Monday, 29 November 2010

Getup! considers campaigning against ban against overseas commercial surrogacy clinics

Community activist group Getup! is considering campaigning against the ban (now in Qld and the ACT and soon to be in NSW) on Aussies accessing overseas commercial surrogacy clinics. This is what the original posting said:

On 11 November 2010, the NSW Parliament passed legislation banning NSW residents from engaging in commercial surrogacy arrangements overseas.
The effect of this legislation is that consenting residents of NSW cannot travel to another country and participate in legal activities with other consenting adults.
The argument for the ban is based on the "best interests of the children born through commercial surrogacy", while no reputable evidence that it is not in the child's best interests or the children are disadvantaged in anyway has been presented.
Additionally, it is argued that women are exploited in commercial surrogacy arrangement, while the case of the California Supreme Court Johnson v Calvert (1993) in the USA stated:
"The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carried overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genetic stock"
The NSW Government must remove this ban.

Various respondents have said that the laws are "archaic", "cruel", "ill-thought", "highly discriminatory", "implicitly racist", "preposterous", "ridiculous" and "a major step backwards".
For the thread, click here.

SCAG's 15 Surrogacy Points

The mysterious 15 point plan by the nation's Attorneys-Generals about consistent laws to do with surrogacy have now been made available. The unfortunately named SCAG (Standing Committee of Attorneys General) had previously declined to release the plan. The communique from the most recent meeting on  7 May 2010 meeting merely states: 

Surrogacy
Ministers today considered a set of draft model provisions based on the 15
principles for surrogacy laws endorsed in their November 2009 meeting.
Ministers agreed to refer the draft model provisions to Health and Community
Services Ministers for their consideration.

This is a repeat of what they said a year ago.

Here is the draft 15 point plan (with my comments under some points):

1. A court may grant a parentage order where the court is satisfied a surrogacy arrangement was entered into by the surrogate mother, her partner (if any) and the intended parents prior to conception






[Comment: There is nothing in the draft that prohibits commercial surrogacy. It would be helpful that conception is defined. In Queensland it is not, and there has been great concern amongsts doctors and clients about whether use of an embryo for implantation in the surrogate means that conception occurred at the time of the fertilisation of the egg, and therefore a parentage order cannot be obtained. The matter is yet to be ruled on by the court.]

2. A court may grant a parentage order where the court is satisfied all parties have undergone counselling with an accredited counsellor in relation to the surrogacy arrangement

3. A court may grant a parentage order where the court is satisfied all parties have received independent legal advice about the surrogacy arrangement prior to entering the arrangement

4. A court may grant a parentage order where an application was made to the court at least 21 days, but not more than six months after the birth


5. The intended parents must reside in the jurisdiction in which the application is made

[Comment: This is silly. This is just rail gauges all over again. All that should be required is that the intended parents reside in Australia. As an example, under this scheme, intended parents in Albury, who might want to go to the Canberra Fertility Clinic, have to go through the requirements of that clinic's ethics committee before proceedings, but then have to apply in NSW for the Parentage Order and then have to register that in the ACT (assuming the child was born in the ACT).]

6. All parties to the surrogacy arrangement must give informed consent to the granting of a parentage order

7. The child must be living with the intended parents at the time the application is heard

8. A court may grant a parentage order where the court is satisfied granting the order is in the best interests of the child

9. A court may grant a parentage order where certain requirements set out in the model provisions are not met if the court is, despite this, satisfied granting the order is in the best interests of the child. The ability of the court to waive requirements is subject to mandatory requirements set out in legislation

10. A court may take into account any other matter it considers relevant when determining whether to grant a parentage order

11. A court may grant a parentage order to parents who are now lawfully raising children under the age of 18 years conceived through surrogacy if:
(a) the court is satisfied that a surrogacy arrangement was entered into prior to conception
(b) the court is satisfied the surrogacy arrangement was not a commercial arrangement
(c) all parties consent to the granting of the order
(d) it is in the best interests of the child
In determining such an application the court will be required to take into account the views of the child, where appropriate.

[Comment: Yes, but. The Attorneys say that the children should be included, but those born before a cutoff period before the legislation was passed miss out. In Queensland it is 2 years, and South Australia (when those laws take effect) 10 years. ]

12. After a parentage order is granted a new birth certificate can be applied for and will resemble an ordinary birth certificate recording only the names of the legal parents.

13. The original birth record would still exist and the child would be able to obtain both records in defined circumstances

14. The jurisdiction where the original birth certificate was issued will provide for the mutual recognition of a parentage order granted in another jurisdiction by provision of a new birth certificate. Alternately, the jurisdiction where the original birth certificate was issued should cancel the birth certificate and the jurisdiction where the parentage order was granted should issue a new birth certificate.

15. The surrogate mother will be able to enforce an arrangement for the reimbursement of reasonable expenses.

Thanks to David Taylor, Qld convenor of the Gay Dads Alliance for bringing this to my attention.

Sunday, 28 November 2010

Guide to commercial surrogacy laws in Australia: http://ht.ly/3ghs7
Who can adopt in Australia: state by state guide http://ht.ly/3giir

Going to the Family Court after the commercial surrogacy clinic

Intending parents of children born overseas through a commercial surrogacy arrangement or agreement, particularly gay or lesbian couples, are keen to know the hurdles of having the child recognised as theirs. Here is the short version.

Disclaimer: Every case is different! Those Australians entering into commercial surrogacy arrangements or agreements should get good Australian legal advice before entering into the arrangement. They may be committing an offence. Those Australians who have entered into commercial surrogacy arrangements or agreements overseas should get good Australian legal advice as soon as possible. They may have committed an offence. I have advised clients in several states and overseas about surrogacy. For a guide about the differences between the states and territories, try here or here.


Step 1: I have entered into the commercial surrogacy agreement/arrangement

Before step 1, if you are from Qld or the ACT [and soon NSW], don't- it is an offence in those jurisdictions to do.

The critical issue is to ensure that the child is an Australian citizen by descent. Engaging a reputable migration agent is essential. If the child is an Australian citizen by descent, it can migrate here, if not, it cannot. Both the Australian High Commission in New Delhi and the Australian Embassy in Washington DC require DNA proof- but a recent decision has made plain that even without DNA you might be a parent and the child a citizen by descent.

Step 2: The child is born: is the child legally yours?

Evidently, if the answer is no, then the child cannot leave that country. You will need to get advice, well in advance, from a lawyer in that country who knows what they are doing.

Step 3: Telling the Department of Immigration and Citizenship

You will need to get advice about whether or not you tell the Department about the surrogacy status of the child. The expectation of the Department is that you say. The four questions to get advice about are:

  • do I have a legal obligation to tell?
  • if I don't say, and my child comes to Australia, will/can/what risk is there in my child being stripped of Australian citizenship later on?
  • if I do say, what risk is there that I will be referred to police in Qld, ACT and soon to be NSW for prosecution? [So that it is clear beyond any doubt: I do not encourage anyone to commit any offence. Engaging a commercial surrogacy clinic overseas is an offence in Qld and the ACT and shortly NSW.]
  • if I am prosecuted, what risk is there in the child being taken away from me by the State?
Step 4: How is the child legally recognised as mine?

