Thursday, 12 November 2009

Submission to Qld Government's proposed surrogacy bill

My submission on the Queensland Government's exposure draft of the Surrogacy Bill:


RE: EXPOSURE DRAFT OF THE SURROGACY BILL 2009

I wish to make a submission about the above Bill.

Congratulations on the Bill.

With one exception, I am strongly in favour of the terms of the Bill. It reflects the views of the all party Committee. It is not discriminatory. It allows for the recognition of lesbian co‑parents on birth certificates.

Executive summary

I am a family lawyer who has advised clients regarding surrogacy issues. I strongly support the Bill and commend the Government as to the contents of the Bill, with one exception – the criminalisation of Queenslanders entering into commercial surrogacy arrangements overseas.

The explanatory memorandum of the draft Bill suggests that the intended extra territorial application is on the recommendation of the Parliamentary Committee, when it was not.

I question whether there has been a breach of the Legislative Standards Act.

Who am I?

I am not a broker or advocate of commercial surrogacy clinics. I am merely a lawyer. I oppose the unnecessary criminalisation and stigmatisation of Queenslanders who choose, or feel that they have no choice but to engage a commercial surrogacy clinic.

This submission is made in my personal capacity. I was admitted as a solicitor in 1997. I have practised solely or predominantly in family law since then. Since 1992, as part of my practice, I have acted for gay, lesbian and transgendered clients. I have had a close involvement with various LGBTI community organisations over many years.

Shortly after the enactment of the Surrogate Parenthood Act 1998 I acted for a surrogate mother who had entered into a commercial surrogacy arrangement and who decided to keep the child. There was no subsequent prosecution and nor were there any proceedings under the Family Law Act. The child presumably is now an adult. Presumably the intended parents did not take any action because they were aware of the illegality of the arrangement that they had entered into.

In recent years, I have been consulted by clients in Queensland, interstate and overseas who have entered into or have intended to enter into surrogacy arrangements.

All have been aware that surrogacy is illegal and have not intended to enter into a surrogacy arrangement in Queensland.

However, I have had to very carefully obtain instruction as to whether the clients ordinarily resided in Queensland. This is because of section 3(2)(b) of the Surrogate Parenthood Act 1998 which criminalises acts of surrogacy when:

“the offender is ordinarily resident in Queensland at that time, irrespective of where the act occurs.”

Thus, people who have been caught by this section have been those who have:

(a) Contemplated altruistic surrogacy arrangements with clinics interstate; and
(b) Those who have already engaged the services of a commercial surrogacy clinic overseas.

Why do people seek to access surrogacy?

The issue of surrogacy is a vexed one. Where the intended parents either utilise the assistance of friends or family or attend an overseas commercial surrogacy clinic, it has been my experience that they have not done so on a whim or some flight of fancy.

These clients have made the decision to have a child by surrogacy only after extremely careful deliberations on their part, and after consideration of the alternatives.

The alternatives to surrogacy

The desire to have children is a burning desire for many people. It is an inherent part of their makeup and a desire that they have no doubt had since they were children. It is considered normal within our society for people to rear children. Through my practice, I have seen people who have a burning desire to have children and feel crushed that they cannot have children. This desire extends to childless couples, lesbian couples and gay couples.

Practising as a family lawyer is hard work. I see people who are in pain following separation and divorce. They are often very sad and angry.

To tell people, who have a burning desire to have a child, that they will be committing a criminal offence if they engage in altruistic surrogacy, whether in Queensland or elsewhere or as Queenslanders if they engage an overseas commercial surrogacy clinic, is an emotionally searing event. The sooner that the Parliament passes laws that allow for altruistic surrogacy in Queensland, the better. People who seek surrogacy have already considered the other options:

(a) Conception by sexual intercourse. Infertile couples do not have a choice. They cannot access this option. Lesbian couples avoid this option in part because it is deeply offensive and in part because there are legal implications under the Family Law Act, the Child Support (Assessment) Act and the Status of Children Act.

(b) The use of assisted reproductive technology. IVF and similar technology has enabled a revolution. However, it does not work with everybody. It has meant that lesbian couples in particular are now having children, although many lesbian couples I have seen have contacted sperm donors privately and have used donated sperm at home with the assistance of their partner to conceive. Of course, this option is not open to gay couples.

(c) Adoption. There are very few children to adopt in Queensland. It is unlikely that that situation will change. Childless couples who have seen me have either explored adoption as an option and discovered that, at best, they are in the waiting list for many years or have, namely same sex couples, been excluded by legislative imprimatur.

(d) Altruistic surrogacy. Those couples who are then lucky enough to have friends or family who can provide assistance are then in a position to engage in altruistic surrogacy. The look of joy and relief on people’s faces that they can have children is indescribable. The pain that people, upon being told that their engaging in a surrogacy arrangement is a criminal offence, is similarly indescribable.

