Wednesday, 10 October 2018

WA laws on their way to allow single men and gay couples access to surrogacy

Yesterday the WA Lower House, on a conscience vote,  passed laws to amend that State's surrogacy laws to allow since men and gay couples to have access to surrogacy. The laws now make their way to the Upper House.

When the Surrogacy Act 2008 (WA) passed, it allowed single women, heterosexual couples, and lesbian couples to undertake surrogacy, but actively discriminated against single men and gay couples.

That discrimination continued unabated.

In 2015, Australia copped a shellacking at the UN Human Rights Committee in Geneva and as a result vowed to remove exemptions under the federal Sex Discrimination Act that allowed the States to discriminate against LGBTI people in the provision of assisted reproductive treatment and surrogacy. The federal government said it would end those exemptions by 1 August 2016. And indeed it did- except for Western Australia. For some reason, the exemption was continued for Western Australia until 1 August 2017.

In May 2017 I wrote to the WA Deputy Premier and Health Minister calling for the removal of this exemption. The response was that this would be considered by the Health Department. The next step was the holding of a review of ART and surrogacy laws in Western Australia. And now we have the bill- which will remove that discrimination if passed.

When the debate occurred yesterday, all the usual tired arguments in opposition as to the rights of the child were trotted out. Similarly, a gay MP and a lesbian MP spoke passionately in favour of the change.

The leader of the Nationals, Mia Davies, spoke passionately in favour of the change. 

If the change is made, then it is likely that WA single men and gay couples will be able to access surorgacy at home rather than go abroad.

The sobering statistics are that in the 10 years that WA has allowed surrogacy, only 1 child a year has been born there through surrogacy- a total of 10, from 34 surrogacy agreements. To put this into context, in most years 250 children are born to Australians through overseas surrogacy. If WA parents go overseas at the same rate as everyone else, then that means for every child born through surrogacy in WA, 23 or 24 have been born overseas. What kind of surrogacy system is it that forces people to go overseas (and some to developing countries) at the rate of 24 to 1, rather than doing so at home?

Religious review proposes to make permanent religious schools to turn away LGBTI teachers and students

The bakers, florists and limo drivers of Australia  and other serivce providers will still be prevented from discriminating against LGBTI people, as recommended by the religious freedom review, according to Fairfax Media. The religious freedom review that was headed by Philip Ruddock has recommended that there be religious schools be permitted to turn away LGBTI teachers and students. The review was handed to the Turnbull government four months ago and has not been released for public scrutiny.

In the words of Fairfax Media:

"The report calls for the federal Sex Discrimination Act to be amended to allow religious schools to discriminate against students on the basis of sexual orientation, gender identity or relationship status - something some but not all states already allow."

The proposed step would be a step backwards for LGBTI students. For example, in the ACT there is no exemption for discrimination against LGBTI students. Section 46 of the Discrimination Act 1991 (ACT) provides:

"Section 18 does not make unlawful discrimination on the ground of religious conviction in relation to a failure to accept a person's application for admission as a student at an educational institution that is conducted solely for students having a religious conviction other than that of the applicant.
Note     The Legislation Act
, dict, pt 1 defines fail to include refuse."

Therefore while a Catholic school could refuse to admit for enrolment a Muslim student, it cannot refuse to enroll (or discriminate against the student at school) a student who is a Catholic, but happens to be lesbian, gay, bisexual, trans or intersex.

However the panel:

"... did not accept that businesses should be allowed to refuse services on religious grounds, warning this would “unnecessarily encroach on other human rights” and “may cause significant harm to vulnerable groups”.
The review also found civil celebrants should not be entitled to refuse to conduct same-sex wedding ceremonies if they became celebrants after it was was legalised.
The review does not recommend any changes to the Marriage Act. Nor does it recommend a dedicated Religious Freedom Act - championed by several major Christian churches - which would have enshrined religious organisations’ exemptions from anti-discrimination laws.
“Specifically protecting freedom of religion would be out of step with the treatment of other rights,” the report found."

Wednesday, 12 September 2018

Chilean couple held for child trafficking

What is now occurring to Chilean couple Jorge Tovar and his wife in Peru should ring a loud bell for anyone contemplating undertaking surrogacy overseas – to get legal advice from lawyers at both ends.  Mr and Mrs Tovar underwent surrogacy in Peru and, apparently, followed the advice of the fertility clinic in Peru that when the child was born, Mrs Tovar was to be named as the mother.  Apparently, Peru has no laws about surrogacy but follows the age old legal presumption that the mother is always certain, i.e. the woman who gave birth is named as the mother.  Therefore, whoever is named on the birth certificate is deemed to be the mother.