There are three options, none of which are pretty:

  1. Do nothing. Your partner may be legally recognised as mum or dad, but you are not. This may not cause troubles for you, except possibly in dealing with schools and doctors. It may be worse: if you and your partner split up, and you take your partner to the Family Court, the Family Court may not believe your story, and prevent you from seeing the child.
  2. Adopt. Three potential problems: 
    • is same sex adoption legal in your jurisdiction? Click here for my State by State guide. Adoption by those in a same sex relationship is legal in NSW, WA, ACT and in limited circumstances in Tasmania.
    • if you can adopt in your jurisdiction, did you commit an offence entering into the commercial surrogacy arrangement (which you would have done in the ACT, and may have done in NSW)? If so, assume that the adoption cannot proceed and that you will be reported to police.
    • in any case, is the bureaucracy of the State agency going to prevent you adopting, given that the child was born overseas?
  3. Get a parenting order from the Family Court. It's not cheap. It is usually the best option. There is a risk for those in Qld, the ACT and soon NSW that the judge could report you to police. Get advice about the reality of this risk.  In two reported cases (from Victoria), Re Mark and Cadet and Scribe it was illegal to have entered into surrogacy in Victoria. The judge did not report the parties to the Victorian police. Her priority was on the best interests of the child. For a summary of how the Family Court has decided these and other surrogacy cases, click here. Depending on what happened in the legal process overseas, the surrogate mother may need to be served with a copy of any court application. This will mean having to give her a copy of the the court documents. This may mean going through the Department of Foreign Affairs and Trade and the relevant government overseas, depending on the country, and may mean translation into the language of the surrogate by an expert translator.

Australian Adoption Guidelines: State by State

Updated as of 28 November, 2010.

Every State and Territory has a different set of rules as to who can adopt. This guide does not cover overseas adoptions or adoptions by expatriate Australians.

New South Wales

Legislation: Adoptions Act 2000

The people who can adopt are:

  • a couple who have been married for two years;
  • a heterosexual or homosexual de facto couple, who have been together for two years;
  • singles- if either they are at least 21, plus at least 18 years older than the child or in the special circumstances of the case the Supreme Court gives permission.
The Supreme Court cannot grant permission to one person to adopt if they have a spouse- husband or wive or heterosexual or homosexual de facto relationship, and the spouse gives permission.

An adoption by a relative can occur, but only if the Supreme Court is satisfied that it is preferable to any other action, which may be a considerable hurdle.

An adoption by a step-parent can occur, but only if leave to adopt has occurred under the Family Law Act and the child is at least 5, and the consent of the parent is given or dispensed with, and only if the Supreme Court is satisfied that it is preferable to any other action.

Although recommendations by a NSW Parliamentary Committee to allow same-sex adoptions were rejected by the State Government, following both sides being allowed a conscience vote, the Adoptions Act was amended, taking effect on 15 September, 2010. Both the Premier Kristina Keneally and the Opposition Leader Barry O'Farrell spoke in favour of the bill. Adoption agencies can opt out of providing adoptions for same sex couples if they so wish, which overcomes (for adoptions) a court case  involving the Uniting Church and gay would be fostercarers.


Australian Capital Territory

Legislation: Adoptions Act 1993

People who can adopt:
  • a couple, including a married couple, living together for 3 years.
There is a strong preference in the Adoptions Act 1993 to make guardianship and custody orders in matters involving stepparents and relatives rather than adoption orders.

Same sex couples can adopt.

Victoria

Legislation: Adoptions Act 1984

People who can adopt:

  • a married or heterosexual couple who have been together for 2 years;
  • a couple in an Aboriginal traditional marriage who have been together for 2 years.
  • single people in special circumstances.
Same sex couples cannot adopt. The Victorian Law Reform Commission has recommended that this be changed, but it has not.

Tasmania

Legislation: Adoptions Act 1988

People who can adopt:
  • married couples, and people in de facto relationships, who have been together 3 years.
  • single people in special circumstances.
Qualifier: De facto couples, including same sex couples can adopt, but only if they have a registered relationship. Only married couples can adopt a child that is not a stepchild or relative (subject to the special circumstances for single people).

South Australia

Legislation: Adoption Act 1988

People who can adopt:
  • couples who have been married for 5 years;
  • couples in heterosexual de facto relationships for 5 years;
  • single people in special circumstances.
Same sex couples cannot adopt.

Western Australia

Legislation: Adoption Act 1994

People who can adopt:

  • is a step-parent of the child and has been married to, or in a de facto relationship with, a parent of the child for at least 3 years;
  • is a carer of the child; 
  •  has, under the Adoption Act, had the child placed in his or her care with a view to the child’s adoption by him or her.
Same sex couples are able to adopt, due to the definition of de facto relationship. The country's only documented same sex adoption occurred in WA.

Northern Territory

Legislation: Adoption of Children Act


People who can adopt:
  • a couple who have been married for 2 years.
  • a couple in an Aboriginal traditional marriage of  2 years.
  • a husband or wife of a parent of the child;
  • a relative of the child.
  • single people in exceptional circumstances.
De facto (unless in an Aboriginal traditional marriage) and same sex couples cannot adopt.

Queensland

Legislation: Adoption Act 2009

People who can adopt:
  • a couple who have been married for 2 years.
  • a heterosexual de facto couple who have been together for 2 years.
  • a step-parent when the couple have been married or in a heterosexual de facto relationship for 3 years and the child has lived with them over that time;
  • the child is between 5 and 17 years old (or there is enough time between 17 and 18 to complete the process).
Same sex couples and single people cannot adopt. Premier Anna Bligh and the Government made plain that same sex couples need not apply. The previous 1964 Act preserved the inherent jurisdiction of the Supreme Court which may have allowed these adoptions. It is not known whether that inherent jurisdiction remains.
Guide to commercial surrogacy laws in Australia: http://ht.ly/3ghqX

Commercial surrogacy: updated State by State guide

This guide is accurate as of 28 November, 2010.

If you are contemplating entering into, or have entered into a commercial surrogacy arrangement or agreement, get good legal advice- NOW. You may be or have committed a criminal offence. 
I have provided advice to clients in several states and overseas about commercial surrogacy.
Commercial surrogacy is illegal in Australia, except for the Northern Territory. In the NT, commercial surrogacy is in effect banned because the doctors providing IVF treatment are from Adelaide, and subject to South Australian licensing and laws.

MP's have generally taken the view that commercial surrogacy involves the exploitation of women, especially those from the third world, and also involves the treatment of children as commodities.

The reality however is that Australians have used and will continue to use overseas commercial surrogacy clinics. For example, as seen in two Family Court cases, Victorian gay couples in Re Mark and Cadet and Scribe, went to the US, undertook commercial surrogacy and ended up with orders for the parenting of the children from the Family Court. In both cases when the men undertook the arrangements, it was an offence for them to undertake commercial surrogacy both in Victoria and overseas.

Each of the States and Territories have different rules about their residents having children through overseas commercial clinics.

Queensland

Law: Surrogacy Act 2010
Status: Commercial surrogacy banned anywhere in the world.

It is a criminal offence for any commercial surrogacy arrangement to be entered into in Queensland. It is also a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrangement anywhere in the world. This Act in effect repeats the repealed Surrogate Parenthood Act 1988[PDF]. It has been an offence since 1988 to engage in commercial surrogacy in Queensland or for someone ordinarily resident in Queensland to engage in surrogacy somewhere else, including through overseas clinics.

