Saturday, 31 May 2008

First Step Taken to end Same Sex Discrimination

Attorney-General Robert McClelland has introduced amendments to remove same-sex discrimination from Acts governing Commonwealth superannuation schemes.
“The speedy introduction and passage of these long overdue reforms would ensure that from 1 July, same-sex couples and their children will be treated equally in the operation of Commonwealth superannuation schemes,” Mr McClelland said.
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008 makes amendments so that same-sex couples are no longer denied the payment of death benefits from superannuation schemes or the tax concessions on death benefits currently made available to opposite-sex couples.
These significant changes will shortly be followed by further reforms that will end same-sex discrimination in a wide range of Commonwealth laws.
“In areas such as social security, tax and veterans’ affairs, the reforms will be phased-in to allow time for couples to adjust their finances, and for administrative arrangements to be implemented,’ Mr McClelland said.
“In keeping with the Government’s election commitment, the changes do not alter marriage laws. They will make a practical difference to the everyday lives of a group of our fellow Australians who have suffered discrimination under Commonwealth laws for far too long.”

“The Opposition has indicated it supports the reforms. Their cooperation would ensure the passage of this legislation so it can commence on 1 July, Mr McClelland said.
All changes are expected to be implemented by mid-2009.

The Acts governing the following superannuation schemes will be amended by the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008:
· the Commonwealth Superannuation Scheme
· the scheme under the Superannuation Act 1922
· the Defence Force Retirement and Death Benefits Scheme
· the Defence Forces Retirement Benefits Scheme
· the Judges' Pensions Scheme
· the Federal Magistrates Disability and Death Benefits Scheme
· the Governor-General Pension Scheme, and
· the Parliamentary Contributory Superannuation Scheme.
Other Commonwealth superannuation schemes, such as the Military Superannuation and Benefits Scheme and the Public Sector Superannuation Scheme, will be amended by delegated legislation.

Source: Ministerial Media Release

UNAIDS calls for removal of HIV/AIDS travel restrictions

The United Nations Joint Programme on HIV/AIDS (UNAIDS) has called for removal of HIV/AIDS travel restrictions. Currently 74 countries, including the US, have some form of HIV/AIDS travel restriction.

UNAIDS said:
HIV-related travel restrictions
have no public health justification...(W)here such restrictions are based
on HIV status alone, they are discriminatory. There is no need to single out HIV for specific consideration as an exclusion criterion. All comparable health conditions should be treated alike in terms of any concerns about potential economic costs relating to the health care of the individual involved. Valid human rights or humanitarian claims, such as asylum or family reunification, should override cost concerns. Where deportation does occur in relation to HIV status, confidentiality of medical information should be maintained and due process provided in accordance with international human rights law.

Link to UNAIDS

Sunday, 25 May 2008

Case: Sex Change Therapy Approved: “They just suffer out there, I think.”

The Family Court in Re Brodie (Special Medical Procedure) has approved drugs to delay puberty to be given to a 12 year old girl, who considered that she was a boy.

If therapy remains in place, and her doctors are of the view in about a year that it will be appropriate to have testosterone, then a further application will need to be made to the court to allow the testosterone to be administered.

The application for the drug treatment and psychotherapy was with the approval of three experts and with the agreement of the mother, the independent children's lawyer and the Public Advocate, who acted as a friend of the court.

The treatment was opposed by Brodie's dad, who did not appear at the trial, but recognised that Brodie considered herself a boy. The father thought that, aged 12, Brodie was too young to be able to make the decision about her gender and should have more time.

One of the doctors said: "In transsexual teenagers, it is known that menstruation is a time of greatly increased stress that can lead to self-harm. Suppression of menses is therefore highly desirable to prevent acute and recurring psychological distress."

Brodie had been dressing as a boy for some years, presented as a boy and was recognised by both parents and her sister as a boy.

The court also ordered for Brodie to be able to change her name, have her birth certificate altered, have a learner's permit issued in the new name and a new Medicare card in the new name.

His Honour said:

Brodie is fortunate in the sense that the medical team has approached this matter with sensitivity and with reflection.

She is also fortunate in the sense that the treatment can commence at an early time, something which is not always open to young persons who have the same condition.
I asked Professor W myself about the frequency of this condition. As it happens there had been a meeting shortly before the hearing with a psychiatrist who runs the Gender Identity Clinic at Monash Medical Centre which only caters for adults. Professor W told me that this Clinic had had 80 new patients in the 2007 calendar year alone. Professor W had asked the psychiatrist for her views about the age at which those people would have sought attention had there been a clinic for younger people and was told that all of them would have done so. He went on to say that it was possible therefore that 80 teenagers a year might be seeking help if they knew that there was help available. He said that this was a great surprise because in his experience only a small number “trickle through” and it therefore appeared to be quite rare. Perhaps this was not the case.

I therefore asked Professor W what happened to those people and his telling response was: “They just suffer out there, I think.”

NSW Bill to amend numerous Acts

NSW Attorney-General John Hatzistergos has now put the bill before the Parliament to allow lesbian couples to both be recognised as parents on the their child's birth certificates.

The Miscellaneous Acts (Same Sex relationships)Bill 2008 also amends numerous other bills, to remove discrimination in NSW law so that there is a clear defintion of "spouse" which includes same sex couples and de facto couples.

Lesbian parenting amendments

In an Australian first, the Bill, if passed, will contain the the following presumption:

When a woman who is in a de facto relationship with another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.

The key term, of course, is "fertilisation procedure". Having sex with a man will still result in his being presumed to be the father.

The amendments are retrospective to when the child was born, although there are exceptions,including for wills executed before commencement.

Changes to other Acts

All up 55 pieces of legislation or regulation are altered so that there is a consistent definition of "spouse". This includes the following legislation:
-Charles Sturt University By-Law
-Co-operative Housing and Starr-Bowkett Societies Act
-Greyhound and Harness Racing Administration Act
-Industrial Relations Act
-Irrigation Areas (Reduction of Rents) Act
-Sydney Cricket and Sports Ground Act
-Water Industry Competition Act

Saturday, 24 May 2008

Commonwealth now pushing forward with de facto property reform

According to The Australian, the Commonwealth, under Attorney-General Robert McClelland, is now pushing ahead with property reforms so that de facto property matters (including same sex couples) are dealt with in the Family Court and Federal Magistrates Court.

The Australian, it might be noted has got it wrong. It is not childless couples only who cannot access the Family Court now. Any de facto couples, who are arguing about property matters cannot now bring their property matters to the Family Court, irrespective of whether they have children.

The problem will be to see whether it actually happens. John Howard had previously also announced this change, but like Brer Bear got caught with the tar baby.

John Howard proposed to remove the current two tier property scheme ie married couples under the Family Law Act and non-married couples under State and Territory legislation. However, he proposed that there be a different two tier scheme- married and heterosexual couples under the Family Law Act, but same sex couples arguing over property would remain in the State and Territory jurisdiction.

To enable his scheme to get up, Howard needed the co-operation of the States. That just didn't happen. Some States, such as NSW and Queensland grumbled about the unfairness of it all, but passed legislation to allow half the scheme (ie for heterosexual couples) to start, but South Australia and Western Australia just said no. So there it has sat, in limbo till now.

The real test for Robert McClelland will be herding the cats and persuade all the States to go along with one national scheme. Let's see how it unfolds.

Focus on children: recognition for you as a parent

If you and your partner have a child together through IVF or surrogacy, then one of the issues that jumps out is: how are both of you recognised as parents? It may be easy for straight couples, but for same-sex couples, there is a legal nightmare.

If the child is from overseas, then the child may be covered under inter-country adoptions or even have both of you recognised on the birth certificate.

And in NSW if you are a lesbian couple, you might both be recognised on the birth certificate.

But what if you're none of these?

There are immediately two legal options open to you:

1. Family Law Act
2. Adoption

Orders for decisions concerning long term care and where the children live (or adoption orders) is essential to avoid what was alleged to have occurred in Verner and Vine where two women lived under the one roof together, bought a house together and told the IVF clinic that they were a lesbian couple, which resulted in the mother becoming pregnant. Their friendship soured and the mother married, having a child by her husband. Her former friend, who was unrepresented at court, sought to spend time with the child, on the basis that they were in a lesbian relationship, a notion rejected by the judge (a woman) who went on to say that it was not in the interests of the child for the former friend to spend time with the child.