All was going well for Mr and Mrs Tovar until they got a delayed flight, which set them back 24 hours.  The result?  They arrived in Peru after their twins were born.  Mrs Tovar was named on the birth certificate as the mother. 

When they went to leave Peru, an eagle eyed official noted that the day of their arrival was after the children were born and yet Mrs Tovar was named as the mother.  The couple were then arrested on child trafficking charges and are being held in prison pending the outcome of the case.  In the meantime, the children are in the care of State authorities.

Anyone who is contemplating undertaking surrogacy overseas – please oh please get legal advice from lawyers who know what they are doing in both countries before you start.

Victorian ART review

The Victorian Government is undertaking a review of assisted reproductive treatment law in Victoria.  The review is being conducted by Michael Gordon AM, a lawyer who is a former chair of the Victorian Assisted Reproductive Treatment Authority and Patient Review Panel.
Mr Gordon has said:
            “It is now a decade on since the last significant review of assisted reproductive treatment regulation in Victoria, and it is timely to reflect on the significant changes that have occurred since then, including:
·         changes to the number, ownership and management of assisted reproductive treatment clinics from the clinician-owned and led clinics originally established in Victoria;

·         great advances in treatments and technology for IVF and related procedures;

·         changes to social values and opinions, including changes to legislative rights and responsibilities;

·         changes to the Marriage Act for same-sex marriage and other changes dealing with gender and sexuality.”
Mr Gordon also says:
            “Assisted reproductive treatment offers many benefits, and it is important that it is not inappropriately limited by people’s ability to pay or by where they live, nor affected by inadequate knowledge or information, or by discrimination according to gender, sexuality, identity, race or other attributes.”
The review has identified a number of legal rights of access.  For example, section 47 of the Assisted Reproductive Treatment Act allows for the posthumous use of gametes or embryos where “the treatment procedure is carried out on the deceased person’s partner or in the case of a deceased woman by the woman’s male partner commissioning a surrogacy arrangement”.
The review comments:
            “This appears to restrict the posthumous use of gametes by people in same-sex relationships and by single women who may require a surrogate because they are unable to carry a baby themselves.  It may be timely to consider where there is an appropriate rational for such a restriction.”
The review notes that a single cycle of IVF treatment can cost well in excess of $8,000.  “Costs can quickly add up where multiple cycles of treatment are required.”
            “Demand for donated gametes and embryos continues to rise, without a corresponding increase in the supply of donors.  This has resulted in shortages of donor gametes and increasing pressure on clinics to source donor sperm, eggs and embryos.  These shortages may be even more acute for people from diverse ethnic groups, who seek to source gametes/embryos from donors with a shared ethnic background.”
It was noted the small but increasing number of surrogacy arrangements and that the restrictions about finding donors and surrogates:
            “…designed to protect people from exploitation, may have the effect of leading people to make arrangements outside the regulatory framework and therefore without support.  It is understood that unmoderated online forums and discussion groups connecting potential donors and surrogates with intended parents have become common over recent years.  There is significant but undocumented use of these forums that may bypass the legislative restrictions on advertising.”

Compensation for donors and surrogates

The review states:
            “It has been suggested that there may be some lack of clarity about what constitutes reasonable expenses for donations.  This lack of clarity has resulted in different interpretations and different levels of compensation paid by different clinics within Victoria.  This could act as a disincentive to those who may otherwise be interested in participating on an altruistic basis or result in donors ‘shopping around’ between clinics to receive the highest level of compensation.
As to surrogates:
            “Victoria has among the most restrictive rules in Australia in relation to reimbursement of surrogates.  Unlike New South Wales, Queensland and Tasmania, for example, the Victorian regime does not allow for any additional insurance expenses incurred by a surrogate to be met by the intended parent, nor is there provision for lost income as a result of leave taken during pregnancy.”
Concern is raised about Victorians undertaking overseas surrogacy:
            “There can be complex legal issues associated with overseas surrogacy, depending on the nature of the agreements entered into and the laws of the country in which the surrogacy arrangement occurs…many countries where Australians may pursue surrogacy arrangements have little regulatory oversight or protection for surrogates or intending parents.  Reportedly, there is a rising trend towards multinational commercial surrogacy operations, with major players responding to tightening restrictions in one country by moving to another less regulated country.”
            “There are risks for the child to be born.  Unethical surrogacy arrangements do not put the rights and interests of children to be born first.  Non-existent or inconsistent record keeping means that children born of surrogacy arrangements using donated gametes are unlikely to have access to information about their genetic history.
            For the surrogate, a lack of regulation can increase the risk of exploitation.  Health risks associated with pregnancy can be exacerbated through pressure to agree to risky procedures such as multiple embryo transfers or deliveries toned to meet the schedule of the intended parent.
            Finally, poorly regulated countries may also expose intending parents to risk of exploitation.  People may pay high sums of money and, if promised services are not delivered, there may be little opportunity for recompense.”

