Friday, May 3, 2019

Managing will and estate issues with international surrogacy arrangements

Recent Family Court decisions have emphasised that an intended parent who undertakes overseas surrogacy is likely not a parent for family law and inheritance purposes in Australia. This means that estate planning needs to be extremely carefully done- in case the intended parents die.

In February I presented at webinar on this issue for the American Bar Association. Here is my paper:


WHERE THERE’S A WILL THERE’S A WAY: MINIMISING THE RISK OF INTERNATIONAL SURROGACY ARRANGEMENTS

By Stephen Page


Tuesday, 5 February 2019 at 2:00pm to 3:30pm ET



Introduction to the wonderful world of wills


After that alliterative entry, I want to illustrate some of the complexity for those who are international parents undergoing surrogacy journeys in the United States. One of the certainties of life, as Benjamin Franklin stated, is death. Intended parents may die after the surrogate is pregnant but before the child is born. They may die after the child is born, but before the child goes overseas. At the time of death, the intended parents may or may not be recognised as the parents of the child.

I am going to set out some suggested rules covering foreign, i.e., non-US resident clients, and then illustrate them. As I am an Australian lawyer, I will speak from an Australian perspective, about the potential problems for Australian intended parents, but the rules should be of general application.


Rule 1- The point of surrogacy estate planning is to ensure the child is not left a penniless orphan.

It should not be assumed that:

·         The intended parents have wills in place.
·         The wills are recognised at law in the place where the child is born. If parties live in Sydney, their wills may not be recognised in the US State, for some reason or other.
·         The intended parents will be recognised as parents of the child either in the jurisdiction of the child’s birth or in their home country. Recognition may depend on timing, i.e., time of death compared to where recognition of parentage is in the legal process, and place.
·         The intended parents have the ability to appoint a testamentary guardian under the laws of their home.

Rule 2 – Different rules apply to parentage in different places.

Because of the different rules around the globe about whether or not surrogacy is recognised, intended parents who are recognised in the US jurisdiction as the parents, may not be recognised as the parents back home.

Rule 3- Someone might be recognised as a parent for some purposes, but not others, such as succession law.

As seen in Australia, which I will illustrate by example below, someone may be recognised as a parent for the purposes of citizenship, but may not be recognised as a parent for the purposes of succession.

Rule 4- Great care ought to be taken with the drafting of any wills.

At law school I was taught that because of the removal of the distinction between legitimate and illegitimate children, they are just someone’s children. Therefore a will should be drafted along the lines of: “To any child of mine, and if more than one in equal shares.” If the child is not the lawful child of the testator under succession law, the child has just been disinherited.

It is better practice, I suggest, to specify the surrogacy journey prior to the birth of the child, either just in the will, or an accompanying document executed by the testator. We typically draft a will and an accompanying statutory declaration. This in turn raises issues if the testator appears to have committed a criminal offence back home in entering into the surrogacy agreement. You may be creating documents that evidence the commission by your client of that criminal offence.

Once the child is born, I suggest that wills be updated and that the child be specifically named in the will. Whether the parent/child legal relationship is recognised is beside the point: who the testator wants as a beneficiary is set out plainly.

Clients need to be warned that this means if they plan to have another child or children then the wills need to be updated- or those children might miss out.

Rule 5- Consider obtaining and preserving any DNA

In some places who is a parent is determined by DNA. Intended parents are not always the genetic parents, but often are, or at least one of them is. They may have provided gametes for the creation of embryos. There may be a clear pathway to show that they are the genetic parents:

·         The child’s DNA.
·         Any sperm, eggs or embryos that remain in storage.
·         Preservation of any DNA following their deaths, such as on slides.
I suggest that this is a matter that might need to be raised with intended parents.

Rule 6 - There should always be a US will


If the child is being born in the US via surrogacy to intended parents who live overseas, there should always be a US will executed by each intended parent. The child on being born will be the subject of the laws of a US jurisdiction. The intended parents may or may not be recognised as the parents when the child is born.

Running example- Bill and Ben

I will give you the example of Bill and Ben who are a gay couple living in Brisbane.  They are very successful florists.  Bill is an Australian citizen.  Ben is a New Zealand citizen who is entitled as of right to live in Australia.  Bill and Ben approached the KidzNow! surrogacy agency because they want to do two surrogacy journeys side by side – one in which Bill is the biological father and the other in which Ben is the biological father.

