrogacy Act 2010.  The offence is committed in Queensland even if the advertising is overseas if the offender was ordinarily resident in Queensland at the time the Act was done: section 54.

Assuming that the couple have found their surrogate, then the next step is a medical one.  Is the surrogate a suitable person to be a surrogate?  Aside from any psychological or legal issues, the medical issue is the obvious one.  If she can’t or shouldn’t carry a child to term, then she should not be a surrogate.  Recently I saw a case where the lawyers had put together the surrogacy arrangement, caused the parties to undertake counselling, obtain the report from the counsellor, had the parties sign the surrogacy arrangement and only then presented the surrogate to the clinic, not knowing whether she was medically suitable to carry!  It was clearly a case of putting the cart before the horse.

Depending on the different procedures at each clinic, the clinic has specific requirements as to what it needs before it will provide treatment.  Typically, the matter will be referred to the clinic’s Ethics Committee.  Medical, psychological and legal requirements have to be met.  Otherwise, there won’t be treatment.

One of the tricks in undertake surrogacy work is knowing that what seems to be clear is not.  For example, while the Surrogacy Act has no prohibition against traditional surrogacy, individual clinics may refuse to treat.  It helps to have knowledge of the market.

9.            Commercial surrogacy

Commercial surrogacy is prohibited.  Queensland has three specific offences:

·                Section 56 – a person must not enter into or offer to enter into a commercial surrogacy arrangement for which the maximum penalty is 100 penalty units or 3 years imprisonment;

·                Section 57 – giving or receiving consideration under a commercial surrogacy arrangement, for which there is the same penalty;

·                Section 58 providing technical, professional or medical services for a commercial surrogacy arrangement, for which there is the same penalty.

The offences can be committed outside Queensland if the relevant person ordinarily resided in Queensland: section 54.  No-one has been prosecuted for undertaking commercial surrogacy overseas since the current batch of laws were enacted across the nation. Queensland, New South Wales and the ACT have specific laws to criminalise overseas commercial surrogacy.  Western Australia by virtue of a long arm law also criminalises overseas commercial surrogacy to some extent.

Prior to the changes enacted as a result of Senator Conroy’s predicament, there was one prosecution in Victoria for overseas surrogacy (under its then Infertility Treatment Act 1995 (Vic)) and several prosecutions over the course of 20 years under the Surrogate Parenthood Act 1988.

There have been a number of reviews of surrogacy laws both at Commonwealth and State level, but there is no suggestion at this stage for the repeal of those extra-territorial laws. 

10.        Next steps

The parties attend upon an experienced fertility counsellor for counselling and assessment.  The counsellor provides a written report (typically in the range of 15-20 pages, much like a family report) which is provided to all of the parties and then the lawyers and the IVF clinic.  The report is ultimately provided to the court.

Presuming that the report is a positive one the parties then enter into a written surrogacy arrangement.  Each side needs to have independent legal advice from an Australian legal practitioner.   It is wise not to enter into the surrogacy arrangement until the report is first obtained, just in case the report contains any surprises that need to be addressed.

Provided these steps and the more formal steps (which I will describe below) are met, then there should no difficulty with the surrogacy arrangement.  Treatment can begin and hopefully as soon as possible the surrogate gets pregnant.

11.        The surrogacy arrangement

What is a surrogacy arrangement is defined by section 7:

“(1)   A
"surrogacy arrangement" means an arrangement, agreement or understanding between a woman and another person or persons under which —

(a)     the woman agrees to become, or try to become, pregnant with the intention that —

(i)                 a child born as a result of the pregnancy is to be treated as the child, not of the woman, but of the other person or persons; and

(ii)              the woman will relinquish to the other person or persons custody and guardianship of a child born as a result of the pregnancy; and

(b)     the other person or persons agree to become permanently responsible for the custody and guardianship of a child born as a result of the pregnancy.

Note—

Section 7 (1) sets out only the minimum requirements for a surrogacy arrangement. There are many additional requirements which must be satisfied to obtain a parentage order under chapter 3. For example, independent legal advice must be obtained before entering into a surrogacy arrangement if transfer of parentage of the child born as a result of the arrangement is desired—see section 22 (2) (e) (i) .

(2)     There may be other parties to a surrogacy arrangement, for example, the woman’s spouse.

Notes—

1        The woman’s spouse (if any) must be a party to the arrangement if transfer of parentage of the child born as a result of the arrangement is desired—see section 22 (2) (e) (v) .

2        "Spouse" is defined in the Acts Interpretation Act 1954, schedule 1 to include a de facto partner and a civil partner.

(3)     Also, there may be other matters dealt with in a surrogacy arrangement.”

The first thing that needs to be noted about section 7 is that a surrogacy arrangement can include an oral arrangement.  It does not need to be written.  Therefore, one could have a commercial surrogacy arrangement in which the agreement is an oral one and yet the offence is still committed.  My first surrogacy case in 1988 in which the surrogate was paid $10,000 to have a child and then decide to keep both the money and the child would if it occurred today be such a surrogacy arrangement.  Helpfully part 3 of the Act sets out key concepts including the meaning of the birth mother, birth mother’s spouse and birth parents and section 8, the meaning of intended parent and couple in section 9.

Surrogacy arrangements are dealt with in Chapter 2.  The key provision is section 15:

“(1)        A surrogacy arrangement is not enforceable.

  (2)        However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother’s surrogacy costs is enforceable unless —

(a)        a child is born as a result of the surrogacy arrangement; and

(b)        the birth mother

(i)         does not relinquish the custody and guardianship of the child to an intended parent; or

(ii)        on an application (if any) for a parentage order in relation to the child, does not consent to the making of the order.”

Therefore the arrangement should be prepared as a surrogacy arrangement but drafted, if the surrogate does not relinquish the custody and guardianship of the child or consent to the making of the order on the basis of being a contract.

Although the surrogacy arrangement can be oral, a parentage order can only be made if the surrogacy arrangement is in writing and signed by the birth mother, her spouse (if any) and the applicant or joint applicants: section 22(2)(e)(v).