The Surrogacy Act 2010 bans commercial surrogacy both in Queensland and by those ordinarily resident  in Queensland anywhere in the world. It does this by:
-banning advertisements
-banning commercial surrogacy
-payment (other than for the surrogate's reasonable surrogacy costs)
-providing technical and medical assistance if the person knows the other person is, or intends to be, a party to a commercial surrogacy arrangement; and  the person provides the service with the intention of assisting the other person to become pregnant for the purpose of the arrangement. (It doesn't apply if the surrogate is already pregnant).




New South Wales


Legislation: Assisted Reproductive Technology Act 2007

Status: Commercial surrogacy banned only in NSW. Soon: banned anywhere in the world.



Commercial surrogacy is banned in NSW. NSW residents are currently not banned from going to overseas commercial surrogacy clinics and entering into contracts or arrangements there.

The Act makes it an offence to:

-enter into a commercial surrogacy agreement
-arrange a commercial surrogacy agreement
-accept any benefit under a commercial surrogacy agreement
-advertise for commercial surrogacy

Commercial surrogacy agreements are void.

Going, going, gone...

NSW has now passed the Surrogacy Act 2010. This Act is due to be proclaimed on a date to be fixed, but in all likelihood before Christmas. Any day now. When this Act comes into effect, it will be an offence for those who reside in or are domiciled in NSW from engaging in acts of commercial surrogacy, wherever that might be, whether in Australia or overseas.

The passage of the bill has created a firestorm of protest, but protests are unlikely to make any difference, at least in the short term. 

"Residence" and "domicile" are different legal concepts. Residence is pretty clear- that you live in the location. Domicile is a wider concept. In law there are essentially two types of domicile. One is a domicile of choice: a person has chosen to be a permanent resident somewhere, for example in NSW. The other is domicile of origin: a person was born in NSW, and has not adopted a domicile of choice, because for example they travel around the world, or they have abandoned their domicile of choice, and keep their domicile of origin. Such a person, who does not live in NSW, will be caught up in this legislation. The Wikipedia article on domicile is a useful starting point.


If in doubt, get advice. I am happy to provide advice to those in NSW about the effect of the changes.


Australian Capital Territory

Legislation: Parentage Act 2004

Status: Commercial surrogacy banned anywhere in the world.


Commercial surrogacy is banned in the ACT. The law does this by:
-banning commercial substitute parentage agreements
-banning the advertising for surrogacy
-banning the procuring of commercial substitute parentage agreements
-banning the facilitation of pregnancy

It is an offence for ACT residents to engage in any of these anywhere in the world "if, when the offence is committed, the person who commits the offence is ordinarily resident in the ACT".


Victoria
Legislation: Assisted Reproductive Treatment Act 2008

Status: Commercial surrogacy banned only in Victoria.



Commercial surrogacy including overseas commercial surrogacy was banned under the Infertility Treatment Act 1995 [PDF]. That Act was repealed on 1 January 2010, with the coming into force of the Assisted Reproductive Treatment Act 2008.

The 2008 Act bans commercial surrogacy in Victoria, but does not ban Victorians from accessing overseas commercial surrogacy clinics.

Tasmania
Law: Surrogacy Contract Acts 1993

Status: Commercial surrogacy banned only in Tasmania.


Commercial surrogacy is banned. The Act does not ban Tasmanians from accessing overseas commercial surrogacy clinics.

South Australia
Legislation: Family Relationships Act 1975

Status: Commercial surrogacy banned only in South Australia.



Commercial surrogacy is banned, including payment and advertising for surrogacy. There is no restriction on South Australians attending overseas commercial surrogacy clinics.


The Statutes Amendment (Surrogacy) Act 2009 (which in turn has been amended) is still waiting to commence.  It amends the 1975 Act. Commercial surrogacy remains banned. There is no restriction on South Australians attending overseas commercial surrogacy clinics.

Western Australia 2008
Legislation: Surrogacy Act 2008

Status: Commercial surrogacy banned only in WA. However,  WA regulator threatened with prosecution those mentioning overseas commercial surrogacy clinics.


Commercial surrogacy is banned, including advertising or making the arrangement.

It is an offence to facilitate a commercial surrogacy arrangement:

"(1)A person who provides a service knowing that the service is to facilitate a surrogacy arrangement that is for reward commits a crime except in the circumstances described in subsection (2).
(2) It is not an offence against subsection (1) if the service is a health service provided to the birth mother after she has become pregnant. "

The nature of this offence extends beyond health professionals, and might include, for example, brokers for overseas commercial surrogacy clinics.

The ban on accessing commercial surrogacy does not extend to attending overseas commercial surrogacy clinics.

Northern Territory

Status: Commercial surrogacy legal (but non-existent). Legal for Territorians to access overseas commercial surrogacy clinics.


There is no legislation covering NT citizens. It is therefore not an offence for a Territorian to go to commercial surrogacy clinics.There are no such clinics in the NT. It is not an offence for a Territorian to go to an overseas commercial surrogacy clinic.

Thursday, 25 November 2010

Today, 25 November, is White Ribbon Day: UN International Day for the Elimination of Violence Against Women. http://ht.ly/3f9JW

Tuesday, 23 November 2010

Man forced to share $90million lottery win with ex http://ht.ly/3e3nY . Shows why property settlement should be done right first time.

Monday, 22 November 2010

American surrogacy expert to speak at Sydney seminar http://ht.ly/3djkl

Updating/commentary on surrogacy

Corey commented today on my guide to commercial surrogacy state by state:

Steven, I wondered if
you could:



a) update this page's information (in light of the NSW changes)



b) provide comment regarding Victoria's laws between 1995 - 2008 where the
overseas surrogacy ban was in force, but it seems has never been enforced
(despite a number of high profile couples promoting their families)



c) provide commentary on exactly what impact these laws have (eg can parents
who used overseas surrogacy arrangements still get a parenting order)



d) provide suggestions on what is the best way forward in regards to
legislative reform in this area with the best interests of the child being kept
in mind.



Thank you Corey: another job to do!
Childless couples face jail as part of international baby ban http://ht.ly/3djep Also applies in ACT and Qld

Sunday, 21 November 2010

NSW Surrogacy Act: Attorney-General's speech

Here is the speech by the NSW Attorney-General John Hatzistergos as to the Surrogacy Act:

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform,
and Vice-President of the Executive Council) [5.03 p.m.]: I move:
That this bill be now read a second time.
In May this year I announced the Government's intention to introduce new surrogacy laws for New South Wales,
to provide certainty for the parties to surrogacy arrangements and to protect the interests of children born as a
result of such arrangements. This bill introduces, amongst other things, a comprehensive scheme for new
parentage orders, which may be granted by the Supreme Court to transfer parentage in surrogacy situations,
provided certain safeguards are observed. The bill is subject to a guiding principle—that the best interests of
children born as a result of surrogacy arrangements are paramount.
By creating the new parentage orders, the bill implements a recommendation of the Legislative Council Standing
Committee on Law and Justice, which tabled its report "Legislation on Altruistic Surrogacy in New South Wales"
in May 2009. This reform also draws on the work of the Standing Committee of Attorneys-General, which in
March 2008 agreed to develop a national model for the legal recognition of parentage achieved by surrogacy
arrangements. In November 2009 the Standing Committee of Attorneys-General adopted 15 principles as the
basis for drafting model provisions to regulate surrogacy, and the committee then discussed draft provisions at
its meeting in May.
The work of the Legislative Council Standing Committee on Law and Justice and the Standing Committee of
Attorneys-General followed extensive consultation. The Legislative Council Standing Committee on Law and
Justice advertised a call for submissions in August 2008 and it received 40 submissions from government
agencies, fertility clinics, a lawyer and a psychologist with experience facilitating surrogacy arrangements,
community groups, religious and ethics organisations, academics and private citizens, including parents of
children born through surrogacy arrangements. It also held public hearings in November 2008 and March 2009
where it heard from a range of stakeholders.
The work on this issue by the Standing Committee of Attorneys-General was informed by responses to a
consultation paper released for public comment in January 2009. In all, 109 submissions were received from a
variety of government bodies, institutions, and individuals. The preparation of this bill has drawn on the results of
this consultation, and further consultation that has been carried out with NSW Health, the Department of
Community Services, the Registry of Births, Deaths and Marriages, and the Supreme Court of New South
Wales.
Currently, in most cases, the Status of Children Act 1996 has the effect that a child's legal parents are its birth
parents. That is, if a woman gives birth to a child, she and her husband or de facto partner, if any, are usually
presumed to be the parents. This means that people who intend to become parents under a surrogacy
arrangement, and who may in fact be raising the child, can face significant legal obstacles in obtaining full
parental rights. They may, in a practical and emotional sense, be parenting the child, but may have trouble, for
example, obtaining a passport for the child, enrolling the child in school, or accessing benefits to which a legal
parent would be entitled.
Part 3 of this bill provides a framework for the Supreme Court to grant orders that would transfer full legal
parentage of children from their birth parent, or birth parents, to the intended parents under a surrogacy
arrangement. This will come as a relief to families who would otherwise have had to turn to adoption processes,
which can be a long and laborious process, or parental responsibility orders from the Family Court, which are not
permanent and do not apply when children reach adulthood. The new orders will provide relief and certainty for
those who seek to become parents under surrogacy arrangements and who have, to date, had to deal with the
existing legal schemes that are not designed for surrogacy situations.
These orders will also advance the best interests of children. At present, children born of surrogacy
arrangements may live with their intended parents, as agreed by the parties, but without the benefit of full
parentage rights for those who care for them. The new parentage orders will give the intended parents the full
legal capacity to make decisions in the child's interests. Clause 15 provides that intended parents may apply for
a parentage order between 30 days and six months after the child's birth. The 30-day time limit operates as a
cooling-off period for the birth mother, who will have the opportunity to carefully consider consenting to the
parentage order after the birth of the child. The upper time limit of six months aims to provide certainty to the
parties, and to encourage a secure and stable living environment for children.
Under clause 16, an application for a parentage order must be supported by an independent counsellor's report
as to whether the order is in the best interests of the child and the reasons for that opinion. This report will assist
the court in determining whether to make the order. The bill does not impose pre-conditions in relation to the
gender of intended parents, nor their relationship status—apart from a requirement that if two people enter into a surrogacy arrangement as intended parents, they must be a couple.
Parentage orders are open to same-sex and de facto couples. Also, there is no restriction on the form of
conception that may be used in a surrogacy arrangement for which a parentage order will be available. There
are two key reasons for this approach. First, the Government generally agrees with the principle, endorsed by
the majority of the Legislative Council Standing Committee on Law and Justice, of minimal State intervention in
these matters. Legislation should not prescribe what form families should take. Secondly, the fact is that children
are born into surrogacy arrangements involving same-sex, single and unmarried parents, with varying forms of
conception. Those children deserve the benefits that will flow from a parentage order as much as any other child.
There are many diverse forms of family and it is necessary, and in the best interests of children in particular, to
deal with this reality. However, importantly, the bill creates several safeguards aimed at protecting the wellbeing
and interests of the child and the parties to the surrogacy arrangement. As a starting point, clause 21 provides
that an order can only be made where this is in the best interests of the child. Clauses 22 and 23 provide that an
order cannot be made in relation to a commercial surrogacy arrangement or an arrangement reached after
conception.
Clauses 24 to 36 impose further pre-conditions to the grant of a parentage order. They include the following. The
parties must obtain counselling and legal advice before entering into the arrangement, to ensure that they
understand the social, psychological and legal implications of doing so. The arrangement must be in writing. This
requirement aims to focus the parties on the complexity and the potential outcomes of the arrangement. The
birth mother must have been at least 25 years old when she entered into the surrogacy arrangement, to ensure
that she has sufficient maturity to grasp its implications. However, in respect of arrangements entered into before
the bill commences, it is sufficient if the birth mother is 18 years old.
The consent of the birth parents to the making of the parentage order is required. If a birth parent withholds
consent, the order cannot be made. This is also consistent with the existing position that surrogacy
arrangements are unenforceable. The intended parents must have been at least 18 years old at the time of entry
into the surrogacy arrangement. The child must be living with the intended parents at the time of the hearing;
demonstrating the willingness of the birth parents to hand the child to the intended parents and the intended
parents' willingness to accept care of the child. The parties must have provided information about the surrogacy
to the Director General of Health to be recorded on the register administered under the Assisted Reproductive
Technology Act 2007, and the birth must have been registered. This ensures that there is a record of the
circumstances of the birth, which may be important to the child later in life, and underpins their right to know
about their biological inheritance.
The bill also requires for a parentage order to be granted that there must have been a "medical or social need"
for the surrogacy arrangement. This requirement restricts the grant of parentage orders to surrogacy
arrangements that have been entered into because the intended parent or parents would not otherwise be able
to have children. To meet this requirement a woman, single or as part of a couple, who seeks to become a
parent through surrogacy, must be unable to conceive or carry a child on medical grounds or likely to conceive a
child affected by a genetic condition or disorder passed down by her. A single male or a male couple will
automatically meet the requirement of "medical or social need'', on the basis that men in such situations cannot
conceive a child without the assistance of another party.
Clause 17 gives the court the power to dispense with certain pre-conditions in exceptional circumstances,
always subject to the best interests of the child. However, the court will not be able to dispense with the
requirements that the agreement is not commercial or that there be a pre-conception surrogacy arrangement.
Nor can the court dispense with the requirement that birth parents consent, except in very limited circumstances,
such as where a birth parent has died or has lost capacity. The court will be able to make parentage orders also
in respect of arrangements entered into before the Act commences, extending the benefits of this reform to
children born into existing arrangements.
Some of the pre-conditions to the grant of these orders will not be as strict, since the parties will not have been
aware of the conditions they needed to comply with at the time of entry into the arrangement. However, some of
the requirements that will still apply are that the arrangement cannot be commercial and must have been entered
into before conception, the birth mother must have been at least 18 years old when the arrangement was made,
and the child must be under 18 years old and lawfully living with the intended parents. There will be a two-year
window following commencement of these laws in which to seek orders in respect of existing arrangements,
aimed at providing certainty for the parties and a stable and secure family situation for children.
The bill also provides for closed-court hearings and, in part 4, restricted access to court records and a restriction
on the publication of identifying details to the public without a person's consent. These provisions aim to protect
the privacy of parties to surrogacy arrangements and to protect the child from possible stigmatisation. Clause 42
provides that a parentage order may be discharged where it was obtained by fraud, duress or other means,
where consent to the order was given for fee or reward, or for another exceptional reason.
Schedule 2 to the bill includes consequential amendments to the Interpretation Act 1987, the Property
(Relationships) Act 1984, the Relationships Register Act 2010, the Succession Act 2006 and the Workplace
Injury Management and Workers Compensation Act 1998. The majority of these amendments relate to how
family relationships are determined at law. For example, where a person dies intestate amendments to the
Succession Act 2006 have the effect that if a parentage order names that person as a child's parent, they will be
treated as the child's legal parent for the purposes of distribution of the estate. These amendments ensure that
the practical benefits and implications of a transfer of parentage flow through to other areas of law. The bill also
amends the Status of Children Act 1996 to make it clear that the parentage presumptions in that Act do not
impact on the effect of these parentage orders.
The Government believes that the children of surrogacy arrangements should have access to information about
the circumstances of their birth and genetic history. This is important for the child's psychological wellbeing and
sense of identity, allowing them to avoid "genealogical bewilderment". It may also be important in terms of the
child's future health and medical treatment. While counselling will usually emphasise the importance of intended
parents being open with a child about their birth mother and genetic origins, the bill nevertheless provides
safeguards for affected children. The bill contains two mechanisms for accessing information about surrogacy
arrangements and the affected parties.
Once a parentage order has been made, amendments to the Births, Deaths and Marriages Act 1995 have the
effect that new birth certificates will refer only to the intended parents. However, the original birth certificate will
remain available to the affected parties and to the child once he or she reaches 18 years of age. Also, once the
child is 18, any new birth certificate for which he or she applies will attach an addendum stating that further
information is available. These provisions aim to ensure that children have access to information about the
circumstances of their birth, but also to ensure they have sufficient maturity to cope with any new information
about this. However, birth certificates will record only some details of the legal birth parents.
To ensure that other important information is recorded, the bill also expands the existing register for recording
the information of gamete donors under the Assisted Reproductive Technology Act 2007 to apply to surrogacy
situations. When children born into surrogacy situations reach adulthood, they will be entitled to access the
information on the register. A birth parent or gamete provider will also be able to access non-identifying
information about the child or identifying information to which a child consents once he or she reaches
adulthood.
The bill, in item [4] of schedule 2, also amends the Assisted Reproductive Technology Act 2007 to impose an
additional requirement on the use of assisted reproductive technology for surrogacy cases. The treating clinic
must, before providing treatment, receive and take into account a report from an independent counsellor
assessing the suitability of parties to the arrangement. This provision implements a recommendation of the
Legislative Council standing committee, which was concerned that counsellors' recommendations about people's
suitability for surrogacy arrangements should not be influenced by any form of financial dependence on ART
clinics.
Commercial surrogacy will remain a criminal offence and surrogacy arrangements will remain unenforceable, as
is currently the case under the Assisted Reproductive Technology Act 2007. This offence aims to prevent the
commercialisation of human reproduction. As the Standing Committee of Attorneys-General noted in its 2009
discussion paper, "commercial surrogacy commodifies the child and the surrogate mother, and risks the
exploitation of poor families for the benefit of rich ones". However, a new provision has been inserted to
implement a recommendation of the Legislative Council standing committee. This will allow parties to enforce an
obligation under the arrangement to pay the birth mother's reasonable surrogacy costs. Those costs include the
reasonable costs of becoming or trying to become pregnant, as well as the costs of a pregnancy or birth, or a
surrogacy arrangement. A list of costs that meet this description is included for the sake of clarity.
Advertising in relation to commercial surrogacy will remain an offence, and will be extended to altruistic
surrogacy arrangements where the advertisement is made for fee or reward. Such advertisements may increase
the risk of surrogacy arrangements that are, in fact, commercial. For advertisements about altruistic surrogacy, a
lower maximum penalty will apply due to the lesser seriousness of such advertisements. This bill is an important
step towards creating legal certainty for people who turn to surrogacy arrangements because they are otherwise
unable to have children, and towards protecting the interests of children born into surrogacy arrangements. It is
also intended to encourage those who turn to such arrangements to follow processes designed to ensure they
thoroughly understand the psychological, social and legal complexity of their decisions, and the lasting impact
those decisions will have on the child yet to be born. I commend the bill to the House.