Bill and Ben enter into parallel journeys.  They have a surrogate called Carol in California and Marlene in Minnesota.

Rule 7- The US will may not apply outside the US.

As will be seen below, the US is not a party to two international conventions dealing with wills. The US will may or may not be recognised overseas. The child may be outside the US. The intended parent may have died outside the US. The only property of the estate might be outside the US. Arcane conflicts of law rules might render the US will not to be recognised outside the US.

Rule 8 – Have identical or at least compatible wills in each place


Planning should assume that the US will is not recognised overseas, so that the parties execute consistent wills in different places.

Some years ago, Rich Vaughn and I had mutual clients who were an Australian couple undergoing surrogacy in the United States.  My firm had prepared Australian wills for our clients, nominating someone as a guardian.  Leave aside whether that nomination was valid for the moment.  Rich prepared US wills for them, including the appointment of guardians.  By a chance conversation four working days before Christmas, my associate discovered that the name of the guardian in the wills that Rich was preparing was different to the name of the guardian that had been in the Wills that we had prepared.  In essence, the couple had decided on a guardian (who from recollection was a family friend) and changed it to a family member. 

As you can imagine, there was then great agitation for a few days between the two law offices and the clients to make sure that the clients’ instructions and documents were the same, i.e. who was to be the guardian in each case.  New wills were executed both compliant with US and Australian law that were consistent with each other.

Rule 9 – The US lawyer and foreign lawyer ought to collaborate together about the form of and timing of wills.

A typical feature of a will is that it revokes all prior wills. This may occur by operation of law, or under the terms of the will. Whether a foreign will, e.g., an Australian will, revokes a previously signed US will depends on:

  • When they were executed.
  • The terms of each will. For example, the foreign (or US) will might say that it is being executed in contemplation of another will being executed by the testator somewhere else, and the other will has primacy.
  • Relevant law that applies.

An example of statute law that illustrates the point is section 13 of the Succession Act 1981 (Qld):
“13 How a will may be revoked
A will or part of a will may be revoked only—
(a)        under section 14, 14A, 15, 15A or 15B; or
(b)        by a will or other instrument made under an order under section 19 or 21; or
(c)        by a later will; or
(d)        by a document that —

(i)                 declares an intention to revoke the will or part; and
(ii)        is executed in the way in which a will is required to be executed under this part; or
(e)        by the testator, or someone in the testator’s presence and at the testator’s direction —

(i)                 burning, tearing or otherwise destroying the will with the intention of the testator to revoke it; or
(ii)              writing on the will, or dealing with the will, in a way that satisfies the court, from the state of the will, that the testator intended to revoke it.”

Sections 14 to 15B deal with the effect of marriage, civil partnership, divorce, annulment, and the end of a civil partnership or de facto relationship.

The point is that every jurisdiction is different. In a federal system like Australia there will be different rules from State to State.

Rule 10- Be aware of the international conventions.

There are two international instruments concerning international wills, neither of which is in force in the US.  The first is the 1961 Hague Convention. The second is the 1973 UNIDROIT Convention.

1961 Hague Convention on the conflicts of laws relating to the form of testamentary dispositions

The title of the Convention speaks for itself.  The current status table of the Convention is here[1]:

Contracting Parties to this Convention that are also Members of the HCCH (i.e., the Organisation) are in bold; Contracting Parties that are not Members of the HCCH are in italics.
Contracting Party
S 1
R/A/S2
Type3
EIF4
EXT5
Auth6
Res/D/N/DC7
Albania

25-X-2013
A
24-XII-2013


Res
Antigua and Barbuda

1-V-1985
Su



Armenia

1-III-2007
A
30-IV-2007


Res
Australia

22-IX-1986
A
21-XI-1986


D
Austria
5-X-1961
28-X-1963
R
5-I-1964


Res
Belgium
10-X-1968
20-X-1971
R
19-XII-1971


Res
Bosnia and Herzegovina

23-VIII-1993
6-III-1992



Botswana

18-XI-1968
A
17-I-1969


Res
Brunei Darussalam

10-V-1988
A



China, People's Republic of





N
Croatia

23-IV-1993
8-X-1991



Denmark
5-X-1961
21-VII-1976
R
19-IX-1976



Estonia

13-V-1998
A
12-VII-1998


Res
Eswatini (formerly Swaziland)