Under section 17 of the Act:

               “To remove any doubt, it is declared that, unless and until a parentage order is made under chapter 3 transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 apply to the child.”

This is a section that was considered by Justice Tree in Lamb & Shaw (discussed below).

The theory of section 15 is that if the surrogate doesn’t hand over the child and consent to an order, she can be forced to pay back whatever monies have been spent on her behalf.  Reality is otherwise.  A surrogacy arrangement, with rare exception, as set out by the Surrogacy Act (discussed below) is cloaked in secrecy.  The agreement and all the proceedings held in private.  The public policy behind this is obvious.  The inability to have a child is deeply personal.  An offer by a woman to have a child for those who cannot have children again is an extremely personal journey.  Privacy is craved. 

Imagine if the surrogate refuses to hand over the child and then the intended parents in respect of those fees are left with the choice.  Do they sue for those fees, or leave them right alone?  Leaving aside whether they bring proceedings under the Family Law Act (as seen in Lamb and Shaw) and any cross vested claim for the fees there, if they were to sue, this would be in the local Magistrates Court in open court.  Any member of the public or for that member any member of the local media could read that file and then publicise the case.  The benefits of privacy to the parties would be stripped in one go.  Most intended parents would not want that added pain of publicity on top of either not having the child or not having the order in their favour.

The Law Reform Commissioners in the United Kingdom are currently looking at equivalent legislation.  There have been many submissions by practitioners in the UK that these provisions, which in effect give a capricious surrogate a right of veto over the intended parents ought to go and that instead there should be binding contracts.  I note that whilst commercial surrogacy is illegal in Canada, nevertheless there are binding contracts there.

By contrast, the UN Special Rapporteur on the sale of sexual exploitation of children has asserted last year that binding contracts in the case of surrogacy represent the sale of children.

There is no requirement for the surrogacy arrangement to be witnesses.  In my view, however, it is wise to do so and preferably to have the agreement witnessed by the parties’ solicitor or if that isn’t practicable, by a JP.  The reason for that is obvious – we want to minimise any fraud that may be occurring.  It is common for IVF clinics to require verification of identity of any patients including intended parents using their programme.  There have been a number of identity frauds committed by intended parents through IVF clinics in Australia.  There was a report about 5 years ago from Western Australia of a woman who became pregnant through IVF at a clinic in Western Australia who had forged her husband’s signature. 

The surrogacy arrangement should set out a series of recitals first setting out why they are undertaking surrogacy, what the surrogacy arrangement is, i.e. to be compliant with the Surrogacy Act and what it is not, i.e. commercial surrogacy.  There should be a reference in the recitals about each of the parties having had counselling and having had independent legal advice. 

You then want to set out in the surrogacy arrangement some basics such as who is responsible for registering the birth (the surrogate and her partner), what name the child is to have (to be chosen by the intended parents) cooperation with the process, who pays and what, and an action plan for what if something goes wrong (such as the child is diagnosed with downs syndrome in utero).

Having had a number of cases where there has been a dispute between intended parents and a surrogate about how much the surrogate is paid, rather than merely saying that the payment is a reasonable cost, in line with the Surrogacy Act, I prefer to define what is to be paid, such as a cap on certain payments.

An example of what can go wrong

Bill and Hilary are a couple living in Victoria.  Their friend Monica offers to be a surrogate.

All three parties obtain independent legal advice as to the surrogacy process and enter into an oral surrogacy arrangement.  Oral arrangements are allowed under Victorian law.

Everything proceeds reasonably smoothly.  The child is born.  In accordance with the practice of the hospital, Monica and the baby are transferred to a local luxury hotel under the supervision of a nurse, it being deemed a low risk child birth and low risk to the child.  Whilst there, the surrogate and her boyfriend noticed the minibar.  They take or drink all the alcohol.

They then say to Bill and Hilary that Bill and Hilary are liable to pay for the alcohol.  Monica and her partner consider it a reasonable expense given that she had gone through the trials of pregnancy and trial birth for someone else.  Bill and Hilary point to the agreement (which of course unfortunately for them was oral).

Ultimately, there was a fallout between Bill and Hillary, and Monica respectively.  This ultimately resulted, after my appointment as their solicitor, in my appearing before the County Court in Melbourne four times, with compulsory post birth counselling and assessment (which rarely occurs in Victoria) before the substitute parentage order was made.

One of the morals of the case was that if there had been a written surrogacy arrangement setting out clearly what the expenses were to be paid, then the chance of that argument happening were considerably lower – as expectations of each of the parties could be managed. 

There have been consistent complaints by surrogates to various surrogacy reviews around the country as to tight-fisted intended parents.  My general view is that intended parents should be generous towards their surrogates in terms of payment.  The reality is that would-be surrogates talk to each other on Facebook forums as to what they believe that they are entitled to.  Again, certainty of intention at the commencement of the journey is best.

It may be advisable to provide the surrogate with a debit card for various expenses (to be properly verified).  That way there can be transparency about what has been spent.

I strongly recommend that the surrogacy arrangement is not signed until after the report is obtained from the pre-signing fertility counsellor.  If there are any surprises that come out of that counselling or that report, it is best to know those and manage those before entering into the agreement.

Example

Matt and Chris are a gay couple living in Brisbane.  Their friend Rhonda is aged 38, a lesbian who has never had children.  However she wants to help her friends to create a rainbow family and offers to be a surrogate for them.  Rhonda also suffers from depression and has been under the care of a psychiatrist.

There is no requirement under the Surrogacy Act for the surrogate to have had children before, although it is wise that she has done so.  A typical surrogate:

·         is 25 years or above (in accordance with the legislation but also wise in terms of her maturity and family planning options);

·         has had all her own children (and therefore does not want the child of the intended parents (cf Farnell and Chanbua [2016] FCWA 17 (the Baby Gammy case)) and has therefore experienced pregnancy, childbirth and is fertile.

·         Above all, wants to give the gift of life to somebody else, namely that spirit of altruism that underpins the act.