American surrogacy expert speaking at Sydney seminar

Dr Kim Bergman
Dr Kim Bergman, the co-owner of one of the world's oldest and largest surrogacy clinics, Growing Generations, will be speaking at a surrogacy seminar to be held in Sydney on 14 December, 2010.
As a co-owner of Growing Generations, based in LA, Dr Bergman has had a strong commitment toward LGBTI clients.  Growing Generations has received many awards for its role in supporting the LGBTI community.
A psychologist since 1992 , Dr Bergman is the founder of Fertility Counseling Services, Inc., providing all aspects of psychological services to individuals and agencies in the field of fertility and assisted reproduction. Dr Bergman is the current co-chair of the Family Equality Council, the only US non- profit organisation solely dedicated to equality for LGBTQ parents and their families, through advocacy, education and support. Dr Bergman's professional affiliations include the American Psychological Association, Los Angeles County Psychological Association, and the American Society for Reproductive Medicine.
Dr Bergman and her wife of 27 years have two daughters, ages 14  and 11. Born in Los Angeles,  Dr. Bergman completed her Bachelor of Arts degree in psychology at UCLA. She then went on to obtain both her Master's and her Doctoral degrees in psychology at the California School of Professional Psychology Los Angeles.
Dr Bergman will be in Sydney from 10-15 December with the seminar the highlight. The seminar, hosted by Gay Dads NSW, will be particularly focussed on the NSW Surrogacy Act 2010 and what impact it will have on those in NSW accessing overseas commercial surrogacy clinics. This is particularly important given that the Act, which will make it illegal for NSW residents to access overseas commercial surrogacy clinics for the first time,  might take effect as soon as December.
Other speakers at the seminar will be:
 Details of the seminar:
  • Host: Gay Dads NSW
  • Place: Aurora Room, 2010 office, 45 Bedford St, Newtown
  • Date: Tuesday 14 December, 2010
  • Time: 7pm
  • Cost: free
Brisbane: divorce capital of Australia: http://ht.ly/3d5t7 Moving to "paradise" doesn't fix a troubled marriage.

NSW: error

In an earlier post I said that the NSW Surrogacy Act was yet to receive Royal assent. That was wrong. it has already received Royal assent. It is likely that the changes will take early, such as December.

NSW: commercial surrogacy ban extended to overseas clinics

NSW has passed new surrogacy laws which now criminalise those who undertake commercial surrogacy arrangements overseas, such as in California and India. Commercial surrogacy remains illegal in NSW, but until these laws come into force, it has been perfectly legal for NSW residents to undertake commercial surrogacy overseas.

The NSW Surrogacy Act which makes these changes is likely to take effect possibly as soon as December.

NSW copies similar provisions in Qld and the ACT. The other states and territories do not have such a ban.