23-XI-1970
A


Res
Fiji

28-VI-1971
Su


Res
Finland
13-III-1962
24-VI-1976
R
23-VIII-1976



Former Yugoslav Republic of Macedonia

20-IX-1993
17-XI-1991



France
9-X-1961
20-IX-1967
R
19-XI-1967


Germany
5-X-1961
2-XI-1965
R



Greece
5-X-1961
3-VI-1983
R
2-VIII-1983



Grenada

20-V-1985
Su



Ireland

3-VIII-1967
A
2-X-1967



Israel

11-XI-1977
A
10-I-1978



Italy
15-XII-1961






Japan
30-I-1964
3-VI-1964
R
2-VIII-1964



Lesotho

1-VI-1977
4-X-1966



Luxembourg
5-II-1968
7-XII-1978
R
5-II-1979


Res
Mauritius

24-VIII-1970
Su



Montenegro

1-III-2007
3-VI-2006



Netherlands
17-III-1980
2-VI-1982
R
1-VIII-1982
1

Res
Norway
5-X-1961
2-XI-1972
R
1-I-1973



Poland

3-IX-1969
A
2-XI-1969


Portugal
29-IX-1967






Republic of Moldova

11-VIII-2011
A
10-X-2011


Res
Serbia

26-IV-2001
27-IV-1992


D
Slovenia

8-VI-1992
25-VI-1991



South Africa

5-X-1970
A
4-XII-1970


Res
Spain
21-X-1976
11-IV-1988
R
10-VI-1988



Sweden
5-X-1961
9-VII-1976
R
7-IX-1976



Switzerland
9-IX-1970
18-VIII-1971
R
17-X-1971


Res
Tonga

10-VIII-1978
Su


Res
Turkey

23-VIII-1983
A
22-X-1983


Res
Ukraine

15-III-2011
A
14-V-2011


Res
United Kingdom of Great Britain and Northern Ireland
13-II-1962
6-XI-1963
R
5-I-1964
10


1)         S = Signature
2)         R/A/Su = Ratification, Accession or Succession
3)         Type = R: Ratification;
A:        Accession;
A*:      Accession giving rise to an acceptance procedure; click on A* for details of acceptances of the accession;
C:        Continuation;
Su:       Succession;
Den:    Denunciation;
4)         EIF = Entry into force
5)         EXT = Extensions of application
6)         Authorities per Convention = Designation of Authorities
7)         Res/D/N/DC = Reservations, declarations, notifications or depositary communications

Australia wanted to make sure that the Convention applied everywhere under Australian authority.  The note beside Australia says that the Convention extends to the Australian States and mainland territories, and to the Coral Sea Islands Territory, the Territory of Heard Island and McDonald Islands, and the Australian Antarctic Territory.  Therefore the Convention however does not apply to Norfolk Island or Cocos (Keeling) Islands.

As can be seen from the status table, the Convention does not apply in the United States. 

Article 1 provides:

            “A testamentary disposition shall be valid as regards form if its form complies with the internal law:

(a)              of the place where the testator made it, or

(b)              of a nationality possessed by the testator, even at the time when he made the disposition, or at the time of his death, or

(c)               of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or

(d)              of a place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or

(e)               so far as the immovables are concerned, the place where they are situated.

For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.

The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.”

Article 6 provides:

            “The application of the rules of conflicts laid down in the present Convention shall be independent of any requirement of reciprocity.

            The Convention shall be applied even if the nationality of the persons involved or the law to be applied by virtue of the foregoing Articles is not that of a Contracting State.”

Therefore, even though the US is not a party to the Convention, if the form of the will complies with the Convention, the will might be recognised in a Convention country, if the Convention country has taken up the terms of the Convention as part of its domestic law.

Article 9 provides:

            “Each Contracting State may reserve the right, in derogation of the third paragraph of Article 1, to determine in accordance with the lex fori the place where the testator had his domicile.”

Or in other words- warning, warning, check the status table carefully, and check for the individual country to see if that country has made a reservation.

Article 11 provides:

            “Each Contracting State may reserve the right not to recognise, by virtue of provisions of its own law relating thereto, forms of testamentary dispositions made abroad when the following conditions are fulfilled:

(a)         The testamentary disposition is valid as to form by reason only of a law solely applicable because of the place where the testator made his disposition,

(b)         The testator possessed the nationality of the State making the reservation;

(c)          The testator was domiciled in the said State or had his habitual residence there, and

(d)         The testator died in a State other than that in which he had made his disposition. 

The reservation shall be effective only as to the property situated in the State making the reservation.”