The obvious difficulties with Rhonda was that she was approaching the end of her biological clock, at age 38, had never had children before and therefore never experienced pregnancy or childbirth (and did not know what they might involve for her including whether she might have a trouble free pregnancy and childbirth or a very difficult journey) and also had depression.

The recommendation from the report was that:

·         It was a high risk journey.

The first step I took was to ensure that the person who did the counselling was an extremely experienced fertility counsellor and psychologist.  I didn’t want to have any chances taken with this matter.

When the report came back, it said there was a high risk journey.  I telephoned the counsellor to have a candid conversation.  I wanted to know whether the surrogacy journey was recommended or not.  If not, I didn’t want to proceed with a disaster that I would have to clean up.  The response was that the surrogacy journey should proceed but there should be measures to ameliorate risk (which was set out in the report):

·         The surrogate continue her anti-depression medication (which didn’t interfere with the pregnancy);

·         The surrogate continue upon her psychiatrist;

·         The surrogate attend upon a psychologist for counselling during the course of the surrogacy journey (being either the counsellor who wrote the report or someone nominated by him).

The surrogacy journey continued smoothly without drama.  The child was born and handed over.  Orders were made.  Everyone was happy.

When drafting a surrogacy arrangement, think of everything that can go wrong as well as everything that needs to be put in there to comply with the Act.  Think of the level of scrutiny that you would be engaging in when drafting a binding financial agreement.  Although the legislation is different, apply the same level of intellectual rigour to the drafting.  Don’t leave it to chance.

12.        During the pregnancy

It is important in my view that if there is any need on the part of the surrogate to have counselling that there should be counselling at various stages during the pregnancy, paid for by the intended parents.  This counselling is not mandated by the legislation but can be wise to be undertaken as it ensures that issues are addressed promptly and matters do not blow out of control.

It is also important that the surrogate has life insurance (assuming that she is insurable) and hopefully health insurance (unless she wants to be a public patient) and income protection insurance (if she works).  Each of these are allowed under our Act.  In some interstate legislation, such as the Assisted Reproductive Technology Act 2008 (Vic), although the surrogate has a risk of death or injury, for the intended parents to pay for the life or income protection insurance to the surrogate would constitute a criminal offence.  Hopefully that situation won’t remain too much longer.

13.        Managing the birth

By virtue of the Status of Children Act 1978 (Qld), the surrogate and her partner (if any) are the parents.  It is their obligation accordingly to register the birth under the Births, Deaths and Marriages Registration Act 2003 (Qld).  Typically, the name of the child is chosen by the intended parents.  Therefore, whilst the surrogate’s surname might be Divine, there is nothing to stop the child’s birth being registered as Francine Fishpaw, assuming that the intended parents want that name to be registered.

At hospital the child will remain the child of the surrogate.  She is the mother under the Status of Children Act 1978 (Qld) and the person along with the baby for whom the hospital has insurance.  Typically, only when the surrogate leaves the hospital will the child then leave the hospital and be handed over to the intended parents.

A significant feature of the Surrogacy Act, reflecting the common law is that the surrogate has the same rights as any other woman to manage her pregnancy and childbirth: s.16(2).

I make it a specific term of any surrogacy arrangement to have a term to this effect –whether the State legislation says so or not.  It is an essential term as to the surrogate’s bodily autonomy, and is always welcomed by my surrogate clients.

14.        Transfer of parentage

Then the second part of the legal process begins, namely the transfer of parentage by application to the Childrens Court of Queensland.  Transfer of parentage occurs in each State and the ACT through State and Territory courts.  The Family Court of Australia and the Federal Circuit Court of Australia do not have jurisdiction to transfer parentage.

The surrogacy arrangement is drafted both to meet the challenges that might occur during the relationship of the parties but primarily to ensure that the various steps under the Surrogacy Act to enable a parentage order to be made are met.

There are 19 requirements of the Surrogacy Act and 11 documents that need to be filed ordinarily.

The proceedings are governed primarily by sections 22 and 25 of the Act.  Section 22 provides:

“(1)     On an application under this part, the court may make a parentage order for the transfer of parentage of a child to the applicant, or joint applicants.

  (2)     The court may make the parentage order only if it is satisfied of all of the following matters —
(a)     the proposed order will be for the wellbeing, and in the best interests, of the child;
(b)     the child —
(i)        has resided with the applicant, or joint applicants, for at least 28 consecutive days before the day the application was made; and
(ii)       was residing with the applicant, or joint applicants, when the application was made; and
(iii)      is residing with the applicant, or joint applicants, at the time of the hearing;
(c)      the applicant, or joint applicants, were entitled to apply under section 21;
(d)      there is evidence of a medical or social need for the surrogacy arrangement;
(e)      the surrogacy arrangement
(i)        was made after —
(A)         the birth mother and the birth mother’s spouse (if any), jointly or separately; and
(B)         the applicant, or joint applicants (jointly or separately);
obtained independent legal advice about the surrogacy arrangement and its implications; and
(ii)       was made after each of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants, obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications; and
(iii)      was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants; and
(iv)      was made before the child was conceived; and
(v)       is in writing and signed by the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants; and
(vi)      is not a commercial surrogacy arrangement;
(f)       the birth mother and the birth mother’s spouse (if any) were at least 25 years when the surrogacy arrangement was made;
(g)      the applicant, or each of the joint applicants —
(i)        was at least 25 years when the surrogacy arrangement was made; and
(ii)       is resident in Queensland;
(h)      the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant, or joint applicants, consent to the making of the parentage order at the time of the hearing;
(i)       a surrogacy guidance report under section 32 supports the making of the proposed order.”
Section 25 sets out the documents that need to be filed.  It provides:

“(1)        For an application for a parentage order, the following documents must be produced to the court —

(a)        a copy of the child’s birth certificate;
(b)        a copy of the surrogacy arrangement;
(c)        an affidavit under section 26 sworn by the applicant, or joint applicants;
(d)        an affidavit under section 27 sworn by the birth mother;
(e)        an affidavit under section 28 sworn by the birth mother’s spouse (if any);
(f)         an affidavit under section 29 sworn by another birth parent (if any);
(g)        for the applicant, or each joint applicant, the birth mother and the birth mother’s spouse (if any)—an affidavit under section 30 sworn by the lawyer who gave legal advice to the person before the surrogacy arrangement was made;
(h)        an affidavit under section 31 sworn by the appropriately qualified counsellor who gave counselling to the birth mother, the birth mother’s spouse (if any) and the applicant, or each joint applicant, before the surrogacy arrangement was made;
(i)         an affidavit —
(i)        sworn by the independent and appropriately qualified counsellor who, for the purpose of the application, interviewed the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant, or joint applicants; and
(ii)       verifying a surrogacy guidance report under section 32 prepared by the counsellor;
(j)         for each applicant who is a woman, an affidavit from an appropriately qualified medical practitioner verifying a report prepared by the medical practitioner as to why the applicant is an eligible woman.
(2)          Despite subsection (1)(d), (e) and (f), a single affidavit satisfying the requirements mentioned in sections 27 to 29 may be sworn by the birth mother, the birth mother’s spouse (if any) and another birth parent (if any).

(3)          Despite subsection (1) (g), a single affidavit satisfying the requirements mentioned in section 30 may be sworn by the following —

(a)        a lawyer who gave legal advice to the birth mother and the birth mother’s spouse jointly;
(b)        a lawyer who gave legal advice to joint applicants jointly.
(4)          Despite subsection (1) (h) , if the same counsellor did not give counselling to the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants, affidavits under section 31 may be sworn by more than 1 counsellor.”

Requirement 1

The application for a parentage order ordinarily ought to be made not less than 28 days and not more than 6 months after the child’s birth: section 21(1)(a).

Typically, we are filing these applications at 3-4 months post birth.  What seemed urgent to clients when they don’t have a child, i.e. to file the application, is nowhere near as urgent once they have a baby and no sleep.

Requirement 2

On the date of filing the application, the child must have lived with the applicants for at least 28 consecutive days: section 22(2)(b)(i).

Note the difference between requirements 1 and 2, as typically the baby will not have been living with the applicants for at least 3 days of its life when it was in hospital.

Requirement 3

At the time of filing the application the child was residing with the applicants: section 22(2)(b)(ii).

Requirement 4

At the time of hearing, the child is residing with the applications: section 22(2)(b)(iii).

Requirement 5

The application is either brought by a single person or by a couple jointly: section 22(2)(c)(iii), (iv), (v) and (vi).

Requirement 6

There is evidence of a medical or social need for the surrogacy arrangement: section 22(2)(d).  If either of the intended parents is a woman, then she must be an eligible woman.  This is provided for in section 14 which says:

“(1)     For an application for a parentage order —

(a)       if there is 1 intended parent under the surrogacy arrangement—there is a medical or social need for the surrogacy arrangement if the intended parent is a man or an eligible woman; or
(b)       if there are 2 intended parents under the surrogacy arrangement—there is a medical or social need for the surrogacy arrangement if the intended parents are —
(i)      a man and an eligible woman; or
(ii)     2 men; or
(iii)    2 eligible women.
  (2)        An
"eligible woman" is a woman who —
(a)        is unable to conceive; or
(b)        if able to conceive —
(i)         is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth; or
(ii)        either —
(A)       is unlikely to survive a pregnancy or birth; or
(B)       is likely to have her health significantly affected by a pregnancy or birth; or
(iii)       is likely to conceive—
(A)       a child affected by a genetic condition or disorder, the cause of which is attributable to the woman; or
(B)       a child who is unlikely to survive a pregnancy or birth; or
(C)       a child whose health is likely to be significantly affected by a pregnancy or birth.”
Accordingly, you may find a woman who is able to conceive but should not be pregnant.  We have had clients who have had major heart or mental health conditions.  Taking that medication whilst good for their health is dreadful for the baby.  An intended mother who takes antipsychotic medication which makes life normal for her, might be required medically to go off that medication as that medication would be harmful to the child.  If she were to do so, then that might result in a real risk of suicide.  She would clearly be an eligible woman. 

Often the medical evidence from experts needs to be reviewed very carefully.

If you have a single male intended parent or a gay couple, they clearly have both a social need and a medical need for surrogacy.  Unless one or both of the men is a transman[5], they cannot carry.

Requirement 7

The surrogacy arrangement was made after the parties obtained independent legal advice about the surrogacy arrangement and its implications: section 22(2)(e)(i).

Requirement 8

Each of the parties obtain counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications: section 22(2)(e)(ii).  Appropriately qualified is defined in section 19 as meaning:

"appropriately qualified" means —

(a)          for a counsellor swearing an affidavit verifying a report prepared by the counsellor, a person who —

(i)         is one of the following —

(A)       a member of the Australian and New Zealand Infertility Counsellors Association;

(B)       a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;

(C)       a psychologist who is a member of the Australian Psychological Society;

(D)       a social worker who is a member of the Australian Association of Social Workers; and

(ii)        has the experience, skills or knowledge appropriate to prepare the report; or

(b)          for a medical practitioner swearing an affidavit mentioned in section 25 (1) (j), a medical practitioner who has the qualifications, experience, skills or knowledge appropriate to prepare the report.”

