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. 

Surrogacy in Canada presentation

On Monday 16 March 2015 there will be a presentation in Sydney about surrogacy in Canada, a legal option for those who cannot access surrogacy in Qld, NSW or the ACT, but still want to be parents.

The event is free. The speakers are Canadian surrogacy lawyer, Nicolle Kopping- Pavars- and me.

We will talk about the process of going to Canada for surrogacy, and why. Topics covered will include egg and sperm donation in Canada, IVF treatment options, care options, how surrogacy is regulated in surrogacy, and the all important- how to get your baby home.

The details of the event are:

5.30-7.30pm
Sydney Mechanics School of Arts
280 Pitt Street
Sydney

If you are interested, please let me know via my wonderful PA Laurel: lprasad@harringtonfamilylawyers.com .

Polyamory is not sexual orientation: court

A Brisbane counsellor who was sacked by the Catholic Church because she was polyamorous failed to get her job back in court, as it was not discrimination based on sexual orientation, according to the judge.

The counsellor's name appeared on the Brisbane Poly website as a poly friendly counsellor. Her name was then found as a member. On being called to a meeting and asked to give an explanation, the counsellor, Susan Bunning, who was practice manager at Centacare in Fortitude Valley, was summarily sacked.

Ms Bunning complained to the Australian Human Rights Commission on the basis that she had been discriminated against based on sexual orientation. her complaint was dismissed. she then appealed to the Federal Circuit Court.

Judge Vasta dismissed her application. He said:

"If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984 (Cth). Such a result would be an absurdity.

"This is because sexual orientation is something far more than how one behaves sexually. Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 1984. This is because their behaviour does not define their orientation."

"I am led to the inexorable conclusion that “sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours."

"In my view, it is not possible to be polyamorous unless one engages in  polyamory. Polyamory  is a manifestation of the state of being that is a person’s particular sexual orientation. It is a “behaviour”, rather than a state of being.

"The Australian Macquarie Dictionary defines the term “ polyamory ” as:“The mating pattern of having a number of sexual partners at the same time”
The Australian Oxford Dictionary defines the term as:
“The practice of engaging in multiple sexual relationships with the consent of all the people involved.”Therefore, one has to behave in a polyamorous way to be, in fact, polyamorous. It is not a state of being existing in and of itself. I am also comforted in this conclusion by the Applicant’s own statement in her application before the AHRC in which she characterises  polyamory  as a “lifestyle”."


Sunday, 8 February 2015

What future for LGBTI rights in Queensland?

The uncertain outcome from the Queensland election shows again that the equality of LGBTI rights should not be taken for granted.

On the one side, we have the ALP. When then LNP Attorney-General Jarrod Bleijie proposed to criminalise those undertaking surrogacy when they were single, gay or lesbian, I and a small group of others formed Queenslanders for Equality to fight this terrible winding back. The Opposition, tiny as it was, was of great assistance in helping Queenslanders for Equality take the fight to the Government. Anastasia Palaszczuk and Jackie Trad stood up publicly and said that they were opposed to the proposal.

Grace Grace, now the ALP member for Brisbane Central (again) at the recent LGBTI debate pledged equality for LGBTI Queenslanders.

However, the ALP if it is to govern may have to rely on the support of the Katter Australia Party- a party and in particular with a leader in Shane Knuth, who have opposed LGBTI rights.

On the other hand, it is back to the future with the LNP. If the LNP gets up, who knows what the future might bring. Lawrence Springborg is back for the third time as leader. Previously he, when he was Opposition Attorney-General, drafted a surrogacy bill, the night of an LGBTI welcome to Parliament barbecue hosted ironically enough by Grace Grace- which bill was identical to the ALP version- except that it criminalised singles, gays and lesbians- the very proposal which was attempted to be revived by Jarrod Bleijie (and then modified) in 2012.

Lawrence Springborg was the Health Minister in the Newman government who earned the ire of many for defunding what became the Queensland Aids Council, and on whose watch the significant health facility, Biala, which provided cared for Aids patients,  was defunded.

Campbell Newman was not a homophobe. Many years ago when I was on the committee of the Brisbane Gay and Lesbian Business Network, I successfully invited Mr Newman, then Brisbane;s Lord Mayor to speak as guest of honour at a GLBN function- the first LNP member to do so. Mr Newman's moderating influence, and that of Brisbane Central MP Rob Cavallucci (replaced by Grace Grace) is gone.

Those of us who live in Queensland live in interesting times.


Monday, 19 January 2015

Will the LNP try to criminalise gay, lesbian and single intended parents through surrogacy?

At the last Queensland election, then Opposition Leader Campbell Newman stated that there would be no changes to Queensland's surrogacy laws. Will he do so this time?

By June 2012, the Queensland Attorney-General Jarrod Bleijie, who has been silent in this campaign, said that the Newman government would wind back two areas:


  • non-biological lesbian mums would no longer have legal recognition 
  • the Surrogacy Act would be amended, in essence to criminalise single, gay and lesbian intended parents
The first proposal was dropped quickly, after it became apparent that Queensland would be out of step with all other States and Territories and the Commonwealth.

The Premier then said that his position before the State election was not firm, that he had been caught, in effect, on the hop. There was then a furious battle in Queensland seeking to influence Government views and public opinion- the Australian Christian Lobby who very much supported what the Attorney wanted to do, and others including Queenslanders for Equality, of which I was convenor, and the Labor Opposition, who wanted no change so that the law remained non-discriminatory.

By April 2014, the Government's position had seemingly changed. Sources told the Brisbane Times that the policy was dead and buried. The formal position of the Government remained the same- that the Government was considering the position and that there was no fixed position of the Government. That remains the Government's formal position.

I had been told by a senior government source that the Premier was strongly opposed to the proposal, but that the Attorney-General remained strongly in favour of the change, and if given the opportunity would revive the proposal. 

It is quite possible, if the polls are to be believed that:

  • the Premier will not be re-elected for Ashgrove
  • the Government will have a small majority
  • the Attorney will be re-elected in his seat
  • without the veto of the Premier, the Attorney may be able to persuade his fellow LNP MP's that the surrogacy laws ought be changed.
Tonight I attended the LGBTI forum between the candidates for Brisbane Central, including current LNP MP Rob Cavallucci, and former ALP MP Grace Grace. In response to my question about whether the Government's formal position matched its policy, Mr Cavallucci made it plain that he had strongly lobbied Government Ministers against the proposal, and as far as he was concerned the proposal is dead and buried. That may well be the case, but it is not formal Government policy. 

Will Mr Newman publicly state that the policy is dead and buried, and that there will categorically be no changes to the Surrogacy Act during the next term of Parliament to ban surrogacy for single, gay and lesbian intended parents? Hopefully we will know in the next two weeks.

LGBTI ask the candidates tonight



Tonight there will be a candidates’ forum for the candidates for Brisbane Central to discuss their response to LGBTI issues. The candidates include the LNP member Rob Cavallucci and ALP candidate and former member Grace Grace.

The forum is at 6.45pm at the Sportsman's Hotel, Spring Hill.

It made me think of what changes there ought to be, and came up with this list:
·         A commitment to equal treatment of all of our citizens under the law, irrespective of their sexuality, gender, relationship status and sexual orientation. This seems to have been one of the bases of our democracy since its inception, but at times it seems to be honoured in the breach than the observance.
·         A commitment to same sex marriage. Yes, I know it is not a state but a federal issue, but the more commitment that there is by prominent party members to change, the higher the chance that change federally will happen sooner rather than later.
·         A commitment to ensure non-discrimination in surrogacy.  The Surrogacy Act, enacted when the ALP was in power, does not discriminate against single, gay or lesbian intended parents. In 2012 Jarrod Bleijie announced that it was going to be changed so that single, gay and lesbian parents could not access surrogacy (and would be punished if they tried). As convenor of Queenslanders for Equality, I lobbied against the proposed changes. The ALP backed the fight against the changes, as did local member Rob Cavallucci. By 2013 the Government reportedly quietly shelved the proposal, but the formal position of the Government has remained -  that the proposal is being considered. The only consideration that should be given to the proposal at this stage is that it ought to be dumped. Given that the Premier went to the last State election saying that there would be no change to surrogacy laws, and then the Attorney took a different position, resulting in a great tumult about what the Government’s position was, clarity is essential.
·         A preparedness to consider commercial surrogacy, and not prosecute those who go overseas. Gay couples in particular are especially in need of surrogacy. The reality is that many go overseas because the rules here make surrogacy here so difficult. The Chief Justice of the Family Court, Diana Bryant, and the Chief Judge of the Federal Circuit Court, John Pascoe, have called for the abolition of rules criminalising those going overseas for commercial surrogacy, and called for an inquiry about compensated surrogacy in Australia. Although hundreds of Queenslanders have gone overseas for commercial surrogacy, not one person has yet been prosecuted, making the laws to be a mockery.
·         A removal of discrimination about adoption. The fact that adoption rates have crashed to their lowest ever is beside the point. The Adoption Act should not discriminate. It does. The only people allowed to adopt are married or heterosexual de facto couples. Single and gay and lesbian couples are good enough to be foster carers, but bizarrely not good enough to adopt. The discrimination, which appears not be based on anything but prejudice, ought to go.
·         Equal age of consent. When Wayne Goss in 1990 decriminalised gay sex, it was a great leap forward. Now in 2014, Queensland is behind every other state and territory. Why is it all right for the age of consent to be 16, except when it comes to anal sex, where it is 18? There appears to be no logic for the difference.
·         Gay panic defence. A commitment in accordance with calls by law academic Dr Alan Berman to get rid of gay panic defence. Just because someone comes onto you sexually (even without touching you) is no excuse for killing them. Currently it might be. It ought to go.
·         Removal of discrimination in employment. When Peter Beattie got rid of most discrimination against LGBTI people in Queensland law in 2002, the churches kicked up a stink to make sure that teachers who were gay or lesbian could be sacked, based on their sexuality. There are no doubt many gay or lesbian teachers- whose jobs are at risk because of this antiquated rule. Again, there is no logic and it ought to go.
·         Fixing up the mess for trans people altering their birth certificates. Changes many years ago means that a trans person can get the gender changes on their birth certificates, via a convoluted process- but only if they are not married! If they are married, and want to get it changed, they have to divorce, a process that is not just nuts, but also harsh.
·         The ability to have public ceremonies for civil partnerships. The Bligh government enacted civil partnerships as a dying act. Newman did not repeal them, but got rid of their public aspect. Why can’t a couple celebrate their love, in public?
·         Adequate funding for HIV prevention and support services. One of the controversies shortly after being elected was the stripping by Lawrence Springborg of QAC’s funding. Since then the HIV Foundation has been set up- but infection rates remain stubbornly on the rise. The funding of HIV prevention and support services should not be the political football, but should be supported in as bipartisan way as possible to help prevent the spread of the disease, and to help those who have HIV/Aids.