Monday, 23 November 2015

Queensland LNP allows conscience vote on civil partnerships laws

Queensland has at times the most extraordinary politics. Today Opposition Leader Lawrence Springborg announced that the LNP party room has, for the first time, allowed a conscience vote on the proposed civil partnership bill. 

This is just a few days after the LNP members of the committee examining the bill sought to prevent any report being written about the submissions made and evidence given, including by me. 

The pressure may now be on Premier Anastasia Palaczszuk to see if she now allows ALP members a conscience vote.
If she doesn't, the bill is bound to pass, even without the support of Speaker Peter Wellington and Independent Billy Gordon. 

We live in interesting times. 

Sunday, 22 November 2015

Wild, wild west- don't go to Cambodia for surrogacy

Today I came across a story from the Sydney Morning Herald about surrogacy in Cambodia.
I had heard some time ago that following the Baby Gammy saga, Thai clinics were moving to Cambodia.

Australia, according to Transparency International, is the 11th cleanest country for corruption. The US is number 17, and Cambodia is number 156, out of a possible 175.

In Asia, those previous places of surrogacy, India, Nepal and Thailand are rated as a lot less corrupt. In fact, the only places worse in Asia for corruption are Myanmar, Afghanistan and North Korea.

The infant mortality rate in Cambodia is over 10 times worse than Australia: about 42.1 per 100,000 live births. In Australia it is 4 per 100,000.

Anyone who goes to the Wild West, Cambodia, for surrogacy, is asking for trouble. Quite simply, they shouldn't.

Unmitigated Mexican surrogacy disaster

I hate surprises. When it comes to surrogacy (or other court cases for that matter) I very much believe in prevention is better than cure. I would rather clients tell me what the dramas are, in a candid manner, so that they can be planned and accounted for, rather than trying to fix up a mess.

When it comes to surrogacy, I like to plan the process at the beginning, using people I like and trust, who can assist my clients all the way through. For domestic surrogacy arrangements, this may be other lawyers, financial planners, counsellors and IVF doctors. I just want it to go right first time, or at least have the greatest chance of going right first time. And if it doesn't go right first time, to do what needs to be done to fix it- easily, quickly, and as cheaply as possible.

Any surrogacy journey can have dramas, which most of the time will be medical, but can be regulatory. For those going to developing countries, it is very much a case of buyer beware. Going overseas for surrogacy, with IVF and using an overseas surrogate, and often an egg donor, is one of the most complex ways of becoming a parent, and things can go badly wrong.

Doing surrogacy at home can be a truly beautiful experience, despite the hurdles, as seen here and here

Those contemplating going overseas ought to rethink about whether they can do so back home. For some people, such as singles, gay and lesbian couples living in South Australia, or single men and gay couples in Western Australia, at first glance they have little choice but to go overseas. However, it may be possible for them to undertake surrogacy in Queensland or New South Wales. The delay may be no greater than an overseas trip, risk is down and cost may be especially down. Domestic surrogacy arrangements can be as cheap as $25,000 to $60,000, which is usually a lot cheaper than anywhere overseas.

A good illustration of things going wrong is this terrible tale of an Australian couple going to Mexico in today's Sydney Morning Herald:

 "The list of problems included the destruction of our embryo by the clinic through an error in the freezing process and the mixing up of paperwork on transfer of embryos between clinics. We weren't even sure the embryos transferred in to the surrogate were ours for a period of time.
"In some ways we are glad this devastating experience is over, for us and also for the surrogate mother who didn't fall pregnant."
One laboratory report stated that the "technique used is terrible". The couple said that while the two clinics argue who is the least incompetent, they are heartbroken at seeing the photos of the destroyed embryo.
Mr Yii added: "We where given assurance by our Australian lawyer who did due diligence on a number of clinics that the one we were to use was 'the most professional and ethical clinic with the most experience in Mexico'. Clearly the best in Mexico has failed."

I was not the lawyer who advised this couple. 

Queensland Civil Partnerships Bill to proceed

Late last week the Queensland Parliament committee delivered its report into the proposed civil partnerships bill. What was not in the report was the main message- the Queensland LNP State MP's are firmly against the recognition of rights for LGBT people. No other message could be garnered- when they sought to censor the evidence of submissions to the inquiry.

I have given evidence to a number of Parliamentary inquiries. I will give my view of the world. I will be accepted, rejected or ignored, but I didn't expect that the LNP MP's would seek to prevent ANY of the submissions or evidence of ALL of the witnesses from appearing in the report.

The message is clear. Do not assume that a vote in favour at the plebiscite is a done deal. It should be assumed that there will be fierce opposition, and that the plebiscite will only succeed with organisation and determination.

There has been no statement by the Opposition about why they tried to censor what was said. The message was one that certain members of the Opposition did not want to hear: the submissions were overwhelmingly in favour of the change.

The vote was split evenly along party lines, which meant that the Committee was unable to reach a recommendation to Parliament. When I checked with my local MP today, Labor's Grace Grace, I was told in no uncertain terms that the vote would not prevent the Government from proceeding with the Bill. The Government qill be proceeding with its Bill. The silence of the Opposition members masked their opposition. Why didn't they just say that they were opposed to the changes?

This is what chair Mark Furner (ALP) said:

government members of the committee express their disappointment that the committee was unable to reach agreement on this Bill, or present the evidence provided to the committee from those who gave us personal stories about how this Bill if passed would change their lives.
 The ALP members set out the submissions and evidence to the committee. I am quoted here:

The Bill re-instates the opportunity for same sex relationships to have a public
celebration of their love.
Love is love. Those in same sex relationships are denied the ability to marry in
Australia. Their relationships are to all intents and purposes invisible.
Nevertheless, same sex couples wish their relationship to be recognised. The ability to merely fill out a form without any public celebration of their love is short changing these couples in having that love celebrated with their friends and family, and, if they are religious, with God.
The key to the 2012 amendments was to deny that public celebration of love. This short changed all the couples involved and as a result impoverished our society by not recognising, in an appropriate way, those relationships. The State should not be preventing those who wish to have the public celebration of their love by a means other than marriage from enjoying and cherishing that public celebration. Two autonomous adults should be able to make that choice without interference from the State.
An odd provision of the Relationships Act and it is continued under this bill is that a registered relationship is similarly [to its registration] ended by form filling.
Under section 18 the registrar of births, deaths and marriages is required to decide without any statutory criteria, other than possibly considering conflicting statutory declarations of the parties, as to whether or not a registered relationship has
ended. This function should not be left to bureaucracy but put in the hands of courts, as it was in the Civil Partnerships Act, where, if there is a conflict about whether or not a relationship has ended and when, it could be properly decided in an accountable way by the third arm of government to which appeals and proper processes are open to an aggrieved party.
Mr Page (a family lawyer) pointed out that the types of scenarios where there is disagreement about
the ending of a relationship relate to questions of whether the parties were in a relationship at all:
I can tell you that quite frequently there is litigation between couples as to whether or not they are in a relationship. Having a registered relationship or a civil partnership and certainly I prefer a civil partnership because of the ceremonial
aspect of it is essential because if the couple have done that then there is no dispute that they are in a de facto relationship and they might save, in the process I do not know
—$100,000 and $30,000 of Commonwealth taxpayers’
money. I know that is the Commonwealth’s, it is not the state’s, but nevertheless it is a saving to society. It is money that, instead of funding people like myself, could be put towards their children.

Mr Page indicated that the government had suggested QCAT was an option for reviewing decisions
made by the registrar, but considered it should be decided ‘...
in a court, make sure if there needs to
be evidence given there can be evidence given and a determination is made under law as to whether
or not the relationship has ended

Catching up with Michael Tiyce

On Friday I finally met one of my interstate colleagues- prominent LGBT family lawyer Michael Tiyce. In the nature of today's modern world, Michael and I have kept in regular contact- by phone, email and by Facebook, of course, but as he is in Sydney and I am in Brisbane, for some reason we had never met.

That was fixed on Friday, when I caught up with Michael and his associate Barry Apelbaum in Sydney. I was in Sydney to obtain a surrogacy parentage order.

Both Michael and Barry are keen on attending the LGBT Family Law Institute regional meeting in Brisbane on 12 and 13 March, 2016. This will be the first regional meeting of the LGBT Family Law Institute meeting in Australia, and the second outside the US (the first being in London in May this year).

Thursday, 12 November 2015

Victorian Bill to remove adoption discrimination

Later today, fingers crossed, the Victorian Upper House will hopefully pass laws to remove same sex discrimination from adoption laws in Victoria. The Bill has already passed the Lower House.

Currently half of Australia by jurisdiction, and greater than half of the Australian population, is subject to laws that prevent same sex couples from adopting children. Human Rights Commissioner Tim Wilson has called for the repeal of the laws. The discriminatory laws are in: Victoria, Queensland, the Northern Territory and South Australia.

The proposed change in Victoria will bring Victoria into line with those places that do not discrimination on the basis of sexuality in adoption: New South Wales, the ACT, Tasmania and Western Australia.  Despite the statements of the Chicken Little's of the world, the sky has not fallen in those places when they legislated to allow adoption by same sex couples. Queensland has also pledged to remove this discrimination and South Australia is reviewing how its laws discriminate against same sex couples.

The irony of the discrimination is that everywhere in Australia same sex couples are accepted as foster carers. If they are good enough to care for our most troubled and vulnerable children, why can't they be allowed to adopt?

When I say fingers crossed, I understand that the numbers in the Upper House are finely balanced, and the vote could go either way.

National surrogacy seminars

Surrogacy seminars in just over a week

In just over a week,  Families Through Surrogacy will be hosting surrogacy seminars throughout Australia- in Perth, Adelaide, Sydney, Melbourne and Brisbane.

I will be speaking at the Brisbane seminar on Tuesday 24 November, 2015. Other speakers include speakers from the Ukraine, Canada and Oregon.

Many Australians choose to go overseas for surrogacy, believing that it is quicker, easier and cheaper than back home. Properly organised, surrogacy in Australia should be cheaper and should be easier than going overseas, while providing legal certainty. The difficulties in organising local surrogacy usually revolve around finding a surrogate and an egg donor, and discrimination issues.

Local laws tempting people to go overseas


In the ACT those undertaking surrogacy have to be a couple, and the surrogate also has to be part of a couple. There isn't discrimination on the basis of sexuality. Fertility treatment must be in the ACT. Due to geography, these problems can usually quickly be avoided, as NSW does not have these restrictions.


Under the Surrogacy Act, all the parties must, unless a court orders otherwise, be from Tasmania. The problem is that the court makes the order after the baby is born- and therefore after the decision is made whether to go ahead with the surrogacy arrangement.

South Australia

SA discriminates against singles and same sex couples seeking surrogacy.

Northern Territory

The Northern Territory has no surrogacy laws. The effect is that IVF cannot be performed there, and those living in the NT have to go interstate or overseas.

Western Australia

WA discriminates against single men and gay couples. Single women, and lesbian couples can access surrogacy in WA.

Where there are legal complications if you decide to go overseas

If you choose to go overseas for surrogacy, then there is always a legal complication as to citizenship (assuming you are an Australian citizen) or visa conditions (assuming you are a permanent resident or NZ citizen living in Australia) and as to whether or not you are a parent.

On top of that there are State laws where it makes it complicated and potentially a jail term by accessing surrogacy overseas. Here is the State by State guide- current as of 12 November, 2015:


Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

New South Wales

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.


Potentially you could go to jail for accessing surrogacy overseas.


No complications.


No complications.

South Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

Western Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas. It is a crime for Western Australian lawyers to advise you about overseas commercial surrogacy.

Northern Territory

No complications.