(e) Some people, who have a burning desire to have children, do not have friends or family who can provide altruistic surrogacy, cannot adopt and feel that ultimately they have little option but to use a commercial surrogacy clinic. Their view is that they would rather avoid using such a clinic because it is very expensive but they feel that they have little alternative. It is for them the option of last resort.

It must be said here that whilst the legal considerations of commercial surrogacy are problematic, and Australian Parliaments have formed a consensus against commercial surrogacy, Australian clients, after UK clients, are the biggest group of clients for the commercial surrogacy clinics of California.

Lesbian parents on birth certificates

There has been a lesbian baby boom in Queensland. The lesbian co‑mother is now recognised as a parent under section 60H of the Family Law Act. However, that statutory presumption is simply not enough. The proposed amendments contained in the draft are essential. That is because of the decision in the Family Court in Verner v Vine (2007). In that case two women lived together for several years, owned their home together, and went to an IVF clinic together seeking the conception of a child on the basis that they were a lesbian couple.

The child was born. Their friendship soured. The mother of the child subsequently married and started a new family with her husband.

The other woman applied to the Family Court to spend time with the child on the basis that they had been a lesbian couple. On the above criteria, one may well have expected that the Family Court held the view that these two women were a couple. However, the mother testified that she had lied to the IVF clinic that they were a lesbian couple, that they were merely friends, and that she had lied because she was so desperate to have a child she would say anything. The mother was believed by the Court and the effect of the Court’s ruling was that the other woman was excluded from the child’s life.

That case largely revolved around the issue of credibility.

As a result of that decision, I have had to advise my lesbian clients that they ought to obtain orders under the Family Law Act to ensure that both are recognised so that there is not a possibility that if they later split up the natural mother denies that the other is a co‑parent or that they lived in a lesbian relationship. That process is a costly one and only reflects orders until the child is 18 and does not properly recognise the role of a co‑mother as a parent.

Registration of both women on the birth certificate is quick, fast, cheap, and provides clear evidence of their intention. It is to be commended and the sooner it is enacted the better.

My only criticism of the Bill

This relates to the ban on Queenslanders utilising the services of overseas commercial surrogacy clinics. I note that the explanatory memorandum states that it is the recommendation to decriminalise altruistic surrogacy:

“This is achieved in the Bill by the repeal of the SPA in enacting the new Surrogacy Act 2009 that allows parties to enter into altruistic surrogacy arrangements, while maintaining prohibitions against commercial surrogacy arrangements, advertising for surrogacy and receipt or giving of brokerage fees.”

The effect on people of the current ban

A conviction for a criminal offence can hurt some people more than others. Those who are public servants or professionals could discover that by virtue of a conviction they lose their employment and their professional status by having brought their profession into disrepute.

I have been consulted by health professionals who have wanted children by surrogacy. Some have considered moving interstate, so as to engage in altruistic surrogacy.

Others are prepared to defy the ban on undertaking commercial surrogacy overseas.

Differences between Queensland and New South Wales

Under the Bill there will be a significant difference for those living on either side of Griffith Street at Coolangatta/Tweed Heads. Someone living on the Tweed Heads side of Griffith Street who enters into an overseas commercial surrogacy arrangement does not commit any criminal offence. Those living on the Coolangatta side, however, do under this Bill.

It is my view that the proposed Bill in this respect is harsh and unrealistic. It denies the natural desire of people to have children and will fail in its intent to prevent people from accessing commercial surrogacy clinics overseas. The reality is that Australians, including Queenslanders, are accessing commercial surrogacy clinics in such faraway places as California, India, Russia and apparently Thailand. They will continue to do so, irrespective of what the Queensland Parliament passes.

Instead what will happen is that Queenslanders who engage in that behaviour will, probably unknowingly, have committed criminal offences in Queensland. Those, however, who reside on the Tweed Heads side of Griffith Street do not commit the offence.

Given the consensus of Parliaments in Australia to ban commercial surrogacy, it is entirely appropriate to have such a ban within the Bill.

The fine print: Queensland v New South Wales

The key provision which criminalises Queenslanders attending overseas commercial surrogacy clinics is contained in section 54 of the draft Bill which provides:

“54 Territorial application
This part applies in relation to –
(a) acts does in Queensland regardless of the whereabouts of the offender at the time the act is done; or
(b) acts done outside Queensland if the offender is ordinarily resident in Queensland at the time the act is done.”

The only point in having section 54 is so as to ensure that by virtue of paragraph (b) the Act would have extra territorial application, ie wherever Queenslanders go in the world they commit an offence if an offence is set out somewhere else in the Bill.