Family Law Act

It is possible to obtain what used to be called a custody order or residence order in the Family Court. I say "possible" as there is only one reported decision and it was by a single judge, so is not binding on other judges.

The case, Re Mark involved a gay couple who had been to a clinic in California where thanks to the wonders of modern technology one of the partners had fathered a child. Both partners wanted to recognise that they were equally responsible for the child, Mark.

The Family Court ordered that they both have equal responsibility for Mark.

Adoption orders

But what if it's OK for you to get an order about parental responsibility, but you want an order recognising you as a parent? The only way to do that is to get an adoption order.

The only reported case of a same-sex adoption was in Western Australia last year, with a gay couple being chosen to adopt a young child.

However, although no doubt difficult and expensive, it may not be impossible.

I will give the example of my home state, Queensland. In Queensland as a general rule because of the Adoption of Children Regulations 1999, ordinarily to be eligible to adopt a person must be married for 2 years.

However, the Adoption of Children Act 1964 preserves the ability of the Supreme Court of Queensland to make adoption orders- in effect without the restrictions of the legislation.

In theory, a gay or lesbian couple could obtain an adoption order, so as to enable both to be recognised as parents.

As far as I am aware, this has never been done in Australia.

However, it does not make it an impossibility. This is because it has happened in the USA. As long ago as 1993, in the Adoption of Susan and a companion case, Adoption of Tammy, the Massachusetts Supreme Judicial Court ruled that the unmarried partner of a child’s biological parent can adopt the child and become a second legal parent without the biological parent giving up his or her rights, a case run by the local advocacy group,

As GLAD comments:
The common thread connecting these decisions—and subsequent legislation and court decisions throughout the [US]—is the recognition that, quite simply, adoption is good for kids. The legal, financial, and emotional security of having two legal parents clearly and unequivocally is in a child’s best interest.

Tuesday, 20 May 2008

Qld: Review of Altruistic Surrogacy

Linda Lavarch
Qld: Review of Altruistic Surrogacy

Last year the then Commonwealth Attorney-General, Phillip Ruddock called for uniformity between the States over surrogacy laws, so that the current mess might be fixed. Currently there are varying shades between that of New South Wales where there has been no regulation of surrogacy and that of Queensland where all forms of surrogacy are illegal and are criminal offences,including that of altruistic surrogacy.

Victoria, Western Australia, South Australia, Tasmania and now Queensland have announced reviews.

That of Queensland is by the Parliament's Altruistic Surrogacy Committee chaired by former Attorney-general, Linda Lavarch.

Here is the Issues Paper (lightly edited by me) released by the Committee:


The committee has published this paper to inform consideration of the issues regarding altruistic surrogacy in Queensland.
The committee invites interested groups and individuals to make public submissions to the investigation based on the
questions posed, terms of reference below and any other matters considered relevant. The committee will give consideration
to all written submissions when writing its report and formulating its recommendations to Parliament.
On 14 February 2008, the Legislative Assembly resolved
that a select committee to be known as the Investigation
into Altruistic Surrogacy Committee be appointed to
investigate and report to the Parliament on the possible
decriminalisation and regulation of altruistic surrogacy in
Queensland. The committee commenced on 26 February
The committee’s terms of reference require it to
investigate and report on the following matters:
a. Should altruistic surrogacy be decriminalised in
b. If so:
 What role should the Queensland Government play in
regulating altruistic surrogacy arrangements in
 What criteria, if any, should the commissioning
parent/s and/or surrogate have to meet before
entering into an altruistic surrogacy arrangement?
 What role should a genetic relationship between the
child and the commissioning parent/s and/or
surrogate play in any altruistic surrogacy
 What legal rights and responsibilities should be
imposed upon the commissioning parent/s and/or
 What rights should a child born through an altruistic
surrogacy arrangement have to access information
relating to his or her genetic parentage? Who should
hold this information?
 What, if any, other matters should be considered in
the regulation of this issue?
The committee’s terms of reference exclude consideration
of commercial surrogacy, which is illegal throughout
The committee is required to report to the Legislative
Assembly by 30 September 2008.
6 May 2008 Issues paper released calling for
13 June 2008 Closing date for submissions
16 June – mid-August Public consultation
30 September 2008 Report to Parliament

Queensland is the only Australian state in which altruistic
surrogacy is a criminal offence. The Surrogate Parenthood
Act 1988 (Qld) makes it an offence to enter into, or offer to
enter into, a surrogacy contract, whether commercial or
altruistic, and whether or not the offence occurs in
Queensland or elsewhere. Offences against the Act can
attract a maximum penalty of $7,500 or 3 years

In all other Australian states and territories altruistic
surrogacy is permitted. However, each jurisdiction
approaches the regulation of surrogacy in different ways.
The status of surrogacy in Queensland has been
examined previously. In February 1983, the Queensland
Government appointed a ‘special committee’ to inquire
into laws relating to artificial insemination; in vitrofertilisation
(IVF); and other related matters, including
surrogacy. The special committee, chaired by the Hon
Justice Demack, reported in March 1984. It recommended
that whilst altruistic surrogacy contracts should be void or
legally unenforceable, entering into them should not be a
criminal offence.

However, the Queensland Parliament legislated to prohibit
all forms of surrogacy in 1988. It was argued that:
 it was dehumanising to use and pay another human
being to reproduce;
 babies must not be used as commodities; and
 Queensland should seek to avoid the trauma and
legal battles associated with surrogacy in other

The issue was again canvassed by a Taskforce on
Women and the Criminal Code. In its report, released in
2001, the taskforce noted the range of community views
on the matter. Although the taskforce was divided on
some issues, it took a consensus view that the Surrogate
Parenthood Act 1988 be amended to remove the sanction
on altruistic surrogacy as:
it was generally felt inappropriate and unhelpful to
involve the criminal justice system in this intensely
private matter between relatives and friends.

It also recognised that, if surrogacy agreements were to
be permitted in Queensland, the extent to which they
should be regulated would need to be addressed. The
Government did not support the taskforce
recommendations regarding surrogacy at that time.
A review of surrogacy laws is currently occurring in a
number of Australian jurisdictions.

On 14 February 2008, Hon Anna Bligh MP, Premier of
Queensland, tabled a briefing paper outlining a case for
reform and stated that “the Queensland Government
believes the time has come to decriminalise altruistic
surrogacy”. The Premier called for the establishment of
this committee to further examine whether altruistic
surrogacy should be decriminalised and what regulation
might be desirable.

The Victorian, South Australian (SA), Western Australian
(WA) and Tasmanian parliaments are currently giving
consideration to revising their surrogacy laws:
 The Victorian Law Reform Commission (VLRC)
delivered its Assisted Reproductive Technology and
Adoption Final Report in March 2007;
 The WA Surrogacy Bill 2007 is currently being
reviewed by the Legislative Council Standing
Committee on Legislation, due to report on 8 May
 The SA Social Development Committee (‘SA
committee’) completed its Inquiry into Gestational
Surrogacy in November 2007; and
 The Tasmanian Legislative Council announced a
select committee inquiry into surrogacy on 1 April

Nationally uniform legislation to regulate surrogacy is also
under consideration by the Standing Committee of
Attorneys-General (SCAG).

There are a number of factors influencing this renewed
 Very few Australian-born children are now available
for adoption (only 14 locally born children were
adopted in Queensland in 2006-07);
 There has been an increased use and social
acceptance of infertility treatment or assisted
reproductive technology (ART) over the last decade;9
 There is greater social recognition of the diversity of
family types raising children, including extended,
nuclear and blended families and families headed by
single parents and same-sex couples.
Some of the impetus for reform also appears to have
come from those concerned about a lack of legal
recognition of parents and children in surrogacy
arrangements. It is suggested that this can lead to
practical difficulties, for example, in relation to passport
applications, medical treatment, eligibility for child support
if commissioning parents separate, eligibility for social
security and taxation allowances and inheritance.