The section of the new NSW Surrogacy Act is section 11:

11 Geographical nexus for offences
(1) This section applies for the purposes of, and without limiting, Part 1A
of the Crimes Act 1900.
(2) The necessary geographical nexus exists between the State and an
offence against this Division if the offence is committed by a person
ordinarily resident or domiciled in the State.
Note. Section 10C of the Crimes Act 1900 also provides that a geographical
nexus exists between the State and an offence if the offence is committed
wholly or partly in the State or has an effect in the State.

In other words, if you live in Sydney, for example, and you then go to an Indian or Californian surrogacy clinic and enter into a commercial surrogacy arrangement, you commit an offence in NSW. The offence section is here:

8 Commercial surrogacy arrangements prohibited
A person must not enter into, or offer to enter into, a commercial
surrogacy arrangement.
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.

Entering into might happen overseas. Offering to enter into might happen in NSW. A person who has already entered into a commercial surrogacy arrangement overseas before the new laws take effect does not commit an offence under this Act as they will have already have entered into the arrangement. Those contemplating entering into commercial surrogacy arrangements overseas should get good legal advice.

The overseas element was added as a result of an amendement by Linda Burney, the Minister for Community Services, who said:

I draw members' attention to the Queensland surrogacy legislation passed earlier this year. In Queensland it is not lawful to enter a commercial arrangement and it is not possible to get around that by going overseas and entering a commercial arrangement in another country. The bill that is currently before us does not specify that the prohibition on New South Wales citizens entering into commercial surrogacy applies whether they do this in New South Wales or in any other jurisdiction. I will have more to say about that as the debate goes on.

My amendment will rectify that situation and in so doing will give effect to the policy position agreed to by all States and Territories in Australia that commercial surrogacy is not supported in this country. We all know that the desire to be a parent is very powerful. That instinct is an important part of humanity's survival. However, in this brave new world we must protect everybody involved, including the surrogate mother. People have had many discussions about and have put a great deal of effort into the crafting of this bill. I also recognise that people will go to great lengths to be in a position to love and nurture a child. I acknowledge the sadness of people who cannot realise that dream. However, gaining access to children by circumventing local laws and travelling overseas to engage the services of private clinics and then bring the children back to Australia is not a practice that we as the lawmakers of this State should encourage. The Standing Committee of Attorneys-General was clear on that issue in its 2009 discussion paper.

Commercial surrogacy provides a service to intending parents and in so doing it places their needs above the needs of the child. Commercial surrogacy is a growth industry and most overseas arrangements do not provide all the safeguards set out in this bill. The Attorney General said in his second reading speech in the other place that the Government believes that the children resulting from surrogacy arrangements should have access to information about the circumstances of their birth and their genetic history. That is important for a child's psychological wellbeing and their sense of identity and it allows them to avoid what he calls genealogical bewilderment. That term struck me very deeply. The Attorney General is correct: There is nothing more important than to know who you are and where you come from. It is a fundamental human desire and a right.

This is what the NSW Attorney-General John Hatzistergos had to say about this issue:

The first amendment adds a new section that extends the geographical nexus of offences in division 2 of part 2 of the bill so that the relevant relationship exists if the offence is committed by a person ordinarily resident or domiciled in New South Wales. The effect is that if a person ordinarily resident or domiciled in New South Wales commits the offence outside of New South Wales territory, the offence is an offence against the law of this State. On the extraterritoriality of offences, Professor Anne Twomey's The Constitution of New South Wales states:
      Early cases … suggested that the State's legislative powers were confined to the area of their territory and could not have an extraterritorial operation. This doctrine … later developed so that a law could have an extra-territorial application as long as it was a law for "peace, order and good government" of the relevant jurisdiction. There must be a connection between the law and the territory in which it was enacted … The relationship may be presence, residence or domicile … "or even remoter connections".

It is rare for New South Wales to pass laws criminalising conduct that essentially occurred outside the State. However, the reality of surrogacy is that the prohibitions on commercial surrogacy in New South Wales can be and are circumvented by people going to countries that allow it. The Standing Committee of Attorneys-General, as well as various speakers in this and the other place, reconfirmed the position that commercial surrogacy is not in the best interests of children born out of these arrangements. Extending the offences in the bill in this way is consistent with provisions already in place in Queensland and the Australian Capital Territory. It confirms this Parliament's opposition to commercial surrogacy and prevents such arrangements from being used to circumvent our prohibition on it. I support the amendment to the bill.


NSW: regulating altruistic surrogacy

NSW Parliament passed the Surrogacy Act 2010 last week, which for the first time regulates altruistic surrogacy. Altruistic surrogacy is currently legal in NSW, but is unregulated. Unless an adoption order is obtained, it is not possible to change parentage.

It will be possible to obtain a parentage order in NSW once the new laws take effect, likely in December or January. This means that the custody and guardianship of the child (and the names of the parents on the birth certificate) will be able to be changed from the surrogate (and her partner) to the intended parent or parents.

The Surrogacy Act is yet to obtain Royal assent, and is due to commence on a date to be proclaimed. Given the NSW election is to be held in March and the caretaker convention stopping Government business before that, it is likely that the laws will take effect very soon.

Some key features of the Act are:

  • It takes a similar approach to Qld and the ACT. Like rail gauges, unfortunately, the approaches are not identical. Anyone contemplating cross-border surrogacies must not make the mistake that the laws are the same. They are not. They need to get advice from those familiar with the different regimes in each state. I have advised clients about the laws about surrogacy in every state and territory.
  • The Act does not discriminate. Single, married, straight, gay or lesbian- all can be intended parents.
  • There is the light hand of Government. Unlike Victoria and WA, there is no government regulator overseeing all. Instead intending parents and surrogates are left to get on with the job of going ahead with surrogacies, provided that the framework in the Act is complied with. Non-compliance means that a clinic won't treat and that a parentage order won't be made.
  • Commercial surrogacy is banned. Payments can be made to the surrogate for things such as medical expenses, but these have to be carefully dealt with, so that the surrogacy is not turned from altruistic (and approved) to commercial (non-approved and criminal).
  • The surrogate must be 25 years or above (unless it is an arrangement entered into before the Act commences).
  • The intending parents must be 18 or above, although if under 25 there needs to be evidence from a counsellor that they are mature.
  • For intending parents who are men- a medical or social need needs to be established to obtain a parentage order. 
  • For intending parents who are women- while a social need might be established, a medical need must be established. For a lesbian couple, this means that a medical need has to be shown for both intending parents.
  • For all intents and purposes a complying surrogacy arrangement is needed. While a complying surrogacy arrangement is not required, without it treatment is unlikely to be provided, and a parentage order cannot be obtained. 
  • Everyone must have obtained counselling and legal advice before signing up the surrogacy arrangement.
  • The surrogate, her partner, and the intended parent/s must agree to the orders being made.
  • The surrogacy arrangement must be signed before the child is conceived. Like Queensland there is no definition of conception- which means that until there is a ruling, most likely to be in Queensland first, there remains some doubt as to whether embryos created before the arrangement was signed constitute conception. If so, the parentage order cannot be made.
  • The parentage order is made in the Supreme Court.
  • The intended parents must live in NSW. The surrogate can live anywhere.
  • Surrogates and intended parents can only be found by word of mouth. Advertising, including notices on the web, is an offence.
The legal process has two steps:

Before

Before the pregnancy, the surrogacy arrangement is signed up.