LGBTI people

The review states:
            “The language of the Act reflects the social attitudes and understanding of diversity that existed at the time it was drafted.  Over the last decade, attitudes and recognition of the rights and needs of LGBTI people have evolved dramatically, and LGBTI people are increasingly making use of assisted reproductive treatment services.  Seen through today’s lens some of the provisions of the Act appear outdated at best and at worst discriminatory…It has also been noted that the Act’s guiding principles state that “persons seeking to undergo treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion”.  It is time to consider if this is sufficiently inclusive or whether it should, for example, also extend to discrimination on the basis of gender identity and/or intersex status.”

Submissions to the review can be sent to  Submissions close on Friday, 21 September 2018.

Wednesday, 22 August 2018

State laws have not kept up with equal marriage laws about who is a parent

When the Marriage Act 1961 was amended last year to recognise marriages, irrespective of the gender of the parties, laws about who was a parent may not have kept up.  Each of the States and Territories will now need to look at their laws to ensure that who is recognised as the spouse of a person who gave birth is recognised as a parent when there has been a child born through the help of assisted reproductive treatment. 

Commonwealth law provides the saving grace, but it would be very helpful if State and Territory laws were consistent.  The example that I give is under the Status of Children Act 1978 (Qld).  This Act covers parentage presumptions, i.e. who is a parent of a child.  Just because someone is genetically a parent does not make them the parent as a matter of law.  Division 2 is called: Parentage presumptions of children conceived by fertilisation procedures.  Subdivision 1 concerns interpretation.  Subdivision 2 concerns fertilisation procedures of married women with their husbands consent.  Subdivision 2A is called Fertilisation procedures – women with female de facto partners’ consent.  Subdivision 3 is for everyone else: Fertilisation procedures – other married women and unmarried women.  For a lesbian couple who have married, this division does not apply to them.  Section 20 makes plain:
            “This subdivision applies if –
(a)   a married woman undergoes a fertilisation procedure other than with her husband’s consent; or

(b)   a woman who is not married and does not have a de facto partner or civil partner undergoes a fertilisation procedure; or

(c)   a woman who has a de facto partner undergoes a fertilisation procedure other than with her partner’s consent; or

(d)   a woman who has a civil partner undergoes a fertilisation procedure other than with her partner’s consent.”

So it seems as though married lesbian couples are not covered under parentage presumptions.  Therefore you might think that neither woman is recognised as a parent.  Instead, the woman who gave birth will generally be recognised under our law as the mother.  This is because the focus of the law since 700CE, in the time of the Emperor Justinian, is that the mother is always certain, i.e. she is the one who gave birth.

The status of her wife is not provided for under the Queensland legislation.Under Queensland law, therefore, when a child is born through assisted reproductive treatment to a married lesbian couple, only the birth mother is recognised as a parent.

Family Law Act to the rescue

Section 60H of the Family Law Act provides  that both women are the parents.  Under section 109 of the Commonwealth Constitution where the State and Federal laws are inconsistent, the Federal law prevails to the extent of the inconsistency.  Section 60H(1) provides:
“(1)     If:
(b)        either:
(ii)        under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
(c)        the child is the child of the woman and of the other intended parent; and
(d)        if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
It is possible that a clerk at the Registrar of Births, Deaths and Marriages may, in relying on the State legislation, refuse to recognise the non-birth mother as a parent on the birth certificate.  To have done so would be in breach of the Family Law Act, inconsistent Federal legislation.  Hopefully that day will not come to pass.  Let’s wait and see.

The sooner that State and Territory legislation is checked, and amended to be consistent with the equal marriage changes, the better.