For the purposes of this issues paper, surrogacy is
defined as a clear agreement whether formal or informal,
between a surrogate and commissioning parent/s for the
surrogate to bear a child for the commissioning parent/s
and permanently transfer the responsibility for the child’s
care and upbringing to them after the child’s birth. (Refer
to Question 10.)
The surrogate (or surrogate mother) is the woman who
bears the child. The commissioning parent/s is the person
or couple that asks a woman to act as a surrogate. See
Appendix B for a list of terminology used in relation to
surrogacy and abbreviations used in this paper.
As distinct from a commercial surrogacy arrangement, a
surrogate undertaking an altruistic surrogacy arrangement
is not motivated by material gain, but by a desire to help
others become parents. In many cases, the surrogate is a
close relative or friend of the commissioning parents.
In Queensland, the prohibitions under the Surrogate
Parenthood Act 1988 apply to situations where a woman
becomes pregnant pursuant to a (pre-pregnancy)
surrogacy contract and also to cases where a woman is
already pregnant and then agrees (pre-birth) to give the
child away.

Prior to the passing of the Act, Hon P McKecnhie MP
stated in his second reading speech of the Surrogate
Parenthood Bill that “the purpose of the bill is to make all
arrangements relating to surrogacy illegal in
Queensland”. Accordingly, the Act attempts to capture
every arrangement that resembles a surrogacy contract
and prohibit it.

An agreement made during pregnancy to bear the child
and permanently transfer responsibility for its care and
upbringing to another party may also be considered a
private adoption. Private adoptions are also prohibited
under the Adoption of Children Act 1964 (Qld).

The concept of surrogacy is not new. Native Americans,
West Africans, Pacific Islanders and Torres Strait
Islanders all have customary practices that involve child
rearing by parties other than the birth parents.

Queensland is the only Australian jurisdiction where
altruistic surrogacy is a criminal offence. Whilst the laws in
most jurisdictions (such as Victoria, SA and Tasmania)
prohibit commercial surrogacy, they do not consider
altruistic surrogacy an offence. Currently, in some
Australian jurisdictions (such as New South Wales (NSW),
WA and Northern Territory (NT)) there are no specific laws
around the practice of surrogacy. However, altruistic
surrogacy is regulated by industry standards for fertility
clinics and the National Health and Medical Research
Council (NHMRC) guidelines. In SA, altruistic surrogacy
is decriminalised in the sense that, whilst altruistic
surrogacy contracts are illegal, entering into them is not a
criminal offence.

The main rationale for sanctioning activities through
legislation is the prevention of harm to innocent parties. In
its review of research on the outcomes of surrogacy
arrangements, particularly regarding the outcomes for the
children born of these arrangements, the VLRC concluded
there was minimal available research to date to determine
whether or not there may be substantial harm to the
parties involved over the longer term.

The VLRC report described research undertaken in the
United Kingdom that focused on the effects of surrogacy
on the commissioning parents, surrogate and infant. This
study found that:
 generally the commissioning parents did not consider
the experience problematic;
 relationships between the commissioning parents and
surrogate were generally good and involved minimal
 the majority of couples maintained contact with the
surrogate after the birth;
 there was greater psychological wellbeing and
adaptation to parenthood in commissioning parents
than in natural-conception parents; and
 there was no difference to other family types in infant
temperament, or child psychological development at
three years old.

However, some question remains around whether this
study involved a representative sample, so the results
should be interpreted with caution.

It is difficult to estimate the extent to which altruistic
surrogacy arrangements are occurring in Queensland.

The committee has identified five reported court cases for
surrogacy since the Act commenced. Additionally, the
Taskforce on Women and the Criminal Code received a
confidential submission from a Queensland couple
seeking a surrogacy arrangement in Canberra. The
committee is also aware of a newspaper report indicating
that Queenslanders may be travelling interstate to pursue
surrogacy arrangements.

It seems that the criminal prohibition of surrogacy in
Queensland may have been intended to act as a deterrent
rather than a severe punishment of the parties involved in
surrogacy. None of the individuals charged under the
Surrogate Parenthood Act have received severe penalties.
In most cases, the charges were dismissed and no
conviction was recorded. One woman received a good
behaviour bond for her involvement in arranging a
surrogacy agreement.

A case heard in 1998 by the
Family Court in Brisbane dealt with a custody dispute
involving a child born through a surrogacy arrangement. In
this case, no charges were laid under the Surrogate
Parenthood Act.

Despite the minimal penalties issued by the courts to date,
the criminal prohibition of surrogacy in Queensland still
has the potential to draw families into the criminal justice
system and severely penalise the parties to altruistic
surrogacy agreements.

The committee is seeking community views in weighing up
• potential risks and moral issues associated with
altruistic surrogacy arrangements;
 potential benefits to people who are otherwise unable
to have children;
 impact of stigmatising and criminalising people who
seek to have a family through altruistic surrogacy; and
 importance of responding to practical difficulties (such
as the legal recognition of commissioning parents)
that may be associated with surrogacy arrangements.

Issues for comment:
1. Should the legal restrictions and criminal penalties against
altruistic surrogacy be removed from the Surrogate
Parenthood Act 1988 (Qld)?
In examining proposed or recent legal and regulatory
reform regarding surrogacy in Australia, it appears that
there is a focus on two points of intervention. These are
when the parties:
 access ART services; and/or
 seek to transfer legal parentage from the surrogate or
birth mother to the commissioning parents after birth.
Where people seeking a surrogacy arrangement require
medical assistance, for example, with an embryo
transplant or screening procedures, they will inevitably
approach a fertility clinic. Governments can require clinics
to conform to eligibility criteria and codes of practice as
part of their licensing agreement. As is proposed in
Victoria, these criteria could be used in surrogacy cases,
to require prior clearance from a clinical ethics

Attaching conditions to access to ART services offers an
opportunity to limit or guide the surrogacy arrangement
before a baby is conceived. However, the limitation with
this focus on regulating surrogacy through access to ART
is that not all surrogacy cases may require medical
assistance. This has led to some jurisdictions only
permitting surrogacy when the parties use ART.

In Australia, there is limited capacity within adoption laws
to enable the transfer of legal parentage in the case of
surrogacy. There is also a commonly held presumption
that the birth mother is the legal parent of a child. This has
meant that governments in Australia have been
encouraged to develop specific provisions for the transfer
of legal parentage in the case of surrogacy.

This focus on the need to transfer legal parentage
appears to have shaped the development of a regulatory
regime that applies after the birth of the baby. In the
Australian Capital Territory (ACT) for example, existing
parentage laws have been amended, and in WA specific
surrogacy legislation is proposed, to give Courts the
responsibility to withhold the transfer of legal parentage
unless certain eligibility criteria have been met. This might
function as an incentive for compliance. However, it may
be difficult for parties to retrospectively comply with the
criteria if, for example, they did not rely on ART services.
In embarking on any regulatory reform, state and territory
governments may consider the role of family law in
clarifying parenting arrangements. The Family Court of
Australia has been used in surrogacy cases to resolve
disputes over a child’s residency after birth.25
Commissioning parents may also access family law
parenting orders, which detail, for example, who a child
lives with, contact and day-to-day care arrangements and
approaches to a child’s welfare and development.26
Parenting orders do not, however, change the legal status
of the birth parent or surrogate.


The committee has been asked to investigate, if altruistic
surrogacy is decriminalised, whether and to what extent
the Government should play a regulatory role in surrogacy
arrangements. A review of approaches in place or being
considered in other jurisdictions indicates the emergence
of some key principles underpinning the regulation of
altruistic surrogacy, as follows:
(i) The best interests of the child should be the primary
It is generally agreed that the child is the most vulnerable
person in a surrogacy arrangement. The principle of the
best interests of the child underpins both family law and
child protection policy and is grounded in international
commitments. For example:
 Article 25 (2) of the United Nations Declaration of
Human Rights (1948) states:
…childhood [is] entitled to special care and
assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection; and
 Article 3 of the United Nations Convention on the
Rights of the Child (1989) states:
In all actions concerning children, whether undertaken
by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary
consideration; and
…parties [to the convention] undertake to ensure the
child such protection and care as is necessary for his
or her well-being, taking into account the rights and
duties of his and her parents, legal guardians or other
individuals legally responsible for him or her, and to
this end, shall take all appropriate legislative and
administrative measures.

The principle of the best interests of the child might
include recognition of a child’s need for a safe, secure
family environment and a sense of clear identity and
belonging, and loving, nurturing relationships.