After

After the child is born, and handed over, everyone goes to court so that a parentage order can be made to change legal parentage of the child.

Anyone contemplating surrogacy should get knowledgable legal advice first!

Saturday, 20 November 2010

Qld's first surrogacy case

The Queensland Children's Court has decided the first case of its kind under Queensland's Surrogacy Act, making a parentage order in favour of a gay couple.

The child was born on May 11, just before the commencement of the new laws. The Surrogacy Act allows for an amnesty period of up to 2 years for altruistic surrogacies entered into before the Act started. This case was one of those.

In the case, known as BLH and HM v SJW and MW, the first applicant (the biological father of the child) and the first respondent came to a verbal agreement so that the first respondent would become the surrogate for the first applicant's intended child. This agreement was made in consultation with the second applicant and the second respondent, who were fully advised. 


The agreement provided:
(a) the first respondent agreed to become pregnant with the first applicant's child with the intention that a child born as a result of the pregnancy would be treated as a child not of her but of the applicants;
(b) she and the second respondent agreed to relinquish to the applicants custody and guardianship of any child born as a result of the pregnancy;
(c) the applicants agreed to become permanently responsible for the custody and guardianship of any child born as a result of the pregnancy;
(d) the applicants would meet the first respondent's surrogacy and legal costs;
(e) the agreement is not a commercial surrogacy agreement, it is purely altruistic and designed to allow the applicants the opportunity to have a family; and
(f) if possible, following the birth of the child the parties would take all steps and sign all documents necessary to apply to the Childrens Court of Queensland for an order transferring the parentage of the child to the applicants.

Judge Irwin stated:
The applicants attended at the hospital for the birth. On the following day the applicants took the child home ... The child has lived permanently with the applicants since that time. They have provided for the child's day-to-day needs, including his physical, emotional, psychological and development needs.

After the child was born, the parties entered into a written surrogacy arrangement, reflecting what had already been agreed. 


His Honour found that the surrogacy arrangement was for the wellbeing and in the best interests of the child:


I am satisfied that this is the case because, as set out in the evidence before me, for example, [in the surrogate's affidavit] it is deposed that it is believed that it is in the child's best interests that a parentage order be made so he has the same status, protection and support available to him as any other child not born of such an arrangement or born of a post-commencement surrogacy arrangement. 

For example, his rights under succession law and in relation to financial support.
Further, the [surrogate] believes that the child will suffer social disadvantage should his birth certificate not record the applicants as his parents, for example, when enrolling the child in school or other activities or when making decisions in relation to his health and welfare, which would ordinarily be made by a recognised legal guardian...


The explanatory notes to the Surrogacy Bill 2009 suggest that these are the primary reasons why the Parliament has legislated for and provided a two year window of opportunity for applications to be filed in relation to children born as a result of pre-commencement surrogacy arrangements. The explanatory notes confirm the Parliamentary intent that
pre-commencement children have the right to the same status, support and protection available as any other children.
As is submitted on behalf of the applicants, pages 10-12 of the explanatory notes provide insight into the reasons why a transfer of parentage is beneficial. For example, it is stated on page 10 of the explanatory notes:
"If the parent-child relationship is not legally recognised the child will have reduced rights or entitlements than other children within the community. These include reduced rights under succession law, both under intestacy and if contesting a will of the intended parent under the family maintenance provisions of the Succession Act 1981. Also, if the parentage of the child is not transferred to the intended parents the child may have a claim against the estate of the birth parents in certain circumstances. This creates uncertainty for the birth parents, particularly in relation to the distribution of their estate to other children they may have."
Further, at page 11 of the notes it is stated:

"The Bill allows the parentage order to be registered with the Births, Deaths and Marriages Registry so that the birth certificate will show the intended parents as parents of the child. Recording details of the intended parents on the child's entry on the birth register will confirm the legal status of the child and avoid any social disadvantage to the child.
...
There could be social disadvantage if the child's birth certificate does not show the intended parents as the child's parents. This could occur in situations when the child is to be registered for school or with a sporting club that requires lodgment of the child's birth certificate. Further, this may affect the ability of the intended parents to engage with service providers, health professionals or others involved with the child because they are not recognised as the child's legal guardians."

Further, it is submitted on behalf of the applicants that page 15 of the explanatory notes provide insight into the Parliamentary intent concerning children born of a pre-commencement surrogacy arrangement. It is noted that it had been found that there were already some children who were born as a result of a surrogacy arrangement in Queensland. 

It is stated that a child born under such an arrangement does not enjoy the same legal certainty and status of other children and it was for these reasons that the Bill allows intended parents of a child who is born before the Bill commences or born pursuant to a surrogacy agreement entered into before the Bill commences to apply to the Court for a parentage order. In particular, it is stated:
 
"The retrospective application of the Bill is important to ensure that all children experience the same status and legal certainty regardless of the circumstances that resulted in their birth."

For these reasons I find that in accordance with section 63(4)(a) of the Act it is for the well-being and in the best interests of the child, who was born as a result of the pre-commencement surrogacy arrangement, to dispense with the requirements that I have identified.

Comment

The case is a useful first step in decisions about how the Surrogacy Act 2010 Qld will take effect.

A feature of any altruistic surrogacy  now entered into Queensland is that it requires a written surrogacy arrangement to be in place before the child was conceived and after legal advice and counselling steps have occurred.. If the facts were to be repeated, with the child conceived after 1 June 2010, the applicants could not have obtained a parentage order. It is vital that anyone contemplating surrogacy get expert advice- it is a process that can contain legal traps.
The legal case for gay marriage: http://ht.ly/3cMLA

The legal case for gay marriage

The case for gay marriage has been well expressed by Americans, and in particular American lawmakers, so I am going to wax American for a while. Sorry about the length...

Equality

The case for same sex marriage or gay marriage is really very simple: to quote Jefferson: "All men are created equal." This fundamental notion of equality before the law is one of our society's most basic constructs. If we cannot have equality before the law, then the law falls into disrepute, the rule of law is not followed, and most significantly, discrimination occurs.

Last night it was put to me that gay and lesbian people don't need marriage. That somehow they're not ready for marriage, but if they're going to be granted the right to have their relationship recognised, then why not give them civil unions.

This argument misses the point. Many gay and lesbian people want to get married, or at the least have the choice of marriage. The power of being able to choose one's destiny- isn't that a fundamental concept of our society? How can that truly be given to people when they are not able to choose to marry?

As one of my gay friends put it: "When I was at my sister's wedding I cried. I cried because I realised that I, unlike my sister and her husband, did not have the choice of marriage. I cried because I realised that my government was treating me as a second class citizen."

Don't believe the phony legal arguments

All that is needed to include same sex marriage is getting a majority in Parliament to alter the definition in section 5 of the Marriage Act.
Yesterday  Madonna King on 612ABC Brisbane said to me that another lawyer had suggested that to legislate for same sex marriage would mean a constitutional change. In other words something that is almost impossible to achieve, so why bother. I told Madonna that I didn't see any substance in the argument.

Here's how the argument would go. The Marriage Act was enacted in 1961. It did not then say that marriage was only between a man and a woman. The Act adopted English caselaw as to what constituted marriage, and left silent the gender of those getting married, presumably because it was thought so obvious (and sex between men then was illegal throughout Australia) that it didn't need to be said.