One may think from reading Article 6 that if Bill and Ben had made wills in the United States that those wills would be recognised automatically in Australia.

The first part of the Convention, i.e. the form of the will complies with the internal law of the place where the testator made it, is the obvious one.  If the will complies with the law of California (or for that matter the law of Minnesota) but has not complied with the law of Queensland, but was signed in Brisbane (the capital of Queensland) then on the face of it, it won’t have been made in California and will not be compliant with Article 1.

Although Australia has signed the Convention, there is no Australian federal  law enacting the 1961 Hague Convention.  Instead, there is a scheme of law in the eight States and Territories recognising Wills made under foreign law.  The provisions recognised in the 1961 Hague Convention (going clockwise around Australia):

State/Territory
Law
Queensland
Succession Act 1981
New South Wales
Succession Act 2006
Victoria
Wills Act 1997
ACT
Wills Act 1968
Tasmania
Wills Act 2008
South Australia
Wills Act 1936
Western Australia
Wills Act 1970
Northern Territory
Wills Act

The provisions of the Queensland Act are given as an example.  They are referred to in Division 6 of Part 2: Wills with a foreign connection.  Section 33T provides:

“(1)     A will is taken to be properly executed if its execution is in accordance with the internal law in force in the place —

(a)        where it was executed; or

(b)        that was the testator’s domicile or habitual residence, either at the time the will was executed or at the time of the testator’s death; or

(c)        of which the testator was a national, either at the time the will was executed or at the time of the testator’s death.

  (2)      The following wills are also taken to be properly executed —

(a)        a will executed on board a vessel or aircraft and in accordance with the internal law in force in the place with which the vessel or aircraft was most closely connected having regard to its registration and other relevant circumstances;

(b)        a will, to the extent it disposes of immovable property, executed in accordance with the internal law in force in the place where the property is situated;

(c)        a will, to the extent it exercises a power of appointment, executed in accordance with the law governing the essential validity of the power;

(d)        a will to the extent it revokes —

(i)                 a will, or a provision of a will, that has been executed under this part; or

(ii)              a will, or a provision of a will, that is taken by this section to be properly executed;

if the later will has been executed in accordance with a law under which the earlier will or provision would be taken to be validly executed.

  (3)      A will to which this section applies is not improperly executed to the extent it exercises a power of appointment only because it has not been executed in the particular way or with the particular solemnity required by the instrument creating the power.

Example: A will to which this section applies exercises a power of appointment. The instrument creating the power requires the instrument exercising the power to be witnessed by a notary public. The will, to the extent it exercises the power, is not improperly executed only because the will is not witnessed by a notary public.”

Section 33U relates to federations, such as the United States.  It provides:

“(1)     This section applies if —

(a)        the internal law of a place must be applied under section 33T ; and

(b)        there is more than 1 system of internal law, in force in the place, relating to the formal validity of wills.

  (2)      The system of internal law to be applied under section 33T is decided as follows —

(a)        if there is a rule in force throughout the place that states which system applies to the will, the rule must be followed;

(b)        otherwise, the system is that with which the testator was most closely connected —

(i)                 if the matter is to be decided by reference to circumstances prevailing at the testator’s death—at the time of the testator’s death; or

(ii)              otherwise —at the time the will was executed.”

Section 33V provides:

“(1)     In deciding, for the purpose of section 33T, whether a will has been executed in accordance with a particular law, regard must be had to the formal requirements of the particular law at the time the will was executed.

  (2)      However, regard may be had to a later change of the particular law affecting wills executed at the time the relevant will was executed, if the change enables the relevant will to be treated as properly executed.”

Section 33W provides:

“(1)     This section applies if a particular law of a place outside Queensland is to be applied to a will, whether or not for the purpose of section 33T.

  (2)      The following requirements of the particular law are taken to be formal requirements only —

(a)        a requirement that special formalities be complied with by particular testators;

(b)        a requirement that the witnesses to the execution of a will have particular qualifications.

  (3)      Subsection (2) applies despite any contrary rule of the particular law.”

Appointment of a testamentary guardian under a Hague recognised Will


In my view, it is essential, if available, that Australian residents execute wills in the United States that appoint testamentary guardians for their children, both before and after they are recognised as the parents.

In the case of Bill and Ben for their California surrogacy journey, this will mean that as soon as the child is born that they do so, as they will obtain a pre-birth order in California. 

For their child in Minnesota, they will need to do so after the post birth orders are made.

Why it is important that they execute wills in the United States after they are recognised as parents in the US is because it is likely by virtue of the Hague Convention that the will will be recognised in Australia.  The appointment of a testamentary guardian will therefore likely be recognised in Australia for a US will, whereas an identical Will executed in Australia may not recognise the appointment of a testamentary guardian.

Who can appoint as a testamentary guardian in Australia?


Every State and Territory has passed laws enabling the appointment of testamentary guardians.  The capacity to appoint a testamentary guardian under a will under the law of that State or Territory varies State by State.  This must be seen in the context of whether someone is recognised as a parent under Australian law. 

Who is a parent?


While someone may be a parent under Australian law for the purposes of citizenship, they may not be a parent for the purposes under Federal legislation, the Family Law Act 1975 (Cth) and State and Territory parentage presumption laws, Status of Children Acts.

In the case of Bill and Ben undertaking a pre-birth order in California, it is unlikely that they will be recognised under the Family Law Act 1975 (Cth) as parents, although they might be recognised as parents for other purposes, such as Australian citizenship. Australian federal law does not have a consistent definition of who is a parent.

Why it is unlikely that they would be parents under the Family Law Act (and therefore fort inheritance purposes) is because, following the approach of the Full Court of the Family Court of Australia decision of Bernieres and Dhopal [2017] FamCAFC 180, Bill and Ben were not in compliance with Queensland law in undertaking surrogacy.  It doesn’t matter (as happened in Bernieres and Dhopal) that what the intended parents were doing was legal.  They were not compliant in being recognised as parents through surrogacy under Queensland law. To be compliant, amongst other things:

·         That both sides prior to entering into the surrogacy arrangement has independent legal advice from an Australian legal practitioner[2].

·         That prior to entering into the arrangement the parties had counselling from an appropriately qualified counsellor, i.e., an Australian qualified counsellor[3].

·         That the surrogacy arrangement was not commercial, as defined under Queensland legislation[4].

·         That the surrogacy arrangement was in and of Queensland[5]- which of course it was not.

In Bernieres and Dhopal, Mr and Mrs Bernieres lived in Victoria. They underwent surrogacy in India, using Mr Berneieres’ sperm and egg from a donor. It was legal in Victoria for them to do so. The child was conceived and born, relinquished, and obtained Australian citizenship in India. Mr Bernieres at the least was recognised as a parent for the purposes of the Australian Citizenship Act 2007 (Cth).

On coming home, Mr and Mrs Bernieres applied to the Family Court for a declaration that they were the child’s parents. Because they could not obtain a substitute parentage order in Victoria (amongst other reasons because Victoria requires the ART to occur there), they were not recognised as the child’s parents in Victoria.

It is likely that there are several thousand Australia children who do not have a legal parent/child relationship as a result of the decision in Bernieres and Dhopal. The defect in the legislation was identified in a government report back in 2013, but it has not been fixed.

Reliance has to be had on State or Territory law as to who is a parent.  The general view under Status of Children legislation is that in accordance with mater semper certa est (the mother is always certain) then the surrogate will be recognised as the parent and her husband or partner will be recognised as the other parent. 

In Lamb & Shaw [2018] FamCA 629, the intended parents, a Queensland couple, were undertaking surrogacy with a single surrogate. The surrogacy arrangement fell apart.  Queensland and the Northern Territory have unique legislation (as part of the national Status of Children Acts scheme) that provide that the man who produced the semen “has no rights or liabilities in relation to any child born as a result of the pregnancy happening because of the use of the semen unless, at any time, he becomes the husband of the child’s mother”.  In Lamb & Shaw (which may yet be subject to appeal as it has been subject to a previous appeal) the intended father who was the genetic father was found therefore to be the father of the child, albeit one who has no rights or liabilities. 

Elsewhere in Australia, the man would not be recognised as a parent.

This is seen in a sperm donor case, Parsons v. Masson [2018] FamCAFC 115, where a single man who entered into a co-parenting arrangement with a single woman, who were New South Wales residents, and was the biological father, had intended to parent and had parented the child, was found not to be a parent by the Full Court of the Family Court of Australia.  Legislative parentage presumptions reign supreme: biology, intention or parenting the child were irrelevant.  Mr Masson has sought special leave to appeal to the High Court of Australia (our equivalent of the US Supreme Court) so it will be interesting to see whether that approach remains in place. That application will be heard I understand in February or March.