In practice, pursuit of this principle could also mean
governments acting to protect a child’s right to information
about his/her genetic history and the circumstances of
their birth.
(ii) Intrusion into people’s private lives is kept to a
Decisions to have a baby, to become parents and to raise
children are intensely personal. People generally expect
that these are matters only to be shared with closest
family and friends. In response to this norm, this principle
seeks to minimise government intrusion into people’s
private lives in the regulation of altruistic surrogacy.
(iii) Health and wellbeing of the surrogate, the
commissioning parents and their families is protected and

While altruistic surrogacy may have many positive
outcomes for commissioning parents, this principle
recognises that there are risks to the health and wellbeing
of the parties to surrogacy arrangements (i.e. the
surrogate or birth mother, her partner and the
commissioning parents) and their families (e.g. siblings
and grandparents).

Governments can develop policy and laws that help to
minimise the potential risks. For example, this principle is
consistent with the NHMRC guidelines for ART which take
account of the “long-term health and psychosocial welfare
of all participants” including children, parents and donors
when accepting parties to participate in ART.

(iv) Conflict between the surrogate and the
commissioning parents is prevented and minimised.
There are many difficult issues which can arise in the
course of a surrogacy arrangement for the parties to the
agreement and their families. Some of the issues include:
 medical complications during pregnancy and birth and
the management of the pregnancy;
 the impact of relinquishment on the surrogate and her
 the potential birth of a child with a disability;
 the need to clarify legal parentage;
 ongoing communication between the surrogate and
 liability for child support; and
 the child’s right to access information about their
genetic history and circumstances of birth.
Other jurisdictions believe that governments can play a
role in preventing and minimising conflict between the
parties in relation to such issues.

In practice, the protection of the parties’ health and
wellbeing and the minimisation of conflict could include a
requirement for informed consent and mandatory,
independent counselling for all parties to an agreement. It
could also include the Government making a provision for
the transfer of legal parentage from the surrogate to the
commissioning parents, with or without certain conditions.
Issues for comment:

2. Should the Queensland Government play a role in
regulating altruistic surrogacy arrangements in
Queensland? If so, how can the Government regulate
altruistic surrogacy arrangements in a way that:
 ensures that the best interests of the child are
 minimises intrusion into people’s private lives;
 protects the health and wellbeing of all parties; and/or
 ensures that any conflict between the surrogate and
the commissioning parents is prevented or minimised?

3. What other issues should be addressed by the


The committee has been asked to consider whether
commissioning parents and/or surrogates should have to
meet certain criteria in order to enter into a surrogacy
arrangement. When identifying such criteria there is a
need to give careful consideration to the:
 purpose or benefits of imposing a specific criterion;
 practicality of monitoring and enforcing a criterion;
 possible unintended consequences of a criterion.
As previously noted, regulatory criteria are often attached
as conditions for access to ART services or for the
transfer of legal parentage from the surrogate to the
commissioning parents.
Some of the criteria for commissioning parents or
surrogates being implemented or explored across
Australia are detailed below:
Specific criteria for commissioning parents
Two commonly held criteria for commissioning parents
 infertility, health risk associated with bearing a child,
or concern with passing on a genetic condition with
serious health impacts;30 and
 a requirement that they are at least 18 years of age.31
There are some differences in approach across
jurisdictions in relation to the genetic contribution required
and the eligibility of certain family types:
 Genetic contribution: In the ACT, at least one
commissioning parent must be biologically related to
the child. Other jurisdictions that permit surrogacy
do not have this requirement; and
 Family types: The ACT requires commissioning
parents to be a couple. The Surrogacy Bill 2007 in
WA proposes that single women may also be eligible
as commissioning parents if they meet ART eligibility
requirements. The reports of the VLRC and the SA
committee support a non-discriminatory approach,
irrespective of relationship, marital status or sexual
Specific criteria for surrogates
There is a clear move in SA, Victoria and WA towards the
removal of the current requirement for surrogates to be
infertile to access ART. This requirement has limited
individuals’ access to surrogacy in these states and has
forced people to travel interstate to undertake ART
The VLRC report proposed that the surrogate mother
should be at least 25 years of age.
The ACT only allows the transfer of legal parentage from
the surrogate to the commissioning parents when the
surrogate has conceived through IVF and is not the
genetic mother.
Some consideration has also been given to whether
surrogates need to have previously given birth or
completed their own family. It has also been suggested
that choice of a surrogate who is a sister, mother, cousin
or long standing friend may help prevent conflict and
strengthen existing relationships.

Common criteria for commissioning parents and
Some of the current or proposed criteria for both
commissioning parents and surrogates include:
 demonstration of informed consent through specialist
counselling and independent legal advice;
 the need for surrogacy arrangements to be agreed
 a requirement that parties are resident in the
jurisdiction; and
 the exclusion of parties convicted of sexual or violent
offences or subject to a child protection order, without
specific assessment and approval.
Queensland adoption requirements
Requirements for adoptive parents might also be relevant
to the development of criteria for commissioning parents.
These requirements include:
 Prospective parents must be heterosexual couples
who have been married for at least 2 years;
 At least one of the prospective parents must be an
Australian citizen and both must be resident in
 They must not have a physical or mental condition, or
disability, which would impact on their capacity to
provide a high level of stable, long term care for a
 They must have no more than one child in their
custody; and
 They must be deemed infertile.
Assessing criteria
The following is an example of the way criteria might be
assessed. Using an age requirement for surrogates,
considerations regarding the benefits, monitoring and
enforcement and consequences of imposing age
restrictions might suggest:
 Benefits: Age may be only one factor in indicating
health or sufficient maturity to make a decision to
enter a surrogacy arrangement. The preparedness of
individuals may be better determined through
counselling or a medical examination;
 Monitoring and enforcement: It may be difficult to
monitor and enforce age criteria before becoming
surrogates other than when accessing an ART
service; and
 Consequences: It could be argued that people who
fall outside of the age criteria who have had a
previous pregnancy, for instance, may be considered
more capable of informed consent than people who
have not had children. It needs to be considered
whether failure to meet an age criteria should
preclude the transfer of legal parentage of the child to
the commissioning parents.
Issues for comment:
4. What criteria, if any, should the commissioning parent/s
and/or surrogate have to meet before entering into an
altruistic surrogacy arrangement?
In responding to this question, please outline:
 the reason for your choice;
 how you believe criteria could be monitored and
 any consequences or dilemmas you see in adopting
the criteria; and
 any suggestions you may have to manage any of the
issues identified.
5. Should criteria for commissioning parents be similar to that
for adoptive parents?

There are a number of genetic relationships that are
possible within surrogacy arrangements.
In partial surrogacy, the surrogate is the genetic mother as
she contributes her gametes, which may be fertilised by
gametes from the commissioning father or a donor.
In gestational (or full) surrogacy, the surrogate mother
carries (or gestates) a baby which is not genetically her
own. The baby is created by gametes from the
commissioning parents or donors.
In a gestational surrogacy arrangement, one or both of the
commissioning parents could be the child’s genetic parent.
In a partial surrogacy arrangement, the commissioning
father could be a genetic parent.
Surrogacy arrangements may create very complex family
relationships. For instance, if both commissioning parents
are infertile, there may be six people involved: two donors,
the commissioning parents and surrogate parents.
In considering what role the genetic relationship should
play in an altruistic surrogacy arrangement, it may be
useful to consider whether gestational surrogacy
arrangements have different outcomes from partial
surrogacy arrangements and whether the genetic
relationship should play a role in the transfer of legal

Outcomes of gestational v partial surrogacy arrangements
Research suggests it may be easier for the surrogate
mother to relinquish the child when she is not the genetic
parent. In this situation, the child is not a genetic sibling
of any other child of the surrogate. An Australian study of
gestational surrogates indicated that they were able to
treat the pregnancy differently to previous pregnancies
with their own children. One surrogate explained:
[The baby is] not part of me…It’s their egg, their
sperm…Basically I am just growing it, so it’s no part of
me. I am just helping it grow. I couldn’t do it if it wasn’t
my sister and it was any part of [my partner] and

The VLRC identified examples of gestational and a partial
surrogacy with different outcomes:
Alice Kirkman: Alice Kirkman was born in 1988 in Victoria.
Alice was conceived from an egg from her ‘commissioning’
mother (Maggie Kirkman) which was fertilised with a family
friend’s sperm and carried by Maggie’s sister, Linda. A
hysterectomy had left Maggie Kirkman unable to bear a child
and her husband was infertile. Alice, now an adult, says she
has no concerns about surrogacy.

Evelyn (name withheld to protect parties): The 1998 Australian
Family Law case of Re Evelyn involved a partial surrogacy
arrangement between close friends. Evelyn was conceived
using her surrogate mother’s egg and her commissioning
father’s sperm. Evelyn lived for 12 months in Queensland with
her commissioning parents. However, her surrogate (and
genetic) mother could not relinquish the baby. The Court found
in favour of Evelyn’s surrogate mother and awarded custody of
Evelyn to her.

The VLRC report did not attribute the different outcomes
of these cases to the genetic relationships between the
parties. Instead, it concluded that:
A genetic connection between the child and the
commissioning parent(s) is to be preferred, but
people should not be excluded from commissioning a
surrogacy if they are unable to contribute their own

The VLRC report did not rule out partial surrogacy

Some suggest that partial surrogacy can be less complex.
Where a commissioning mother is unable to contribute
genetically, insisting that the surrogate must not use her
gametes adds another person to the conception equation.
Consideration for transfer of legal parentage
In all Australian jurisdictions, the birth mother is
automatically recognised as the legal parent of a child. In
the case of surrogacy, this means that the surrogate
mother (whether or not she is genetically related) is
considered the legal mother and registered as such on the
child’s birth certificate. Under the Status of Children Act
1978 (Qld), the surrogate mother and her male partner (if
she had one) would be considered the legal parents in a
surrogacy arrangement in Queensland.

Australian jurisdictions also provide that:
 Surrogacy arrangements should not be legally
enforceable (meaning the surrogate mother cannot be
forced to relinquish the baby); and
 The transfer of legal parentage should be conditional
on the approval of the surrogate mother and her
In the ACT, the genetic relationship is important when it
comes to transferring legal parentage to the
commissioning parents. The Parentage Act 2004 only
allows transfer of legal parentage where:
 At least one of the commissioning parents has a
genetic connection to the child; and
 The child was conceived using IVF and the surrogate
is not the genetic mother.This is not the approach proposed by the VLRC which
recommended provisions to allow for the transfer of legal
parentage in surrogacy arrangements that were not
contingent on the genetic contribution of commissioning
The SA committee report on gestational surrogacy
recommended that:
…a process is developed to allow the legal transfer of
parenthood to occur without the need for commissioning
parents to adopt their own genetic child.
This responds to a particular objection from genetic
parents to having to adopt their own genetically-related
Issues for comment:
6. What role should a genetic relationship between the child
and the commissioning parent/s and/or surrogate play in an
altruistic surrogacy arrangement?
In responding to this issue, you might wish to consider any
evidence or experience relevant to:
 the role genetic relationships may play in the
outcomes for the surrogate, commissioning parents
and child;
 the impact of genetic relationships on the legal
parentage of the child; and
 any other relevant matters.
7. Should at least one of the commissioning parents have a
genetic relationship with the child?
8. Should the surrogate be able to use her gametes or should
she have no genetic relationship to the child?

Jurisdictional approaches to the legal rights and
responsibilities of commissioning parents and surrogates
are clearly shaped by principles such as: protecting the
best interests of the child; minimising intrusion into
people’s private lives; promoting the parties’ health and
wellbeing; and preventing and minimising conflict. Again,
consideration of legal rights and responsibilities should
take into account not just the benefits or outcomes sought
but the possibility for monitoring and enforcement and the
consequences for the parties.
Current and proposed legal rights and responsibilities of
parties to a surrogacy arrangement in Australia are
summarised below under the following categories:
 access to ART services and the transfer of legal
 reasonable expenses for surrogates;
 monitoring and enforceability of surrogacy
agreements; and
 access to advertising and brokerage services.
Access to ART services and the transfer of legal
The criteria below shape the rights and responsibilities for
parties in accessing ART services and/or seeking to
transfer legal parentage in other Australian jurisdictions.
As will be seen, there are some differences between
jurisdictions in terms of whether or not the criteria should
apply at both points of regulation.
(i) Fertility and health status:
In Victoria, SA and WA, it is proposed that a prospective
surrogate should be eligible for ART services irrespective
of her fertility status if she has agreed to bear a child for a
commissioning parent who is eligible for such
assistance. This is important because the current
legislation governing ART in these jurisdictions effectively
precludes parties from accessing ART services. Their only
choice is to travel interstate to NSW or the ACT to access
such services.
The WA Surrogacy Bill 2007 also suggests commissioning
parents should demonstrate eligibility for ART services
(i.e. be medically infertile or at risk of transmitting a
genetic disease) in order to approve the transfer of legal
parentage. The VLRC report recommended that
transferring legal parentage should require, amongst other
criteria, that commissioning parent/s be:
unlikely to become pregnant, be able to carry a
pregnancy or give birth; or a commissioning woman is
likely to place her life or health, or that of the baby , at
risk if she becomes pregnant, carries a pregnancy or
gives birth.
(ii) Pre-conception agreement:
The WA Surrogacy Bill 2007 suggests that surrogacy
arrangements should be agreed pre-conception.56
seeks to encourage prior deliberation by the parties to
have a baby through surrogacy. In WA, this is a condition
proposed for the transfer of legal parentage.In the
Queensland context, a requirement for a pre-conception
agreement may be useful in differentiating surrogacy from
private adoption. The regulatory challenge appears to be
where a surrogacy arrangement does not rely on access
to ART services.
(iii) Genetic contribution:
The ACT requires that transfer of legal parentage only
occurs where at least one of the commissioning parents
has a genetic contribution and the surrogate mother has
none. This encourages parties to surrogacy
arrangements to access ART services and meet specific
criteria provided in the Parentage Act 2004. This is not a
requirement proposed in Victoria or WA. Victoria and WA
do not propose that commissioning parents should have a
genetic contribution to access ART or transfer legal
(iv) Age:
It is commonly held that commissioning parents and
surrogates should be at least 18 years old. As noted, the
VLRC report went further and suggested that the
surrogate mother should be at least 25 years of age to
access ART services and to transfer legal parentage.59
Some clinics offering gestational surrogacy services have
also imposed upper age limits for the commissioning (and
genetic) parents (38 years) and the surrogate (40 years).
(v) Demonstration of informed consent:
The NHMRC guidelines for ART currently require a clear
understanding of the ethical, social and legal implications
and counselling to consider the psychosocial significance
for the parties and potential child before enabling a
surrogacy arrangement to proceed.
The SA committee suggested mandatory counselling
according to relevant NHMRC and Australian and New
Zealand Infertility Counsellors Association guidelines in
order to access ART. Similarly, the VLRC report
proposed clearance from a clinical ethics committee
based on a counselling report and acknowledgement from
all parties that they have received all the required
information and advice prior to accessing ART services. It
also specified a comprehensive list of issues to be
covered in counselling.
The VLRC also suggested a previous pregnancy may be
relevant to the assessment of informed consent though it
should not be a criterion for becoming a surrogate
parent. Some fertility clinics engaged in gestational
surrogacy require surrogates to have had at least one
For the transfer of legal parentage to be possible:
 the ACT Parentage Act 2004 requires that both
commissioning parents and the surrogate receive
“appropriate counselling and assessment from an
independent counselling service”;
 The WA Surrogacy Bill 2007 also recommends
independent legal advice in such a case.
The VLRC report, however, did not propose counselling
as a requirement for the transfer of legal parentage. A
requirement for counselling only applied in relation to
access to ART.
(vi) Non-discriminatory access:
The VLRC report recommended that people seeking
access to ART or the transfer of legal parentage must not
be discriminated against on the basis of their sexual
orientation, marital status, race or religion.
The SA committee also supported ART and parentage
legislation “consistent with State and Commonwealth antidiscrimination
The WA Surrogacy Bill 2007 permits the transfer of legal
parentage to those commissioning parents eligible for
ART. This includes single women or heterosexual couples
eligible for ART due to medical infertility or possible
transmission of a genetic disease.
The ACT Parentage Act 2004 only permits the transfer of
parentage where parents are couples, but regardless of
sexual orientation.
The application of a similar approach to that proposed in
WA, SA and Victoria could have implications for other
legislation in Queensland. For example, Queensland law
does not recognise same sex couples as the legal parents
of a child.
(vii) Exclusion of people at risk of child abuse:
The VLRC report proposed to exclude both surrogates
and commissioning parents from ART without specific
assessment and approval where they have been
convicted of sexual or violent offences or have a child
protection order. Risk of child abuse is also proposed as
an exclusionary criterion for the transfer of legal parentage
to the commissioning parents in Victoria.
(viii) Residency:
The ACT Parentage Act 2004 requires, and the WA
Surrogacy Bill 2007 proposes, that commissioning parents
and the surrogate should reside in the jurisdiction. This
may be less relevant if a more uniform approach to the
regulation of surrogacy is implemented in Australia.
Specific conditions for the transfer of legal parentage
Across Australia, other specific conditions applied to, or
proposed for, the transfer of legal parentage include:
(i) Approval of surrogate parents:
All jurisdictions in Australia recognise the rights of the
surrogate to legal parentage at birth irrespective of her
genetic connection to the child. They also require prior
approval by the surrogate for a transfer of legal parentage
to take place. In some jurisdictions, it is proposed that the
transfer should also require the approval of the surrogate’s
partner or at least consideration of her partner’s views.
This position reflects a deep concern to prevent the forced
relinquishment of the child.
(i) Living arrangements:
It is a commonly agreed requirement that the child must
be living with the commissioning parents at the time of the
application for a transfer of legal parentage. This is also
an indication of the surrogate’s willingness to relinquish
the child.
Page 10
(ii) Time limit:
The WA Surrogacy Bill 2007 proposes that an application
for transfer of legal parentage should be lodged no earlier
than 28 days and no longer than six months after the
birth.78 This was also the position of the VLRC. The ACT
has a slight difference with a minimum of six weeks after
birth required for receipt of applications. The minimum
time period is intended to ensure that the birth mother has
time, after the intensity of the birth experience, to reflect
on her surrogacy agreement. The upper limit seeks to
provide certainty to the parties and minimise disruption to
the family.
(iii) Change of child’s name:
WA proposes that commissioning parents will be able to
alter a child’s family name upon transfer of legal
This is also provided for in current ACT law.
(iv) Development of a suitable ‘approval plan’:
The WA Surrogacy Bill 2007 also requires an approval
plan which includes details of:
 any time that the child is to spend, or communication
that the child is to have, with the child’s birth parents
or any other person; and
 any information that any of the parties are to provide
to the other or to any other person.
Reasonable expenses for surrogates
While a surrogate should not materially benefit from her
role in an altruistic surrogacy arrangement, it may be
unreasonable to expect her to lose money through the
expenses associated with the pregnancy and birth.
However, it may be difficult to determine the limit of those
expenses, without the arrangement becoming a
commercial one. Such expenses might include:
 out of pocket heath costs associated with conception,
pregnancy and birth, including health insurance;
 any costs associated with assessment and expert
advice such as counselling and legal advice; and
 income protection, disability and life insurance and
lost earnings.
Monitoring and enforceability of surrogacy agreements
Surrogacy agreements are not legally binding on parties in
any Australian jurisdiction. Once again, this reflects the
commonly held presumption that the birth mother has the
right to keep the child irrespective of her intent in any prior
agreement. A surrogacy contract cannot be enforced the
same way as a commercial contract as children are not
commodities to be bought or sold.
In recent reviews there has been some discussion that
surrogates should be able to enforce the part of the
agreement relating to payment of agreed ‘reasonable’
Access to advertising and brokerage services
Advertising and brokerage services can facilitate the
bringing together of prospective parties to a surrogacy
arrangement. In Queensland, the Surrogate Parenthood
Act 1988 prohibits advertising and brokerage
arrangements. The WA Surrogacy Bill 2007 proposes that
such activities are permissible as long as they are not for
financial reward. In contrast, the ACT Parentage Act
2004 prohibits both the brokering and advertising for
surrogacy arrangements.
Issues for comment:
9. What legal rights and responsibilities should be imposed
upon the commissioning parent/s and/or surrogate?
If relevant, it would be helpful to detail your comments in
relation to the following:
 conditions for access to assisted reproductive
 conditions for transfer of legal parentage;
 reasonable expenses for surrogates;
 monitoring and enforceability of surrogacy
agreements; and
 access to advertising and brokerage services.
10. Should the definition of altruistic surrogacy only include preconception
agreements in Queensland?
11. If infertility and/or health risk to the mother or child is a
criterion for surrogacy, how should these criteria be defined?
12. How well does the transfer of legal parentage in a
surrogacy arrangement fit with contemporary approaches
in family law and adoption?
13. How important is it for there to be a mechanism for the
transfer of legal parentage that is specific to surrogacy
arrangements? What would this be?
14. What are the consequences for children born of a
surrogacy arrangement in Queensland of maintaining the
status quo?
15. Should the surrogate’s rights to be automatically recorded
as the child’s parent on the birth certificate and to approve
legal transfer after birth remain if she has no genetic
connection to the child?
Universally, consideration of the ‘best interests of the
child’ includes a child’s right to access information in
relation to his/her genetic origins and the circumstances of
his/her birth. Article 8 of the United Nations Convention
on the Rights of the Child provides that a child has the
right to:
…preserve his or her identity, including nationality,
name and family relations as recognized by law”; and
Where a child is illegally deprived of some or all of the
elements of his or her identity, ..[states].. shall provide
appropriate assistance and protection, with a view to
re-establishing speedily his or her identity.
Information needs in surrogacy
Depending on the eligibility criteria for commissioning
parents and surrogates, a child born of a surrogacy
arrangement may have no genetic relationship with his/her
commissioning parents. In this case, he/she could be
seeking access to information in relation to:
 his/her genetic siblings; and
 his/her birth mother and her partner.
The committee has been asked to consider the rights a
child born through an altruistic surrogacy arrangement
should have to access information relating to his or her
genetic parentage and where this information should be
Birth certificates
The ACT, SA, WA and Victoria have given careful
consideration to the need to preserve information in
relation to a child’s birth parents as part of the process of
recording the transfer of legal parentage. One of the
arguments in favour of maintaining the birth parents’
presumption of parentage is that it creates a record of a
child’s birth circumstances. The favoured approach in
these jurisdictions is for:
 a long form birth certificate recording both the birth
parents’ and commissioning parents’ details; and
 a short form birth certificate recording only the
commissioning parents’ details. This is considered a
practical option to protect the privacy of both the child
and the other parties.
There is a precedent in Queensland for this approach in
the current arrangements for recording amendments to
birth certificates with respect to adoption.
In all Australian jurisdictions, the relevant Registrar of
Births, Deaths and Marriages is responsible for recording,
updating and releasing birth certificates. A child born from
a surrogacy arrangement could be expected to access
his/her birth certificate at 18 years of age or earlier with
the permission of his/her parents.
Queensland adoption process
When a child is adopted, the child assumes the surname
of their adoptive parents and an amended birth certificate
is issued. The birth certificate records the adoptive parents
as the child’s mother and father.88
The child’s new birth certificate can be purchased by the
adoptive parents from the Registry of Birth, Deaths and
Marriages. The certificate is evidence of their legal
parentage of the child.
The Department of Child Safety holds adoption orders and
details of the parties in an adoption register. Once an
adopted child is 18 years, the Adoption of Children Act
1964 provides that the department may:
 release to birth parents and adopted children the full
name of the child and the child’s adoptive parents at
the date of adoption;
 release the full names and dates of birth parents at
the time of adoption; and/or
 authorise access to the child’s original birth certificate
and amended birth entry through the Registry of
Births, Deaths and Marriages.
Access to donor information
In Queensland, a child’s right to access information about
donors is currently addressed by an NHMRC guideline,
which requires fertility clinics to “Uphold the right to
knowledge of genetic parents and siblings”. Under this
guideline, a person cannot become a donor unless they
consent to the release of identifying information to children
conceived using their genetic material.
Clinics must collect the following information from donors:
 name, previous name (if any), date of birth, and most
recent address;
 details of past medical history, family history, genetic
test results; and
 physical characteristics.
In turn, clinics must advise donors that they are ethically
responsible to keep the clinic updated with any changes to
their details.
At 18 years of age, a child born of ART procedures, is
entitled to:
 all information regarding their medical and family
 identifying information about the donor and the
number and sex of other persons conceived using
genetic material from the same donor, the number of
families involved and any information that siblings
have consented to release.
NHMRC guidelines require that fertility clinics store the
information relating to ART procedures indefinitely. This
includes the full names and contact details of all
participants and the names of children born of ART
Responsibility of commissioning parents to communicate
with children
There is also recognition of the need to encourage and
support commissioning parents and surrogates to inform
children of their genetic origins and the circumstances of
their birth.
NHMRC guidelines require fertility clinics to encourage
commissioning parents and recipients of donor material to
tell their children about their origins.
The VLRC also suggested that this should be canvassed
as part of initial counselling and there should be ongoing
counselling and support to assist with this process.
As noted, WA proposes that a court-endorsed ‘approval
plan’ be considered as a condition of the transfer of legal
parentage. It is proposed that this plan would detail
parents’ commitment to provide the child with information
about the child’s parentage as he/she develops.Issues for comment:
16. What rights should a child born through an altruistic
surrogacy arrangement have to access information relating
his or her genetic parentage? Who should hold this
The committee would welcome information or advice on
any other matters considered relevant to this investigation.
Issues for comment:
17. What, if any, other matters should be considered in the
regulation of this issue?
Linda Lavarch MP

California case: you're registered when you're not

We have seen that Tassie, Victoria and now the ACT have put in place (or are about to) a registration scheme for de facto and same sex couples.

One of the questions to be asked is: what if I thought I was registered because my partner told me so, but in fact I was never registered because my partner never bothered to register us despite saying otherwise?

Although there is no Australian caselaw on point, a case taken by Lambda Legal in California under the Domestic Partner Act says that you can assume that you are covered. Of course, the key question is that you are believed, and this will come down to your credibility and any corroborative evidence.

The case, Ellis v. Arriaga, involved exactly this scenario- Daniel Ellis filed a petition to dissolve his domestic partnership with David Arriaga, only for Mr Arriaga to defend it on the basis that the partnership had never been registered, and therefore could not be dissolved.

The California Court of Appeal held that under the California Domestic Partner Act,

a person’s reasonable, good faith belief that his or her domestic partnership was validly registered entitles that person to the rights and responsibilities of a registered domestic partner, even if the registration never took place.

The California Legislature’s stated purpose in enacting the Domestic Partner Act was to extend to registered domestic partners all the rights, benefits, and
obligations of married persons, with the exception of the rights, benefits, and obligations accorded only to married persons........Under the equitable putative spouse doctrine, a person’s reasonable, good faith belief that his or her marriage is valid entitles that person to the benefits of marriage,even if the marriage is not, in fact, valid. ...It ... extends to those who intended to register their domestic partnerships under the Domestic Partner Act and had a reasonable,
good faith belief that the registration had occurred, despite the failure to properly
complete the registration. As a result, a person may plead and attempt to prove that he or she is entitled to the rights and responsibilities of a registered domestic partner under these circumstances.

Monday, 19 May 2008

LGBT Cancer

The dreaded C word is one of those words that haunts all of us. It's one of those that sometimes makes us wake up in the middle of the night and sweat.

Many of us have lost friends and loved ones to cancer. We all know people who have survived cancer, and survival rates are increasing. One of the keys in dealing with cancer is to have social support. I could not think of few worse things in the world than facing cancer, possibly facing death, alone.

For LGBT people, living in a relatively small and sometimes isolated community, having cancer can have the added burden of a lack of social support, making dealing with your condition that much worse.

I was contacted recently by Darryl in New York who asked that I write about two websites, and Darryl, I am happy to plug these sites, even though they aren't legal matters. People who have cancer need all the help and support they can get. One of the features that particularly struck me was the thought behind the patient intake form on, which showed the sensitivity to the needs of LGBT people going to hospital.

Sunday, 18 May 2008

California Supreme Court Legalizes Gay Marriage

Mayor of San Francisco, Gavin Newsome speaks of the victory.

Article: Recognising same-sex parents: Bringing legitimacy to the law

John Tobin, in the Alternative Law Journal, argues that
children living in same-sex parented families have an entitlement under international law that their parents be recognised. The time has come to make a genuine commitment to children and their rights, irrespective of the sexual orientation of their parents. Anything less must be seen to leave the status of the law, rather than the status of such families, in a state of illegitimacy.

Saturday, 17 May 2008

California upholds gay marriage

The California Supreme Court has held 4-3 that same sex couples in California have a right to marry. For the full judgment, click here.

What was most significant about the majority was that it considered that civil unions, although providing in Californiain substance what marriages provide, may well provide for same sex couples to be treated as second class citizens. The majority also dealt with, and rejected, "all the usual suspects"- why marriage should be limited to heterosexual couples only by virtue of tradition, for procreation, religion, and that to open the floodgates to same sex couples would demean the tradition of marriage and of religion.

The message from the court is clear: to accord equal rights to same sex couples necessitates that they have the right to marry.

Majority Judgment

The majority comprised George, C. J. and Kennard, Werdegar and Moreno JJ.

Their Honours' judgment contains insightful comments:

"We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive
legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
As past cases establish, the substantive right of two adults who share a loving
relationship to join together to establish an officially recognized family of their
own — and, if the couple chooses, to raise children within that family —
constitutes a vitally important attribute of the fundamental interest in liberty and
personal autonomy that the California Constitution secures to all persons for the
benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an
individual’s capacity to establish a loving and long-term committed relationship
with another person and responsibly to care for and raise children does not depend
upon the individual’s sexual orientation, and, more generally, that an individual’s
sexual orientation — like a person’s race or gender — does not constitute a
legitimate basis upon which to deny or withhold legal rights. We therefore
conclude that in view of the substance and significance of the fundamental
constitutional right to form a family relationship, the California Constitution
properly must be interpreted to guarantee this basic civil right to all Californians,
whether gay or heterosexual, and to same-sex couples as well as to opposite-sex

(A)ssigning a different designation for the family relationship of same-sex couples
while reserving the historic designation of “marriage” exclusively for opposite-sex
couples poses at least a serious risk of denying the family relationship of same-sex
couples such equal dignity and respect. We therefore conclude that although the
provisions of the current domestic partnership legislation afford same-sex couples
most of the substantive elements embodied in the constitutional right to marry, the
current California statutes nonetheless must be viewed as potentially impinging
upon a same-sex couple’s constitutional right to marry under the California

Furthermore, the circumstance that the current California statutes assign a
different name for the official family relationship of same-sex couples as
contrasted with the name for the official family relationship of opposite-sex
couples raises constitutional concerns not only under the state constitutional right
to marry, but also under the state constitutional equal protection clause.

First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite sex
couples and providing only a separate and distinct designation for same-sex
couples may well have the effect of perpetuating a more general premise — now
emphatically rejected by this state — that gay individuals and same-sex couples
are in some respects “second-class citizens” who may, under the law, be treated
differently from, and less favorably than, heterosexual individuals or opposite-sex

This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in...of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state’s interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.

Of course, although the Domestic Partner Act generally affords registered
domestic partners the same substantive benefits and privileges and imposes upon
them the same responsibilities and duties that California law affords to and
imposes upon married spouses, the act does not purport to (and lawfully could not)
modify the applicable provisions of federal law, which currently do not provide
for domestic partnerships and which define marriage, for purposes of federal law,
as the union of a man and a woman.

The flaw in characterizing the constitutional right at issue as the right to
same-sex marriage rather than the right to marry goes beyond mere semantics. It
is important both analytically and from the standpoint of fairness to plaintiffs’
argument that we recognize they are not seeking to create a new constitutional
right — the right to “same-sex marriage” — or to change, modify, or (as some
have suggested) “deinstitutionalize” the existing institution of marriage.

Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords to opposite-sex couples.34 For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and
substance of the constitutional right to marry, and to avoid the potentially
misleading implications inherent in analyzing the issue in terms of “same-sex

(T)he legal right and opportunity to enter into such an officially
recognized relationship also is of overriding importance to the individual and to
the affected couple. As noted above, past California decisions have described
marriage as “the most socially productive and individually fulfilling relationship
that one can enjoy in the course of a lifetime.” The ability of an individual to
join in a committed, long-term, officially recognized family relationship with the
person of his or her choice is often of crucial significance to the individual’s
happiness and well-being. The legal commitment to long-term mutual emotional
and economic support that is an integral part of an officially recognized marriage
relationship provides an individual with the ability to invest in and rely upon a
loving relationship with another adult in a way that may be crucial to the
individual’s development as a person and achievement of his or her full

Further, entry into a formal, officially recognized family relationship
provides an individual with the opportunity to become a part of one’s partner’s
family, providing a wider and often critical network of economic and emotional
security. ...The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life.39 Moreover, the commitment toward permanence that places it in a different category of relational interests than if it were temporary. A ‘justifiable expectation . . . that [the]relationship will continue indefinitely’ permits parties to invest themselves in the relationship with a reasonable belief that the likelihood of future benefits warrants the attendant risks and inconveniences.

The opportunity to publicly and officially express one’s love for and long-term
commitment to another person by establishing a family together with that person
also is an important element of self-expression that can give special meaning to
one’s life. Finally, of course, the ability to have children and raise them with a
loved one who can share the joys and challenges of that endeavor is without doubt
a most valuable component of one’s liberty and personal autonomy.

Although persons can have children and raise them outside of marriage, the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one’s parental relationship the substance which integrates people into the larger social structureto one’s children and the additional security that comes from the
knowledge that his or her parental relationship with a child will be afforded
protection by the government against the adverse actions or claims of others...

There are, of course, many persons and couples who choose not to enter
into such a relationship and who prefer to live their lives without the formal,
officially recognized and sanctioned, long-term legal commitment to another
person signified by marriage or an equivalent relationship. Nonetheless, our cases
recognize that the opportunity to establish an officially recognized family with a
loved one and to obtain the substantial benefits such a relationship may offer is of
the deepest and utmost importance to any individual and couple who wish to make
such a choice.

If civil marriage were an institution whose only role was to serve the
interests of society, it reasonably could be asserted that the state should have full
authority to decide whether to establish or abolish the institution of marriage (and
any similar institution, such as domestic partnership). In recognizing, however,
that the right to marry is a basic, constitutionally protected civil right — “a
fundamental right of free men [and women]” ... Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy ........ and of the liberty interest ... it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.

One very important aspect of the substantive protection afforded by the
California constitutional right to marry is, of course, an individual’s right to be
free from undue governmental intrusion into (or interference with) integral
features of this relationship — that is, the right of marital or familial privacy.
...The substantive protection embodied in the constitutional right to marry, however, goes beyond what is sometimes characterized as simply a “negative” right insulating the couple’s relationship from overreaching governmental intrusion or interference, and includes a “positive” right to have the state take at least some affirmative action to acknowledge and support the family unit.

In light of the fundamental nature of the substantive rights embodied in the
right to marry — and their central importance to an individual’s opportunity to
live a happy, meaningful, and satisfying life as a full member of society — the
California Constitution properly must be interpreted to guarantee this basic civil
right to all individuals and couples, without regard to their sexual orientation...

(A)lthough the legal institution of civil marriage may well have originated in
large part to promote a stable relationship for the procreation and raising of
children ... and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions ... the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Men and women who desire to raise children with a loved one in a recognized family but who are physically unable to conceive a child with their loved one never have been excluded from the right to marry.

There is, however, no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry. Such a proposition clearly is untenable. A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted
reproduction, and the constitutional right to marry ensures the individual the
opportunity to raise children in an officially recognized family with the person
with whom the individual has chosen to share his or her life. Thus, although an
important purpose underlying marriage may be to channel procreation into a stable
family relationship, that purpose cannot be viewed as limiting the constitutional
right to marry to couples who are capable of biologically producing a child

A variant of the contention that the right to marry is limited to couples who
are capable of procreation is that the purpose of marriage is to promote
“responsible procreation” and that a restriction limiting this right exclusively to
opposite-sex couples follows from this purpose....

(S)ame-sex couples can have or obtain children through assisted reproduction or
adoption, resort to such methods demonstrates, in the case of a same-sex couple,
that parenthood necessarily is an intended consequence because each of these two
methods requires considerable planning and expense, whereas in the case of an
opposite-sex couple a child often is the unintended consequence of the couple’s
sexual intercourse. These courts reason that a state plausibly could conclude that
although affording the benefits of marriage to opposite-sex couples is an incentive
needed to ensure that accidental procreation is channeled into a stable family
relationship, a similar incentive is not required for same-sex couples because they
cannot produce children accidentally. ...

Whether or not the state’s interest in encouraging responsible procreation
properly can be viewed as a reasonably conceivable justification for the statutory
limitation of marriage to a man and a woman for purposes of the rational basis
equal protection standard, this interest clearly does not provide an appropriate
basis for defining or limiting the scope of the constitutional right to marry.

The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.

(A)ffording access to this designation [of marriage] exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation,realistically must be viewed as constituting significantly unequal treatment to same-sex couples.

(I)n light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term “marriage” is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second class citizenship.

(I)t is difficult to deny that the unfamiliarity of the term “domestic partnership” is likely, for a considerable period of time, to pose significant difficulties and
complications for same-sex couples, and perhaps most poignantly for their
children, that would not be presented if, like opposite-sex couples, same-sex
couples were permitted access to the established and well-understood family relationship of marriage.

(T)he distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

Many examples exist of legal doctrines that once were viewed as central components of the civil institution of marriage —such as the doctrine of coverture under which the wife’s legal identity was treated as merged into that of her husband, whose property she became, or the doctrine of recrimination which significantly limited the circumstances under which a marriage could be legally terminated, or the numerous legal rules based upon the differing roles historically occupied by a man and by a woman in the marriage relationship and in family life generally. Courts have not hesitated to subject such legal doctrines to judicial scrutiny when the fairness or continuing validity of the doctrine or rule was challenged, on occasion ultimately modifying or invalidating it as a result of such judicial scrutiny.

(U)ntil recently, there has been widespread societal disapproval and disparagement of homosexuality in many cultures, it is hardly surprising that the institution of civil marriage generally has been limited to opposite-sex couples and that many persons have considered the designation of marriage to be appropriately applied only to a relationship of an opposite-sex couple.

Although the understanding of marriage as limited to a union of a man and
a woman is undeniably the predominant one, if we have learned anything from the
significant evolution in the prevailing societal views and official policies toward
members of minority races and toward women over the past half-century, it is that
even the most familiar and generally accepted of social practices and traditions
often mask an unfairness and inequality that frequently is not recognized or
appreciated by those not directly harmed by those practices or traditions. It is
instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage(2) upheld the routine exclusion of women from many occupations and official
duties, and (3) considered the relegation of racial minorities to separate and
assertedly equivalent public facilities and institutions as constitutionally equal

(A)ffording same-sex couples the opportunity to obtain the
designation of marriage will not impinge upon the religious freedom of any
religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no
religious officiant will be required to solemnize a marriage in contravention of his
or her religious beliefs.

While retention of the limitation of marriage to opposite-sex couples is not
needed to preserve the rights and benefits of opposite-sex couples, the exclusion of
same-sex couples from the designation of marriage works a real and appreciable
harm upon same-sex couples and their children.

(T)he statutory provisions that continue to limit access
to this designation [marriage] exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of
comparable stature or equal dignity to the family relationship of opposite-sex
couples. Furthermore, because of the historic disparagement of gay persons, the
retention of a distinction in nomenclature by which the term “marriage” is
withheld only from the family relationship of same-sex couples is all the more
likely to cause the new parallel institution that has been established for same-sex
couples to be considered a mark of second-class citizenship. Finally, in addition
to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic
partnerships, there exists a substantial risk that a judicial decision upholding the
differential treatment of opposite-sex and same-sex couples would be understood
as validating a more general proposition that our state by now has repudiated: that
it is permissible, under the law, for society to treat gay individuals and same-sex
couples differently from, and less favorably than, heterosexual individuals and
opposite-sex couples.