Requirement 9

The surrogacy arrangement was made with the consent of the birth mother and the applicants.  Surrogacy arrangement is defined in section 7:

“(1)        A
"surrogacy arrangement" means an arrangement, agreement or understanding between a woman and another person or persons under which —
(a)        the woman agrees to become, or try to become, pregnant with the intention that —
(i)         a child born as a result of the pregnancy is to be treated as the child, not of the woman, but of the other person or persons; and
(ii)        the woman will relinquish to the other person or persons custody and guardianship of a child born as a result of the pregnancy; and
(b)        the other person or persons agree to become permanently responsible for the custody and guardianship of a child born as a result of the pregnancy.
Example —
Section 7 (1) sets out only the minimum requirements for a surrogacy arrangement. There are many additional requirements which must be satisfied to obtain a parentage order under chapter 3. For example, independent legal advice must be obtained before entering into a surrogacy arrangement if transfer of parentage of the child born as a result of the arrangement is desired — see section 22 (2) (e) (i) .
  (2)        There may be other parties to a surrogacy arrangement, for example, the woman’s spouse.
Example—
1          The woman’s spouse (if any) must be a party to the arrangement if transfer of parentage of the child born as a result of the arrangement is desired—see section 22 (2) (e) (v) .
2          "Spouse" is defined in the Acts Interpretation Act 1954, schedule 1 to include a de facto partner and a civil partner.
  (3)        Also, there may be other matters dealt with in a surrogacy arrangement.”
Requirement 10

The surrogacy arrangement was made before the child was conceived: section 22(2)(e)(iv).  The Act does not say what is conception.  It is common that parties create frozen embryos before the surrogacy arrangement is signed.  What is conceived was determined by Judge Clare SC in LWV v. LMH [2012] QChC 26.[6]  Her Honour said in effect relying on the everyday meaning, evidence from an IVF specialist and a case dealing with implantation decided in the UK that conception occurred at pregnancy, not at cell division.  It is the first case in the world to decide what is conception.

It is essential in my view to ensure that there is evidence from a doctor, not only about whether a woman is an eligible woman, but how and when conception occurred.  The language in the affidavit of the expert in that case drafted by me said this:

               “The creation of the embryos in 2008 was an act of fertilization.  Fertilization is a step on the pathway to conception.  Many eggs fertilized but many fewer pregnancies are conceived.  The act of conception or the act of conceiving the pregnancy was the actual embryo transfer and the subsequent implantation of that embryo into the uterus of Lisa over the next couple of days with the eventual positive pregnancy test approximately 2 weeks after 7 July 2011…The act of conceiving in this case is viewed as the act of achieving pregnancy.  Therefore, I view the conception of LCH as occurring from the embryo transfer on 7 July 2011.”

Her Honour said:[7]

               “Of course, the construction of the statute is a matter for the court, not doctors, but the expert evidence of the biological processes is relevant to that task…Dr Nasser’s professional distinction between the processes of fertilisation and conception is consistent with the common understanding of what it means to conceive a child.  The same can be said of the preponderance of definitions from the medical dictionaries cited.”

Requirement 11

The surrogacy arrangement is in writing and signed by the birth mother, the birth mother’s spouse and the applicant: section 22(2)(e)(v).

Requirement 12

The surrogacy arrangement is not a commercial surrogacy arrangement.  What is a commercial surrogacy arrangement is defined in section 10:
"commercial surrogacy arrangement" if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person—
(a)          agreeing to enter into or entering into the surrogacy arrangement; or
(b)          permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c)          consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.”
This provision was considered by Carew J in Rose [2018] FamCA 978.[8]  Mr Rose sought to register a US surrogacy order under section 70G of the Family Law Act and regulation 23 of the Family Law Regulations.  Carew J rejected that application.  Her Honour said:[9]

               “I would nevertheless decline to exercise my discretion in favour of registration of the C order because I am not satisfied the Agreement is not a commercial surrogacy.  This is of significance because in Queensland commercial surrogacy arrangements are prohibited, attracting penalties of up to three years imprisonment.  To register an order which recognises a commercial surrogacy would be contrary to public policy because it would give curial approval to something that is prohibited by law.”

As her Honour said, my submissions left open the prospect that the surrogacy agreement was of a commercial nature.  Her Honour went on to say at [52] – [55]:

“52.       The Agreement itself has as one of the headings ‘Reimbursements for Expenses and no Compensation to Gestational Carrier’.  However, that part of the Agreement provides that as the Gestational Carrier has no parental rights, any expenses or reimbursements to her do not constitute payment for transferring or surrendering parental rights.  I do not regard the heading of the limitation as determinative of the broader discretion.

53.          The Agreement goes on to provide for the payment of:

(a)         reasonable medical, legal, and ancillary costs and expenses;

(b)         fertility treatment costs and expenses not covered by insurance;

(c)         capped legal expenses for the negotiation of the agreement, ongoing legal advice and court filings to establish parental rights;

(d)         ancillary expenses for food and meals, housing expenses such as rent or mortgage expenses and utilities.  The ‘base amount’ is set out USD$26,000 and receipts are not required; and

(e)         actual lost wages.

54.       The Agreement imposes a duty of confidentiality on the parties as to its financial terms.

55.       It seems to me that the payment of rent, mortgage expenses and utility expenses fall into the category of a ‘payment, reward or other material benefit or advantage’ that is directly related to the entering into the Agreement.  Such payments do not fall within the definition of a birth’ mother’s surrogacy costs.  The explanatory notes to the Queensland legislation make it clear that the intention of the legislature was to bring Queensland into line with other States and Territories by decriminalising altruistic surrogacy arrangements while maintaining a prohibition on commercial surrogacy.  The application to register an overseas child order that may arise out of a prohibited commercial surrogacy arrangement is contrary to the clear intention of parliament.  There are no competing public policy considerations in this case such as the child being in need of protection.”

Section 11 sets out what are the birth mother’s surrogacy costs.  As her Honour made plain in Rose, whilst these provisions are wide, they are not unlimited:

“(1)        A
"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated with any of the following matters —
(a)        becoming or trying to become pregnant;
(b)        a pregnancy or a birth;
(c)        the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
(2)        Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs —
(a)          a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1) ;

Example: a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure
(b)          a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c)          a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d)          a reasonable cost of counselling associated with any of the matters mentioned in subsection (1) , including —

(i)                 he cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or

(ii)        the cost relating to the preparation of a surrogacy guidance report under section 32 ;

(e)          a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;

(f)            the value of the birth mother’s actual lost earnings because of leave taken —

(i)               for a period of not more than 2 months during which a birth happened or was expected to happen; or

(ii)      for any other period during the pregnancy when the birth mother was unable to work on medical grounds;
(g)        another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.
Example:
• travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
• travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court
(3)        In this section —
"legal cost" includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.
"medical cost" means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.”
Requirement 13

The birth mother and the birth mother’s spouse were at least 25 years when the surrogacy arrangement was made: section 22(2)(f).

Requirement 15

At the time of hearing of the application the applicants are resident in Queensland: section 22(2)(g). 

Requirement 16

The birth mother, the birth mother’s spouse (if any) and another birth parent (if any) and the applicant or joint applicants consent to the making of the parentage order at the time of the hearing: section 22(2)(h).

Requirement 17

A surrogacy guidance report under section 32 supports the making of the proposed order: section 22(2)(i).  Section 32 provides:
          “A surrogacy guidance report must be prepared by an independent and appropriately qualified counsellor and state the following matters—
          (a)     the reasons the counsellor is an independent and appropriately qualified counsellor;
          (b)     that, for the application, the counsellor interviewed the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant, or joint applicants, (the "relevant persons" );
          (c)     the date or dates of the interviews;
          (d)     the counsellor’s opinion formed as a result of the interviews relevant to the application for a parentage order including, for example, about the following matters—
                   (i)    each relevant person’s understanding of—
                             (A)     the social and psychological implications of the making of a parentage order on the child and relevant persons;
                             (B)     openness and honesty about the child’s birth parentage being for the wellbeing, and in the best interests, of the child;
                   (ii)   the care arrangements that the applicant, or joint applicants, have proposed for the child;
                   (iii)  whether the making of a parentage order would be for the wellbeing, and in the best interests, of the child.”
The surrogacy guidance report, after the surrogacy arrangement itself is the most important document before the court.  It is an assessment by an independent counsellor as to whether the making of a parentage order is in the best interests of the child and, conversely if the order is not made, what impact that may have on the child. 

It cannot be written by the pre-signing counsellor, but by another counsellor who has the relevant qualifications.  It is written much in the style of a family report, albeit in the order of 5-10 pages long.  This counsellor will have had the benefit of a copy of the surrogacy arrangement and the pre-signing counsellor’s report. 

There are two types of counsellors who can be engaged.  Both have to be appropriately qualified.  The counsellor who writes the surrogacy guidance report must also be independent.

The practice of surrogacy in Queensland will usually mean that both counsellors are independent.

Appropriately qualified is defined in section 19 as meaning:

“(a)      For a counsellor swearing an affidavit verifying a report prepared by the counsellor, a person who –

(i)                 is one of the following –

(A)        a member of the Australian and New Zealand Infertility Counsellors Association;

(B)        a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;

(C)       a psychologist who is a member of the Australian Psychological Society;

(D)       a social worker who is a member of the Australian Association of Social Workers; and

(ii)              has the experience, skills or knowledge appropriate to prepare the report; or

 (b)       For a medical practitioner swearing an affidavit mentioned in section 25(1)(j), a medical practitioner who has the qualifications, experience, skills or knowledge appropriate to prepare the report.”

In other words, they have to be a member of one of those organisations but also be an expert in their field.  Think Makita (Australia) Pty Ltd v. Sprowles [200] NSWCA 305.

If the counsellor is an ANZICA, it is imperative that they comply with the ANZICA surrogacy counselling guidelines.

Whichever profession they may be a member of, it is also imperative that they comply with the National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology and Clinical Practice and Research (2017).

Whilst compliance with both sets of guidelines is not mandatory in Queensland, it is in New South Wales and is likely to be shortly in South Australia and Victoria.  It would be wise to make sure that they comply.  Otherwise, how will the report (and your reputation) withstand scrutiny?

Independent is also defined in section 19:

               “For a counsellor in relation to an application for a parentage order in relation to a child, means the counsellor:

(a)              did not give counselling about the surrogacy arrangement to the birth mother, the birth mother’s spouse (if any) or an intended parent; and

(b)              is not, and has not been, directly connected with a medical practitioner who carried out a procedure that resulted in the birth of the child.

Example of direct connection –

            A counsellor is directly connected with a medical practitioner if the counsellor is engaged to give fertility counselling at the fertility clinic where the medical practitioner carried out a procedure that resulted in the birth of the child.”

When you receive any expert reports in your matter, which would be:

·         the pre-signing counselling report;
·         surrogacy guidance report;
·         report by the IVF specialist as to eligible woman and date of conception;
·         report of any other medical specialist which points to your client being the eligible woman;

Make sure that you have your critical brain on.  If there is something that doesn’t add up in the report, then ask and question. If you don’t, then the judge might of you.  Your clients may only have one shot at getting a parentage order made and want to make sure they get it right first time.

Seeing the baby

In one case I received the surrogacy guidance report which read fine except I saw no reference to seeing the baby.  I telephoned the counsellor who told me that my clients had a nanny and they hadn’t brought the baby in on the day because they didn’t want to wake the baby.

I said that I was duty bound to tell the court that the surrogacy guidance report had been completed without the report writer having seen the baby and therefore make an assessment of the baby’s health, attachments etc.  The outcome was fairly certain, namely that the court would adjourn the matter until that had occurred.  The counsellor said that this had never happened before.  Arrangements were then made for follow up interviews to occur with all parties, with the baby having been seen by the counsellor.

The final report was a very positive one.

Subsequently there was no difficulty in there being a parentage order made.

Requirement 18

The proposed order will be for the wellbeing, and in the best interests, of the child, both through childhood and for the rest of his or her life: section 22(2)(a), section 6(1).

Requirement 19

That the documents under section 25 have been filed: section 21(7), section 25(1).

15.        The documents that are required to be filed under section 25

The documents are these:

·         A copy of the child’s birth certificate.

·         A copy of the surrogacy arrangement.  Typically this will be exhibited to an affidavit of one or both intended parents.

·         An affidavit sworn by the application or joint applicants in support of the application.

·         An affidavit sworn by the birth mother.

·         An affidavit sworn by the birth mother’s spouse.

·         An affidavit sworn by another birth parent (if any).

·         An affidavit sworn by the lawyer who gave legal advice to the intended parent or parents.

·         An affidavit sworn by the lawyer who gave legal advice to the birth mother and the birth mother’s spouse (if any).

·         An affidavit by the pre-signing counsellor.

·         An affidavit by the author of the surrogacy guidance report.

·         For each applicant who is a woman, an affidavit from an appropriately qualified medical practitioner verifying a report prepared by the medical practitioner as to why the applicant is an eligible woman.  Even if neither applicant is a woman, that affidavit should also cover the issue of conception.

·         On the morning of court, a joint affidavit of the applicants confirming that the child resides with them and that they live in Queensland.

16.        The hearing

Hearings are before a Childrens Court judge, i.e. a District Court judge who has a dual commission.  They are not before a Childrens Court magistrate.

Typically the listing procedure is to contact the court and advise that a parentage order application has been made.  The court will then allocate a date before any material is filed.  The material is filed in one go.  Lengthy written submissions and a draft order are typically emailed to the associate two business days before the hearing.

On the morning of court, a short further affidavit of the applicants is tendered.

The babies come into court.  A typical court appearance will be the judge with two or three support staff, the solicitor for the applicants, the applicants, the baby, the solicitor for the surrogate and her partner and the surrogate and her partner.

Typically the orders are made on the first day following an appearance that lasts 5-10 minutes.  The hard work in the judge reading and accepting the basis of the application has occurred beforehand.  Typically, there will be several centimetres of material to read.  Our submissions are usually in the order of 20-30 pages, showing the court how there has been compliance with the Act.

The court has the ability to notify the Department of Child Safety, Youth and Women: section 38.  Section 39(2) makes plain:

               “On the making of the parentage order –

(a)              the child becomes the child of the intended parent, or intended parents, and the intended parent, or intended parents, become the parent, or parents, of the child; and

(b)              the child stops being the child of a birth parent and a birth parent stops being a parent of the child.”

The order has effect in relation to –

(a)          dispositions of property whether by will or otherwise; and
(b)          devolutions of property in relation to which a person dies intestate: section 40(1).

Section 40(2) provides:

               “…However, section 39 does not affect the operation of a small will or other instrument that distinguishes between children who were born as a result of a surrogacy arrangement (“surrogacy arrangement children”) and children other than surrogacy arrangement children.”

The hearing is not to be in public: section 51.  Typically other matters will be listed on the Childrens Court day.  Typically the lawyers in those other matters will be excluded whilst the parentage order application is heard, although I had one recently where they were allowed in the court and I think this was for the benefit of justice through transparency that they were able to see the process.

There is a greater restriction on the ability to access court records than there is under the Family Law Act, as set out under section 52. 

A person must not publish identifying material unless written consent to the publication has been given, for each identified person by –

(a)          for an identified person who is an adult – that person; or
(b)          for an identified person who is the child and under 18 years –
(i)                if the child is residing with the birth mother – the birth mother; or
(ii)              otherwise – the intended parent, or intended parents: section 53(2).

Publish means published to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication: section 53(3).

Identifying material is material that identifies or is likely to lead to the identification of, a person as:

(a)           a child born as a result of a surrogacy arrangement or a child of whom a court proceeding under this Act relates; or

(b)          a party to a surrogacy arrangement; or

(c)           a party to a court proceeding under this Act; or

(d)          a person who has consented to a surrogacy arrangement, or the making of a parentage order, is or was required: section 53(1).

The court rules that apply under section 59 are the Uniform Civil Procedure Rules unless there are specific rules of court for the Childrens Court: section 59.

17.        Discharge

An application for a discharge order can be made on the ground that:

·         the parentage order was obtained by fraud, duress or other improper means;

·         a consent required for the making of the parentage order was, in fact, not given or was given for payment, reward or other material benefit or advantage (other than the birth mother’s surrogacy costs) i.e. it was commercial surrogacy; or

·         there is an exceptional reason why the parentage order should be discharged: section 46(1).

18.        After the order

As soon as the order issues from the court, the intended parents are then the parents.  Typically a few days after the order is made, the sealed copy of the order will issue.  The Registry of Births, Deaths and Marriages has a form for parents to fill out.  That form is lodged with the orders.  The Registry of Births, Deaths and Marriages typically takes 3 working days on receipt of the form and orders to alter the birth register so that the intended parents are recognised on the birth register as the parents.

At that point, the intended parents apply for and pay for a new birth certificate for the child – and the legal process is completed.

Of course, that is only the beginning of the process for the child’s life.  It is important for all concerned that the best interests of the child are at the forefront of everyone’s mind all the way through the process.

Surrogacy at its best is a magical process, involving an extraordinary gift of humanity from one to another. 

19.        Surrogacy can go wrong

There are two Queensland cases which have been reported where surrogacy has gone wrong.  Re Evelyn [1998] FamCA 2379 was a traditional surrogacy in which Mr and Mrs Q lived in Queensland and Dr and Mrs S lived in South Australia.  Mrs S was the surrogate.  Her husband helped the pregnancy occur with the sperm of Mr Q.

At the time the parties entered into the arrangement, it was illegal both in Queensland and South Australia.  No-one had then received any legal advice nor had any counselling.  Within three weeks of the child being born, Mrs S went to Mr and Mrs Q’s house and took the child.

Ultimately the court held that the child was to live with Dr and Mrs S. 

Lamb & Shaw [2017] FamCA 769 was a gestational surrogacy arrangement in Far North Queensland that went wrong.  It was an arrangement under the Surrogacy Act. 

The child was not handed over.  The intended parents (who are the genetic parents) obtained orders in the Family Court that the child reside with them and have no contact with the surrogate 

The surrogate appealed.  In the first instance decision, Tree J found that on reading section 23 of the Status of Children Act, the intended father (the surrogate being single) was the father, albeit one with no rights or liability under section 23(4) of the Status of Children Act 1978.

The Full Court in dealing with the appeal found that there was a question in dispute which was whether or not the surrogate was in a de facto relationship at the time of the artificial conception procedure, because if she were, then the intended father was not a parent.  The matter was remitted back to Justice Tree. 

The surrogate admitted at the re-hearing that she had not been in a de facto relationship at the time of the artificial conception procedure.  I do not know if there has been a further appeal. 

The practice with birth certificates in Queensland where there is a single surrogate is not to name the intended father as a parent on the birth certificate before the making of the parentage order because of the likely difficulty with transfer of parentage. 

I have had several cases in which Childrens Court judges have not followed Justice Tree’s approach.

His Honour’s approach, with the greatest of respect, appears to be not consistent with other portions of the Status of Children Act where the same language is used about men who are sperm donors to a lesbian couple.  Given that Queensland and Australian law only recognises two parents those other provisions (ss19C(2), 19D(2) and 19E(4)) would seem to indicate that sperm donors to lesbian couples are not fathers and that Parliament’s intention was to be consistent across different sections of the Act.  We shall see.

Masson and Parsons

This case is not a surrogacy case but will be directly relevant to surrogacy.  While section 17 of the Surrogacy Act says that the presumptions under the Status of Children Act 1978 apply, of course if there is a finding that someone else is a parent under the Family Law Act, then that will make for a potentially tricky journey.  The Full Court in Bernieres and Dhopal [2017] FamCA 180 said that the intent of the Commonwealth was that the States legislate for surrogacy.

Mr Masson was a known sperm donor to the first Ms Parsons.  He is a gay man and she is a lesbian.  They agreed that they would co-parent a child together.  He supplied a quantity of sperm to her at home to enable her to engage in an at home insemination.

Ms Parsons became pregnant, resulting in the birth of a child.

Ms Parsons formed a relationship with another woman whom she later married, also called for the sake of the case Ms Parsons.  A second child (who was not the genetic child of Mr Masson) was born. 

Mr Masson successfully applied to the Family Court for an injunction to restrain the two Ms Parsons removing the children to New Zealand.

During the course of the trial, the question arose as to whether he was a parent.  The trial judge found that he was, following a line of authority from Groth and Banks [2013] FamCA 430.

Within 4 days of each other there were two cases decided by single judges of the Family Court at variance as to who was a parent under the Family Law Act.  In Groth and Banks, Cronin J held that the Family Law Act envisages ordinarily that there are two parents, that sections 60H and 60HB are all encompassing as to who are parents under the Family Law Act and therefore depending on the facts in each case, someone else may be a parent, notwithstanding status of children legislation that says that person is not a parent, such as from:

·         Intention;
·         Biology;
·         Parenting.

In Mason and Mason [2013] FamCA 424, Ryan J held on a preliminary basis that there was a uniform scheme of legislation between States and Territories Status of Children Acts and the Family Law Act as to who was a parent and unless one fell clearly within that legislative framework, then one was not a parent.

Without dealing with the Groth and Banks issue, the Full Court in Bernieres and Dhopal accepted the approach of Ryan J in Mason and Mason.

A different reconstituted Full Court in Parsons and Mason [2018] FamCAFC 115, took the same approach and said that there was a scheme between the State and Territory Status of Children legislation and the Family Law Act.  It found that Mr Masson was not a parent because he fell outside that scheme notwithstanding that:

·         He was the biological father;
·         He intended to be the father;
·         He had “parented” the child.

Mr Masson sought and obtained special leave to appeal to the High Court.  That hearing occurred just before Easter.  Three parties argued that in essence the Full Court got it wrong and that Mr Masson was a parent:

·         Mr Masson;
·         The Independent Children’s Lawyer;
·         The Attorney-General for the Commonwealth.

Two parties argued that the Full Court got it right:

·         Both Ms Parsons;
·         The Attorney-General for the State of Victoria.

The Attorney-General for the Commonwealth argued that there should not be a blanket rule but that each case should be decided on its own facts as to who was and who was not a parent within the meaning of the Family Law Act.  His argument was that, consistent with the approach taken in Groth and Banks, that the category of who was a parent was not limited by the Family Law Act and in fact to have a uniform definition of who is a parent under the Family Law Act meant that that Act was not subservient to State and Territory legislation but overrode that legislation.

By contrast, the State of Victoria argued that consistent with the history of enactments, there was a uniform scheme between the Family Law Act and the State and Territory Status of Children legislation and if someone missed out being a parent as a result, at least that provided some certainty. 

Judgment has been reserved.

Finally…

Surrogacy is a new area of law that is playing catch-up with the changes in society.  Taken with great care, a surrogacy arrangement should proceed smoothly and result in the making of a parentage order in the Childrens Court.  It should not be taken for granted or as a run of the mill type application.

The law in this area continues to evolve and dare I say will do so for a considerable period.  The old Chinese curse applies to us but particularly to our clients:

               “May you live in interesting times.”



Stephen Page
Page Provan
stephen@pageprovan.com.au
1 May 2019


[1] Stephen Page is a partner of Page Provan, family and fertility lawyers, Brisbane.  His first surrogacy case was in 1988.  Stephen was admitted in 1987 and has been an accredited family law specialist since 1996.  He is a Fellow of the International Academy of Family Lawyers, including being a member of the LGBT and Surrogacy/Parentage Project Committees.  He is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys and is also an international representative on the ART Committee of the American Bar Association.  He has spoken at conferences around the world and written extensively about surrogacy.
[2] American Bar Association Resolution 112B, February 2016 as to a proposed Hague Surrogacy Conference.  Stephen Page was the co-author and principal advocate of the resolution.
[3] S.8 does not apply if there is a single intended parent.  Instead, reliance would be on s.12 of the Australian Citizenship Act 2007 (Cth).
[4] At [55]
[5] A female to male trans person, who may have a uterus, and may therefore be capable of becoming pregnant.
[6] I acted for the surrogate and made submissions, accepted by her Honour, as to what was conception. 
[7] At [13]
[8] I acted for Mr Rose.
[9] At [48]

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