Back to Bill and Ben

It seems reasonably clear that without recognition of the Californian order, Australian intended parents undertaking surrogacy in California will not be recognised as parents, albeit in some circumstances the biological father might for residents of Queensland and the Northern Territory be recognised as fathers albeit with no rights or responsibilities.

By contrast to California, Minnesota has a post-birth process. It is then likely that once those Minnesota orders were made post birth, they would both be recognised as parents under Australian law for family law inheritance purposes. 

The process in Minnesota has three stages:

·         At birth the surrogate and her husband are recognised as the parents, including on the birth certificate.

·         An order is then made declaring the biological father, in this case Ben, as a parent and terminating the parental relationship of the surrogate and her husband.  A second birth certificate then issues naming Ben as the only parent.

·         A second parent adoption order is then made in favour of Bill naming him as the other parent.  This then means that a third birth certificate issues in which both Bill and Ben are named as the parents.

Under Australian State law, the adoption will not be recognised, but it would be recognised under Australian federal law. The effect of the Adoption Act 2009 (Qld) is that the adoption is not recognised. This is because the adoption occurred in a country, the US, that is a party to the 1993 Hague Intercountry Adoption Convention, but it is not a Hague compliant adoption.  Therefore, by virtue of the Status of Children Act 1978 (Qld), ordinarily the surrogate and her husband will be recognised as the parents under Queensland law.

If there is a conflict between State and Federal laws, then the Commonwealth Constitution says that the Commonwealth law prevails over the State law to the extent of the inconsistency.

Under the Family Law Act, each of a child’s parents have parental responsibility.  The relevant definition of parent, child and adopted means that Bill as the adoptive parent is a parent under the Family Law Act.  It is unclear if Ben, despite being the genetic father would also be a parent.

Registration of US surrogacy orders


On three occasions US surrogacy orders have been registered in Australia.[6] The effect of registration of a US surrogacy order that says that someone is a parent means that someone is a parent for all purposes under Australian law.

In two subsequent cases, another judge has refused to register, in part because the relevant law in Australia makes the public policy against commercial surrogacy and she was of the view that the surrogacy arrangement was either commercial surrogacy or she could not be satisfied it was not commercial surrogacy.[7]

Currently there is an unresolved contested matter[8] as to whether or not a US surrogacy order should be registered in Australia. 

The US will’s appointment of a guardian


The appointment of a testamentary guardian under an Australian will for someone who has undertaken surrogacy in the US may or may not be valid.  In Queensland, the appointment is likely to be valid.  Section 61C of the Succession Act 1981 (Qld) provides:

“(1)     A parent or guardian of a child may, by a will, appoint a person as a guardian of the child.

  (2)      The appointment is of no effect if the appointor is not a parent or guardian of the child immediately before the appointor’s death.”

Section 61A defines child, guardian and parent:

            “Child means an individual under 18 years who is not, and has never been, married.

            Guardian of a child does not include a person who has guardianship of the child, under another Act, in the person’s capacity as the Chief Executive of a Department of Government of Commonwealth or a State or as a Minister of the Commonwealth or a State.

            Parent, of a child –

(a)                   includes:

(i)             for an Aboriginal child – a person who, under Aboriginal tradition, is regarded as the parent of the child; and

(ii)          for a Torres Strait Islander child – a person who, under Island custom, is regarded as a parent of the child; but

(b)                   does not include a parent whose parental responsibility for the child has been entered by:

(i)                 a decision or order of the federal court or a court of a state; or
(ii)              a decision or order of another court that has effect in Queensland.

Testamentary guardian, of a child means a person who is a guardian of the child under appointment by a Will.”

Because there is not a definitive definition of parent, it is possible that someone who is not otherwise recognised as a parent under Queensland law who executed a will in Queensland may be a parent for the purposes of appointing a testamentary guardian.  It may be therefore that both Bill and Ben by living in Queensland would be recognised as parents.

The US will, if recognised under the 1961 Hague Convention, might resolve the issue. The will by being recognised in Queensland, may enable the appointment of a testamentary guardian- an appointment that if made under a Queensland will might not be recognised in Queensland.

By contrast - if Bill and Ben lived in Victoria


If Bill and Ben lived in Victoria:

1.      Subject to the ability of the Supreme Court of Victoria to register the Californian order (assuming it is not registered) then it is unlikely that either of them will be parents.  Section 135 of the Marriage Act 1958 (Vic) provides sub-paragraphs (3) and (4):

“(3)      The father of a minor may by deed or will appoint any person to be guardian of the minor after his death.

  (4)       The mother of a minor may be deed or will appoint any person to be guardian of the minor after her death.”

In accordance with the decision in Bernieres and Dhopal [2017] FamCAFC 180, if Bill and Ben are not parents under the Family Law Act they are also not parents under the Status of Children Act 1974 (Vic) and therefore cannot validly appoint a testamentary guardian as neither is the father. I am not concerned that the legislation does not explicitly recognise two men or women as parents, due to other legislation that enables two women to be recognised as parents from ART and two men (or women) to be recognised as parents from surrogacy[9].

2.      If Bill and Ben underwent surrogacy in Minnesota then, under Victorian law following a similar pathway to the law in Queensland, Ben would be recognised by virtue of the Minnesota adoption order, and the Family Law Act 1975 (Cth) as the father and could appoint a testamentary guardian, whereas Bill may not.

1973 UNIDROIT Wills Convention


The UNIDROIT Convention providing a Uniform Law on the Form of an International Will 1973 provides for the recognition of international wills.  The US Government is the relevant depositary.  Both the US and UK have signed the Convention but it is not in force.  Australia has signed the Convention and it is in force, again under State and Territory laws, not Commonwealth laws.  The status table is here:

State
Signature

RT/AS
EIF
D
Australia
-
AS
10.09.2014
10.03.2015
-
Belgium
17.05.1974
RT
21.04.1983
21.10.1983
-
Bosnia-Herzegovina*
-
AS
15.08.1994
15.08.1994
-
Canada
-
AS
24.01.1977
-
D: Art. XIV
Croatia*
-
AS
18.05.1994
18.05.1994
-
Cyprus
-
AS
19.10.1982
19.04.1983
-
Ecuador
26.07.1974
RT
03.04.1979
03.10.1979
D
France
29.11.1974
RT
01.06.1994
01.12.1994
-
Holy See
02.11.1973
-
-
-
-
Iran
27.10.1973
-
-
-
-
Italy
-
AS
16.05.1991
16.11.1991
D: Arts, I, II, III
Laos
30.10.1973
-
-
-
-
Libya
-
AS
04.08.1977
09.02.1978
-
Nigeria
-
AS
19.05.1975
09.02.1978
-
Portugal
-
AS
19.11.1975
09.02.1978
-
Russian Federation
17.12.1974
-
-
-
D: Art XIII
Sierra Leone
27.10.1973
-
-
-
-
Slovenia
-
AS
20.08.1992
20.08.1992
-
United Kingdom
10.10.1974
-
-
-
-
United States of America
27.10.1973
-
-
-
-

*          Dates of notification of succession to the Convention by Bosnia-Herzegovina, Croatia and Slovenia.  The former Socialist Federal Republic of Yugoslavia deposited an instrument of access to the Convention on 9 August 1977.

Notes:
            The Republic of China signed the Convention on October 27, 1973.  Effective January, 1, 1979, the United States recognized the People’s Republic of China as the sole legal government of China.

            The Czechoslovak Socialist Republic (Czechoslovak) signed the Convention on December 30, 1974.  On December 31, 1992, at midnight, Czechoslovak ceased to exist and was succeeded by two separate and independent States, the Czech Republic and the Slovak Republic.

The legislation in Australia that gives effect to international Wills is as follows (going clockwise around the country):

State/Territory
Law
Queensland
Succession Act 1981
New South Wales
Succession Act 2006
Victoria
Wills Act 1997
ACT
Wills Act 1968
Tasmania
Wills Act 2008
South Australia
Wills Act 1936
Western Australia
Wills Act 1970
Northern Territory
Wills Act

The provisions of the Succession Act 1981 (Qld) are typical: section 33YA provides:

“In this division —

"convention" means the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington on 26 October 1973.

"international will" means a will made in accordance with the requirements of the annex to the convention.”

Section 33YB provides:

“(1)     The annex to the convention has the force of law in this jurisdiction.
  (2)      A copy of the annex to the convention is set out in schedule 3.”

Section 33YC provides:

“(1)     In this division, the following persons are authorised to act in connection with an international will —

(a)        an Australian legal practitioner;

(b)        a public notary of a State;

(c)        a person authorised to act in connection with an international will under a law of a convention country.

  (2)      In this section —

"Australian legal practitioner" see the Legal Profession Act 2007, section 6

"convention country" means a country, other than Australia and its Territories, that is a party to the convention.”

I note that for what it is worth, I am an Australian legal practitioner.  Section 33YD provides:

“The conditions for acting as a witness to an international will are governed by the law of this jurisdiction.
Example: For the relevant provisions of this Act, see sections 10 (How a will must be executed) and 11 (When an interested witness may benefit from a disposition).”

Section 33YE provides:

            To avoid doubt, it is declared that the provisions of this Act that apply to wills extend to international wills.”

The point of the Convention is to provide a uniform law on the form of an international will and therefore dispense to some extent and the words of the Convention with the search for the applicable law.

In addition to any other witnesses, Article V provides:

“(1)     The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated.  The same rule shall apply as regards the interpreter who is called upon to act.

  (2)      Nonetheless no-one shall be disqualified to act as a witness of an international will solely because he is an alien.”

Article 6 provides, relevantly:

“(1)     The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.”

The form of the Convention as to uniform law is contained in the annex, which in turn in Australia is either referred to or attached as part of the legislation of each State and Territory. Article 1 provides:

“(1)     A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provision set out in Articles 2 to 5 hereinafter.  The invalidity of the will as an international will shall not affect its former validity as a will of another kind.”

I have attached the annex to the end of my paper.  The key witnesses are in Article 4:

“(1)     The testator shall declare in the presence of two witnesses and of a person authorised to act in connection with international wills that the document is his will and that he knows the contents thereof.”

It would seem that wills executed in the United States cannot be international wills under the Convention, at least in the Australian context, because no-one is authorised in the United States to be an authorised person.

Evidently, the sooner that the United States gives effect to the Convention as domestic law, the better.

Dying intestate


In Australia, if there is no will and the intended parent dies intestate, there are strict rules, subject to family provision claims, as to who is to inherit.  The result is that the child may be left as a penniless orphan.

Non-estate property


Some property will fall outside the estate.  For example, if one of the parties dies and the other does not, real estate may transfer to them automatically under a joint tenancy.

A life insurance policy may determine who is the beneficiary.

In Australia we have extensive retirement savings accounts, called superannuation.  There are statutory rules about who is and who is not a beneficiary. These are not ordinarily part of the estate.

Intended parents should check carefully their life insurance and superannuation to make sure that the child is able to be protected. 

Citizenship?


The child being born in the United States will be an American citizen. 

It is not necessary under the Australian Citizenship Act to have a genetic link between parent and child in establishing Australian citizenship for a child born through surrogacy overseas.  If it can be established at the time of birth that the child had an Australian citizen parent, then the child will remain eligible to obtain Australian citizenship.  Parentage for the purposes of the Act is determined by who is socially seen as a parent.  This may be established by:

  • DNA test;
  • A Court order determining parentage in the United States;
  • An intention to become a parent, for example by way of sending emails, social media posts or the terms of the gestational carrier agreement.

Takeaway messages


1.      Sooner or later an intended parent is going to die during the course of the surrogacy journey.

2.      Even though the US is not a party to the 1961 Hague Convention, it is wise before and after recognition of the intended parents as parents of the child that a US will is executed, naming the child as a beneficiary and appointing a testamentary guardian for the child.

3.      That will might be recognised in Australia even if a similar will for the appointment of a testamentary guardian in Australia is not recognised.

4.      There has been insufficient estate planning to date (at least from my experience) to cover intended parents undertaking international surrogacy journeys. 

5.      There should be close liaison between the US and foreign lawyers about the terms of wills to make sure above all that the child is protected.

6.      As always with ART law, the law is uncertain, unclear, new and developing with potentially uncertain outcomes.

7.      Lawyers should at all times have adequate professional indemnity insurance.

Stephen Page
Page Provan
family and fertility lawyers
Brisbane Australia

18 January 2019



[2] Surrogacy Act 2010 (Qld), s.22(2)(e)(i).
[3] Surrogacy Act 2010 (Qld), ss.19, 22(2)(e)(ii).
[4] Surrogacy Act 2010 (Qld), ss.10, 56, 57.
[5] Acts Interpretation Act 1954 (Qld), s.35.
[6] Re Halvard [2016] FamCA 1051, Re Grosvenor [2017] FamCA 366, Sigley and Sigley [2018] FamCA 3
[7] Rose [2018] FamCA 978 and unreported 2018
[8] In which my firm acts for one of the parties.
[9] Assisted Reproductive Treatment Act 2008 (Vic)

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