That section is section 56 which provides:

“56 Commercial surrogacy arrangements prohibited
A person must not enter into or offer to enter into a commercial surrogacy arrangement.
Maximum penalty – 100 penalty units or 3 years imprisonment.”

Therefore the combined effect of sections 54 and 56 means that if a Queenslander enters into or offers to enter into a commercial surrogacy arrangement, anywhere in the world, whether that be in Azerbaijan or Zambia, or anywhere in between, they commit an offence in Queensland.

The explanatory memorandum states:

“The Bill includes offences relating to: entering into a commercial surrogacy arrangement; advertising for surrogacy; receiving or receiving brokerage fees for surrogacy. These matters are existing offences in SPA and have been included in this Bill. The offences carry the same penalties that are imposed in SPA. The committee in the Report recommended that these matters be retained as offences when new legislation is enacted for the regulation of surrogacy in Queensland.”

The explanatory memorandum goes on to state:

“The Committee was clear in the Report that commercial surrogacy arrangements should not be fostered.”

By contrast the New South Wales position is a lot simpler and does not contain an extra-territorial prohibition. It sets out clearly that the New South Wales Parliament does not approve of commercial surrogacy, because it criminalises it, but does not extend to people from New South Wales being prohibited from going overseas to commercial surrogacy clinics. Section 43 of the Assisted Reproductive Technology Act 2007 NSW provides:

“43 Commercial surrogacy prohibited
A person must not:
(a) enter into a commercial surrogacy agreement; or
(b) arrange a commercial surrogacy agreement; or
(c) accept any benefit under a commercial surrogacy agreement, whether for himself or herself or for another person.
Maximum penalty: 2,500 penalty units in the case of a corporation or 1,000 penalty units or imprisonment for 2 years, or both, in any other case.”

There is no extra-territorial application under that Act.

I take issue with the comment in the draft explanatory memorandum as to the comments made by the committee. In that the Committee’s terms of reference “exclude considerations of commercial surrogacy, which is illegal throughout Australia”.

With respect, the committee did not advocate for the continued criminalisation of Queenslanders attending overseas commercial surrogacy clinics. What the committee stated was: [1]

“The committee considers that decriminalisation of altruistic surrogacy alone may remove some of the unintended consequences such as the potential stigmatisation of families and the pursuit of commercial arrangements overseas. However, the committee believes that further measures are required to prevent harm and ensure parity with other families. For the committee, this entails the development of a legislative and regulatory approach which strengthens existing regulation to better manage identified risks for the child of the parties through ART. It also requires legislation which addresses issues of legal uncertainty for the child of the parties through the provision of a specific provision to transfer legal parentage. The committee’s position also reflects its judgment about the role of government in a liberal democracy and pluralist society.” and “The committee acknowledges that people in our society are free to decide to conceive a child and to take on the rights and responsibilities of parenthood. It believes that this liberty should be extended to the maximum extent possible to consenting adults who are unable to conceive or carry a child themselves provided the birth mother’s consent is informed and freely given.”

The committee noted: [2]

“The current National Health and Medical Research Council exclude commercial surrogacy and require “every effort is made to counsel parties in the case of altruistic surrogacy”.

The committee stated: [3]

“The committee considers the reimbursement or payment of “reasonable” expenses is consistent with the prohibition on commercial surrogacy and is consistent with the concept of “altruistic” surrogacy.”

The committee stated: [4]

“The committee recommends that the government prohibits advertising and brokerage for altruistic surrogacy under the Surrogate Parenthood Act 1998.”

This position reflects the committee’s desire to avoid commercial surrogacy and its preference for arrangements between family networks and close friends which have an opportunity for ongoing contact between the child and birth mother.

The committee recognises: [5]

“It may not be possible to prevent people resident in Queensland from accessing advertising and brokerage services, particularly those available on line. However, to the maximum extent possible Queensland based advertising and brokerage should be discouraged.” [emphasis added]

Legislative Standards Act

I note that section 4(2) of that Act provides that legislative principles include requiring that legislation has sufficient regard to –
(a) rights and liberties of individuals; and
(b) the institution of Parliament.

It is my view that the extra-territorial provision in the Bill does not:

(a) have sufficient regard to the rights and liberties of individuals, by denying them the choice of what they may wish to do anywhere else in the world other than in Queensland; and

(b) does not have sufficient regard to the institution of Parliament without there being a fundamental statement in the explanatory memorandum as to why the Parliament considers that it is appropriate for the extra territorial application.

National 15 point plan

Last week the Standing Committee of Attorneys-General reached agreement, subject to the Health and Communities Ministers Councils, on a national 15 point plan for surrogacy. The plan has not been made public. I do not know whether or not the draft Bill is in accord with the plan.

[1] P.2
[2] P.25
[3] P.33
[4] P.37
[5] P. 38

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