Section 5 of the Marriage Act was amended by the Howard Government (with ALP support) to make explicit this definition, in case gay and lesbian couples sought to have their marriages recognised. The new definition says:

"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. 

The basis that the Commonwealth Parliament has to enact laws about marriage is contained in section 51 of the Commonwealth Constitution:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:...
                     
                   (xxi)  marriage;

There is no definition of "marriage" in the Constitution. The legal argument about why constitutional change is needed goes like this (the Model T argument):

  1. in 1901, at the time of contemplation of federation, the Founding Fathers knew only one type and contemplated one type of marriage ie that set out in the Marriage Act definition;
  2. therefore that is the only type of marriage that the Commonwealth can legislate about.
The problem for the proponents of this argument is that it has two fundamental errors:

  1. The High Court has long recognised about how things change, so it is unlikely that the High Court would adopt this approach; and
  2. If the High Court were to make perfectly clear that the Commonwealth could not make laws about same sex marriage, then each of the States could. This would mean that we could have potentially 9 systems of marriage for  people in Australia: if you're in a straight relationship- you're under the Marriage Act; if you're gay or lesbian - one for each State and Territory (as the Commonwealth could legislate for same sex marriage in the ACT, NT and Norfolk Island, relying on the territories power under the constitution).
The likely High Court approach

The High Court will likely legitimise an amendment to the Marriage Act to allow same sex marriage. The alternative is potential chaos- which is exactly what the Founding Fathers wished to avoid.

If the legal argument were to follow that because same sex marriage were not contemplated by the Founding Fathers, and therefore cannot be legislated by the Commonwealth Parliament, then the whole basis of the regulation of TV, radio and the internet would likely fail. Currently these are largely regulated by the Commonwealth. The Commonwealth Parliament's ability to legislate is largely reliant on this section of section 51 of the Commonwealth Constitution:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
                     
                     (v)  postal, telegraphic, telephonic, and other like services;

The High Court recognised with the birth of radio that this extended to radio (although it was not invented in 1901), and this provision has extended with technology since.

The argument against civil unions

The argument was best put by the Connecticut Supreme Court. Connecticut was one of the first US States to legislate for civil unions. Gay and lesbians who wanted to marry challenged the law, saying that they wanted to marry, and that a civil unions denied them this fundamental right. The Supreme Court agreed with them. This is what it had to say:

The defendants’ motion for summary judgment, they asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy.
The defendants also maintained that this state’s ban on same sex marriage does not deprive the plaintiffs of a
fundamental right because, since ancient times, marriage has been understood to be the union of a man
and a woman, and only such rights that are ‘‘deeply rooted in this [n]ation’s history and tradition . . . and
implicit in the concept of ordered liberty’’ are deemed to be fundamental. .... The defendants contended that, in light of the universally understood definition of marriage as the union of a man and a woman, the right that the plaintiffs were asserting, namely, the right to marry ‘‘any person of one’s choosing,’’ is not a fundamental right.
The defendants also asserted that our statutory scheme does not discriminate on the basis of sex because, inter alia, it does not single out men or women  as a class for disparate treatment, the touchstone of
any sex discrimination claim. Those laws also do not discriminate on the basis of sexual orientation, the
defendants maintained, because gay persons are not prohibited from marrying. According to the defendants,
our laws are facially neutral because they treat homosexual and heterosexual persons alike by providing that
anyone who wishes to marry may do so with a person of the opposite sex....

The plaintiffs challenge the trial court’s conclusion
that the distinction between marriage and civil unions
is merely one of nomenclature. They contend that marriage
is not simply a term denominating a bundle of
legal rights. Rather, they contend that it is an institution
of unique and enduring importance in our society, one
that carries with it a special status. The plaintiffs therefore
contend that their claim of unequal treatment cannot
be dismissed solely because same sex couples who
enter into a civil union enjoy the same rights under
state law as married couples. The plaintiffs also claim
that we must consider the legislature’s decision to create
civil unions for same sex couples in the context of
the historical condemnation and discrimination that gay
persons have suffered.... We agree with the plaintiffs
that, despite the legislature’s recent establishment of
civil unions, the restriction of marriage to opposite sex
couples implicates the constitutional rights of gay persons
who wish to marry a person of the same sex....
A cognizable constitutional claim arises whenever
the government singles out a group for differential treatment.
The legislature has subjected gay persons to precisely
that kind of differential treatment by creating a
separate legal classification for same sex couples who,
like opposite sex couples, wish to have their relationship
recognized under the law. Put differently, the civil
union law entitles same sex couples to all of the same
rights as married couples except one, that is, the freedom
to marry, a right that ‘‘has long been recognized
as one of the vital personal rights essential to the orderly
pursuit of happiness by free men [and women]’’ and
‘‘fundamental to our very existence and survival.’’... Indeed, marriage has been characterized
as ‘‘intimate to the degree of being sacred’’; ... (‘‘many
religions recognize marriage as having spiritual significance’’);
and ‘‘an institution more basic in our civilization
than any other.’’ ... Marriage,
therefore, is not merely shorthand for a discrete set of
legal rights and responsibilities but is ‘‘one of the most
fundamental of human relationships . . . .’’ ... ‘‘Marriage
. . . bestows enormous private and social advantages
on those who choose to marry. Civil marriage is at once
a deeply personal commitment to another human being
and a highly public celebration of the ideals of mutuality,
companionship, intimacy, fidelity, and family. . . .
Because it fulfills yearnings for security, safe haven,
and connection that express our common humanity,
civil marriage is an esteemed institution . . . .’’ ...
Especially in light of the long and undisputed history
of invidious discrimination that gay persons have suffered;
...we cannot discount
the plaintiffs’ assertion that the legislature, in establishing
a statutory scheme consigning same sex couples to
civil unions, has relegated them to an inferior status,
in essence, declaring them to be unworthy of the institution
of marriage. In other words, ‘‘[b]y excluding samesex
couples from civil marriage, the [s]tate declares
that it is legitimate to differentiate between their commitments
and the commitments of heterosexual couples.
Ultimately, the message is that what same-sex
couples have is not as important or as significant as
‘real’ marriage, that such lesser relationships cannot
have the name of marriage
.’’...
(‘‘[t]he 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 samesex
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’’); ... (‘‘[t]he dissimilitude
between the terms ‘civil marriage’ and ‘civil union’
is not innocuous; it is a considered choice of language
that reflects a demonstrable assigning of same-sex,
largely homosexual, couples to second-class status’’).
Although the legislature has determined that same sex
couples are entitled to ‘‘all the same benefits, protections
and responsibilities . . . [that] are granted to
spouses in a marriage’’; ...
the legislature nonetheless created an entirely separate
and distinct legal entity for same sex couples even
though it readily could have made those same rights
available to same sex couples by permitting them to
marry. In view of the exalted status of marriage in
our society, it is hardly surprising that civil unions are
perceived to be inferior to marriage. We therefore agree
with the plaintiffs that ‘‘[m]aintaining a second-class
citizen status for same-sex couples by excluding them
from the institution of civil marriage is the constitutional
infirmity at issue.
’’...

Although marriage and
civil unions do embody the same legal rights under
our law, they are by no means ