Tuesday, 7 April 2015

Surrogacy debate: Whose rights are we concenred with?

The Chief Justice of the Family Court of Australia, Diana Bryant, will be the keynote speaker on 17 April in Brisbane hosted by the Australian Association of Women Judges, on the topic: Surrogacy: whose rights are we concerned with?

Her Honour will deliver an address, followed by a panel discussion. The panellists will be her Honour, Professor Andreas Schloenhardt from the University of Queensland and me.The panel will be moderated by Justice Roslyn Atkinson from the Supreme Court of Queensland. It promises to be a lively evening!

Chief Justice Bryant has previously decried human trafficking in surrogacy. She has also called for the enforcement or scrapping of laws that criminalise intended parents undertaking surrogacy overseas. Her Honour recently proposed that Australia needed to act quickly, and unilaterally, to set in place certain criteria before kids can move to Australia.

Professor Schloenhardt is an expert as to human trafficking, writing extensively on the topic.

Details of the event:

Date: Friday 17 April 2015

Time: 5.30pm to 7pm

Place: Banco Court, Supreme Court of Queensland, George Street, Brisbane

Cost: FREE, all welcome

RSVP: Kelly Morseu (07) 3247 9214, email: Kelly.Morseu@justice.qld.gov.au

Wednesday, 25 March 2015

Visit from Mariette Geldenhuys

One of the delights in practice is coming across other lawyers who are also fighting the good fight, seeking to ensure that there is equality.

Last week I had the joy of hosting a visit from update Amrerican lawyer Mariette Geldenhuys. Mariette is a family lawyer and mediator from Ithaca, in upstate New York.

She has been a prominent campaigner for LGBT rights in the US, including working for a long time with the National Center for Lesbian Rights. The NCLR has been at the centre of many of the court cases in the US seeking equal marriage rights, playing a key advocacy role in convincing courts that it is a constitutional right there that same sex couples be able to marry.

During her visit we discussed about how it was essential that equal rights were recognised in law, and steps that had been taken in the US and Australia to both advance and set back those rights.

I

Tuesday, 17 March 2015

Elton's right- Dolce is wrong, wrong, wrong

Children are children. They are entitled to be loved, cared for and cherished, however they were conceived. They ought to be protected. That is their parents' and society's duty.

Their parents also ought to be recognised. There are many myths and misconceptions about who undertakes surrogacy and IVF. Should the single woman, survivor of cancer, with no uterus as a result, be vilified for desiring to have a child? Should she be told that due to some quirk of nature that she cannot have children that it is beyond the laws of nature to have children, and therefore she should just give up? That it is somehow shameful and wrong her desire to have a child?

The call by Elton John for a consumer boycott of Dolce and Gabbana is well founded. In an interview with Panorama magazine, Dolce and Gabbana talk of their recent promotion, focussed on the family. Domenico Dolce said: ""I call children of chemistry, synthetic children. Wombs for rent, seeds selected from a catalog."

Dolce then said about whether he wanted to be a father: " I'm gay, I can not have a child. I believe that we can not have everything in life, if there is not to say that there must be. It is also good to deprive yourself of something. Life has its natural course, there are things that must not be changed. And one of these is the family."

Stefano Gabbano said: " We understand that the family is not a fad. It is a sense of the supernatural."

Elton John, outraged at the slight, has called for a consumer boycott. Elton said on his Instagram account:

 "How dare you refer to my beautiful children as 'synthetic.' And shame on you for wagging your judgemental little fingers at IVF — a miracle that has allowed legions of loving people, both straight and gay, to fulfil their dream of having children. Your archaic thinking is out of step with the times, just like your fashions. I shall never wear Dolce and Gabbana ever again. #BoycottDolceGabbana".

As Chief Judge Pascoe from the Federal Circuit Court said recently:


"What a child is entitled to is loving parents. The fact that people are heterosexual does not necessarily make them good parents.

"As we saw in the baby Gammy case, that was to all intents and purposes a heterosexual couple but it would be difficult to say that the man in that relationship was a suitable parent….You do not have to sit in family law for long to see that there are both good and bad heterosexual parents. The real issue is: are these people who will love, protect and care for the child? I think it is really important that we do not focus on issues like the sexuality of intending parents but that we focus on the rights and the protection of the child, and also the rights, care and protection of the birth mother.”
 

Sunday, 15 March 2015

Dame Quentin Bryce's taskforce tackles LGBTI domestic violence

The Newman Government asked a taskforce headed by Dame Quentin Bryce to look at the issue of domestic and family violence in Queensland. 

The taskforce recognised the special difficulties concerning the issue of domestic violence for LGBTI people and recommended that there be changes to allow LGBTI people to be able to identify that what is happening to them is domestic violence, and be able to get support:

 “This non-violent, homosexual advance stuff is regularly in the media. People will talk about that, but no one talks about the DV...
from a contributor to the Taskforce
The true nature and extent of domestic violence suffered by lesbian, gay, bisexual, transgender, and intersex (LGBTI) members of the community remains largely hidden. Comparatively little data and research exists on the prevalence of domestic violence experienced by people that identify as LGBTI. While focus on this issue is growing, both in academia and in policy, there is general acknowledgement that this violence is largely under-reported, under-researched, and under-responded.32
Prevalence of the violence
The limited research that does exist suggests that LGBTI people suffer domestic violence at the same rates or perhaps even higher than those in the broader community. In a 2006 survey, 33% of LGBTI respondents reported as having been in a relationship with a verbally or physically abusive partner.33 Similarly, in a 2008 study approximately a third of participants who had been in same-sex relationships reported having been subject to abuse by their partners.34 A 2010 study of male same-sex intimate partner violence found that it occurred at similar rates to that of opposite-sex relationships.35 Other studies by ACON (2006) and Messinger (2010) have also found significant levels of violence within same-sex relationships, including within female same- sex relationships.36
Nature of the violence
Research identifies a uniqueness in the LGBTI experience of domestic violence. While there
are similarities in perpetrator behaviour in the broader community as in the LGBTI community (e.g. in the form of the physical, sexual and emotional abuse or in the triggering context for the violence), there are particular stressors and factors that are unique for the LGBTI community.37 An example of a distinctive form of abuse is the threat of ‘outing’ a partner to their family and friends to control an individual.38 This action is designed to exacerbate the fear and isolation that may already exist for the person as a result of lived experiences of societal homophobia.39
Also relevant to the uniqueness of the LGBTI experience is the lack of awareness of what domestic violence looks like in that particular context. Not meeting the traditional gendered model of domestic violence means that some victims may not recognise what they are experiencing.40 A woman who is experiencing domestic violence in her first lesbian relationship, for example, may struggle to recognise what acceptable or unacceptable behaviour is in that particular context.41
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For a man in a same-sex relationship, there may be issues and expectations of masculine ideals — strength, authority, control — that impact upon his understanding of what he is experiencing and how he can address it.42 This issue was highlighted in a LGBTI focus group, when one participant noted that:
as a gay man, you’re always hearing don’t be such a faggot. Don’t be such a fag. Whatever that means to whoever’s telling you this — in a relationship, if you’re coming in having heard all that...
from a contributor to the Taskforce
The lack of modelling of healthy, respectful LGBTI relationships may mean that young people do not have an understanding of what is appropriate, or an ideal from which to build a healthy and resilient relationship.43
Barriers to support
Similar to those in the broader community, there are social, political and legal impediments for LGBTI people in seeking assistance when suffering domestic violence.44 However, there are a number of unique barriers in the LGBTI community, which are broadly reflective of wider issues of stigmatisation and marginalisation.45 In particular, homophobia and discrimination are identified in the research as key barriers for LGBTI victims seeking the assistance they require.46
The isolating effects of discrimination and homophobia may mean that victims are already removed from support networks such as family and friends.47 This initial isolation is then compounded by the isolating impacts of the violence.48 There is some hope though that these concerns may be easing through the concerted efforts of criminal justice agencies to be more inclusive. As one member of the LGBTI focus group stated:
...(the) Queensland Police Service have – they’ve got liaison officers and all that sort of stuff now. They’re a lot more open to people coming to them about domestic violence... in the gay community.
from a contributor to the Taskforce
Unfortunately this barrier in reporting domestic and family violence continues to exist, with research demonstrating that even people who felt supported by law enforcement in reporting domestic violence experienced initial reluctance to contact the police as a result of perceived institutional or interpersonal homophobia.49


Recommendation 14:
The Taskforce recommends that the Queensland Government includes LGBTI specific elements in the communication strategy to raise awareness of domestic and family violence in the LGBTI community, remove the stigmas around reporting and seeking help, and provide LGBTI victims with advice on where to go for support.
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The ability of service providers to adequately respond to the different experiences, circumstances, and concerns of the LGBTI community also creates additional barriers to accessing support. A 2011 study of 65 domestic violence service providers in New South Wales found there were significant service delivery gaps in working with the LGBTI community.50 Only 12 rated themselves as fully competent to work with gay and lesbian clients, with only five able to work with transgender clients, and only three with intersex clients.51
A lack of awareness, education and training as to the experiences of those in the LGBTI community meant that generally service providers were not able to provide these clients with the support they required.52 While the study indicated that LGBTI clients were eventually able to locate appropriate services, this was generally after negative experiences with providers and substantial searching for one that met their needs. Examples of negative experiences included men unable to locate necessary services or alternative accommodation, and in some instances transgender clients being referred for sexual reorientation instead of domestic and family support.53
Implications
The diversity and uniqueness of domestic violence experiences in the LGBTI community, as compared to the broader community, is a clear barrier to these victims receiving the support they require. As this violence doesn’t conform to the traditional gender model, there is a nuance and complexity that needs to be acknowledged in research and policy into the issue.54 While this violence largely remains hidden in our community, occasionally its existence is brought sharply into mainstream view.
In October 2014, Queensland was shocked by the death of transgender woman Mayang Prasetyo who was murdered, and her body subsequently mutilated, by her male partner. He later killed himself after being confronted by the police. This murder remains a devastating reminder of the existence and reality of domestic violence for LGBTI people, and the barriers we face as a community in addressing it. It is critical that the wider community continues to seek out, hear and respond to the voices and experiences of those in our LGBTI community who experience domestic violence, to ensure their stories are not lost. 

Friday, 13 March 2015

"A child is entitled to loving parents"- judge

“What a child is entitled to is loving parents. The fact that people are heterosexual does not necessarily make them good parents,” said Chief Judge John Pascoe in evidence before the House of Representatives committee informal inquiry about surrogacy. Chief Judge Pascoe heads up the Federal Circuit Court, which decides most family law cases in Australia.

His Honour said this after I gave evidence that the law in several States discriminated on the basis of sexuality and relationship status, and it shouldn’t, and the chair of the committee, George Christensen from Mackay said, responding to my evidence: “There is a sound argument that every child deserves a mother and a father, and that is equally as valid as the argument that you put forward.”

Chief Judge Pascoe went on to say:

“As we saw in the baby Gammy case, that was to all intents and purposes a heterosexual couple but it would be difficult to say that the man in that relationship was a suitable parent….You do not have to sit in family law for long to see that there are both good and bad heterosexual parents. The real issue is: are these people who will love, protect and care for the child? I think it is really important that we do not focus on issues like the sexuality of intending parents but that we focus on the rights and the protection of the child, and also the rights, care and protection of the birth mother.”

The committee has not yet decided what to do, but one possibility is that there will be a formal Parliamentary inquiry.

Monday, 2 March 2015

House of Reps committee inquiry on surrogacy

The House of Representatives standing committee on Social Policy and Legal Affairs is currently undertaking an informal inquiry, called a roundtable, about surrogacy.

The Committee, which is chaired by George Christensen (Nationals, Dawson, Qld) took evidence last week from Government departments including Immigration and Foreign Affairs and Trade.

This week on Thursday I and others including Louise Johnson and Kate Bourne from the Victorian Assisted Reproductive Treatment Authority, Sam Everingham from Surrogacy Australia and Miranda Montrone from the fertility counsellors organisation, will be addressing the committee. The session is open to the public, but I understand that there are limited spaces available.

The reality about surrogacy is that it is becoming more and more common as people desperate to have children use the option of last resort. In considering where my clients have come from, and who is a member of the committee, I discovered that of the 10 members of the committee, I have had surrogacy clients from 8 and possibly 9 of the electorates. I can be certain that the only MP who hasn't had a surrogacy client of mine in their electorate is Dr Sharman Stone, from northern rural Victoria.

SA proposed surrogacy laws will not remove LGBTI discrimination

Another requirement of the bill is that overseas surrogacy arrangements would be scrutinised by the State's Attorney-General.

The bill does not intend to remove discrimination in SA that in effect currently seeks to prevent gay and lesbian couples, and single intended parents from pursuing surrogacy.

The only clinic that currently offers surrogacy in South Australia, Repromed, requires that the intended parents and the surrogate know each other for two years before they commence counselling.

The full Hansard of Mr Dawkins' speech is here:

LEGISLATIVE COUNCIL Wednesday, 25 February 2015
FAMILY RELATIONSHIPS (SURROGACY) AMENDMENT BILL
Committee Stage
In committee. Clause 1.
The Hon. J.S.L. DAWKINS: I would take this opportunity today to respond to questions that were raised during the second reading debate on this bill in December 2014. I indicated to members of this committee by way of email that that would be the purpose of the debate today. That allows members to further consider my response. I am hoping to proceed with the further stages of the committee in the very near future, but I will work with members on that and keep them informed in the normal manner. I hope the committee will bear with me as I deal with the responses to those questions. The first question is from the Hon. Tung Ngo, and I will quote the member:
My question is whether surrogacy should only be recognised if it is sought through this register. It would seem to me that doing this would clear up any potential future ambiguity over whether a particular agreement constituted legal surrogacy. This may mean that those surrogate mothers who only choose to be a surrogate for a specific person they may trust would need specific recognition within the register.
My answer to this question is no. The intention of this bill is to provide a register to assist potential parents who may be looking for a surrogate once they have been advised that they are unable to conceive naturally or otherwise; therefore my intention is to continue to allow the current practice whereby suitable surrogates are sourced by the prospective parents without reference to any register, whether these surrogates be friends or otherwise who are not on the register. I continue with the Hon. Tung Ngo's questions:
Another question I would like a response to is whether this amendment bill is effectively setting up an industry, whether altruistic or not, which needs adequate safeguards built in to provide certain protections for all parties involved. Even if a surrogate acts out of altruism, she would still expect that the necessary expense she has incurred throughout pregnancy would be accounted for by the commissioning parents. If this does not occur, what protections are available in this bill? What if there are unexpected complications in the pregnancy, and this changes the attitudes of commissioning parents? Do these matters become a purely civil issue with no protections available to the surrogate mother?
My response is that this amendment bill is not in any way setting up an industry or commercialising surrogacy in any form. My intention is to simply make accessing surrogacy easier for everyday South Australians and allow reasonable recompense to surrogates for the expenses they incur during the process. However, after recent contact from a constituent, on which I will expand shortly, I am considering some small amendments to clause 7(5) of the bill. A further question from the Hon. Tung Ngo:
Likewise, Mr President, as a man I will never be able to understand the emotional bond that develops between a mother and her baby during pregnancy, but I can foresee a scenario w h ere surrogate mothers who have previously come to an agreement with commissioning parents then decide that they want to keep the baby. How is this issue dealt with? I would also like to know what information will be available to women who are considering placing themselves on the register. It is a very big decision to make.
As alluded to earlier, in addition to the Hon. Mr Ngo speaking of his concerns on this matter, I have recently had a constituent visit me to discuss this very issue, which she herself has faced firsthand. I do not wish to mention the constituent's name on the record, but what I will say is that this mother has accessed surrogacy using the current legislation in South Australia and provided me with a unique perspective about this law in action, which I feel would also be of
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benefit to the committee. The constituent concerned has written her story in her own words and I quote:
Unfortunately I am a recurrent miscarriage patient primarily due to an autoimmune condition which causes my blood to clot. After many years of infertility, failed IV F cycles and heartache, surrogacy was the best way for us to finally realise our dream of having a genetic child. My husband and I are very grateful that the existing laws in South Australia allowed us to engage in altruistic surrogacy locally, which ultimately resulted in the birth of our darling son last year.
Initially we had three attempts with a surrogate in California in the United States. Although surrogacy is a very well trodden path in the States, it was extremely expensive, di fficul t and for one reason or another, it didn't work for us. Our agent was about to 'match' (as is the terminology in the States) us with a new surrogate for a fourth attempt when everything changed and we decided to take a new direction. A local lady unexpectedly came forward and together we excitedly decided to try and have a baby through Repromed here in Adelaide using embryos we had already created and frozen. We were so incredibly lucky that it worked first try.
One of the main reasons we went overseas initially was that we never thought we'd find someone at home willing to be our gestational surrogate, but also because local surrogacy is so uncommon in South Australia. Most people mistakenly believe that it's not even legal! In all honesty, while the process was lengthy and at times difficult, on the whole we actually found the process, especially the steps that needed to be taken to establish a 'recognised surrogacy arrangement' at the beginning of our journey, easier to navigate than we imagined. We were very fortunate that we were able to pursue surrogacy locally for many reasonsfor example, it mean we could be involved in, and very much be a part of, the pregnancy.
Along the way we found out that there actually are women out there that are willing to be gestational surrogates, indeed it is something they WANT to do as a way of 'paying it forward', by giving the ultimate gift of helping to create a family. We also have excellent fertility treatment available to us here in South Australia. So for these reasons and others, I feel there is so much potential for there to be more and m ore altruistic surrogacy arrang ements here in South Australia in the future and I certainly hope that is the case.
I do thank the lady concerned for the time she has given to me and particularly for allowing me to read that particularly unique perspective into the record. However, this constituent subsequently had legal issues similar to those mentioned or foreshadowed by the Hon. Mr Ngo. The current legislation does not provide a legal circuit breaker, so to speak, in those types of situations, and South Australia is not unique in the commonwealth from this perspective. The use of the legal system, often expensive, is the only way to resolve these issues, often having to grant a parenting order to resolve the case.
After hearing the Hon. Mr Ngo's concerns and listening to the issues faced by the constituent who approached me, I am considering amendments to the bill that will provide some kind of option for the parents and/or surrogate to utilise when these cases arise. I would now like to move on to my responses to questions from the Hon. Ian Hunter. His first questions was: 'In practice, does the bill exclude same-sex couples?' The answer to that question is that the current law does not include provisions for access by same-sex couples, and my bill does not seek to alter that in any way.
The second question from the Hon. Mr Hunter was: 'In practice, does the bill exclude single women?' Again, the answer to that question is that current law does not include provisions for access by single mothers and my bill does not seek to alter that in any way.
The third question from the Hon. Mr Hunter was: 'What criteria, under the bill, would the minister impose on restricting the access to various groups under the framework proposed?' Any criteria imposed by the minister would be up to the Hon. Mr Hunter's cabinet colleague or any subsequent responsible minister in that position. The bill calls on the minister to develop a framework via regulations to regulate the usage of the agreements, and I would suggest that, if this bill is passed by both houses and becomes law, the Hon. Mr Hunter and all other honourable members lobby the responsible minster for what they would like and not like to see included in the proposed framework.
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Unfortunately, as a member of the opposition I do not receive the resources or expert assistance that is far more readily available to members of Her Majesty's government and, therefore, for that reason and reasons relating to ensuring the framework is dynamic and readily kept up to date with community expectations, I have considered it appropriate to leave this framework to be developed by the minister and implemented by regulation.
A further question from the Hon. Mr Hunter was: 'Could couples who engage in overseas surrogacy be subject to an offence as outlined in section 10H(22)? If so, what is the intent of legislating for such an offence? How does the incorporation of the offence balance with parliament's desire to legislate in the best interests of a child? Does this bill work to deny appropriate legal recognition of parentage to children born through overseas surrogacy?'
From the outset of this answer I would like to put on the record that it is not my intention to create an offence for individuals who engage in overseas surrogacy; therefore, whether someone has committed an offence or not when procuring a commercial surrogacy agreement overseas depends on whether an individual's action has, by law, created a territorial nexus and, therefore, enables their actions to come under South Australian law.
Like all laws in South Australia if a territorial nexus (which I will explain further for the council shortly) exists then when you breach a law of the state in another jurisdiction you can, depending on the facts of the case which have to satisfy very specific criteria, be prosecuted for that offence in South Australia. However, in the case of overseas surrogacy I am advised that this is very unlikely as the individual facts of the case and the location of the offence itself have to satisfy the aforementioned specific criteria which is laid out in the legislation.
Therefore, unless a case occurred in which someone procuring a commercial surrogacy agreement overseas somehow satisfied the requirements of the necessary territorial nexus (which as I said earlier is very much dependent on the individual case and circumstances) they could not be prosecuted for an offence under this bill. Therefore, for someone to be prosecuted for an offence under clause 6 of the bill, their actions would first have to satisfy section 5G of the Criminal Law Consolidation Act 1935 (South Australia), specifically that there was a necessary territorial nexus.
As honourable members would be aware, a territorial nexus exists for all laws in South Australia, not just surrogacy, so whilst a prosecution might be possible if the specifics of the case satisfies 5G of the Criminal Law Consolidation Act, in most cases it would be most unlikely as it would be incredibly hard to prove.
Whilst I cannot provide the council with a simple yes or no answer in this case, I am advised that it appears as though prosecution would be highly unlikely if international commercial surrogacy is procured in a legitimate fashion and wholly conducted and commissioned overseas. The reasoning for such a provision is simply to help prevent baby Gammy cases from eventuating or, if they do, provide a domestic avenue for prosecution and to keep the current status of altruistic surrogacy being the only form of legal surrogacy in this state.
It is in no way the intention of this bill to deny appropriate legal recognition of the parentage of a child born through overseas surrogacy. If the procurement of the overseas surrogacy agreement is completed in accordance with the law, the reasoning behind these provisions is to solely protect the interests of children born through the use of this bill.
In conclusion, it is still my wish to proceed through the remaining stages of this bill in the near future. I will certainly keep members informed as I develop the possible amendments that I have foreshadowed today. As a humble member of the opposition, I am very grateful to parliamentary counsel and to Brad Vermeer of my staff for the commitment to making this bill as good as possible, and we will take reasonable suggestions, in due course, as we develop the possible amendments.
I am grateful to members of this chamber for their support and their interest in this legislation. I have responded to those who put questions on the parliamentary record late last
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year. Other than one or two members of the community, there have not been any other queries since that time.
This is something that I believe in very strongly. It is certainly not perfect. I will do everything I can in the next few weeks to bring some amendments in that may help us to further improve this legislation. I do repeat again what I said late last year and that is that if there are members with suggestionsand I know that the Hon. Tammy Franks has given me great notice that she will be developing an amendmentbut if there are other members who have concerns or wish to do something along that line, I will be very grateful if they would let me know and give me notice at the earliest point.
Progress reported; committee to sit again.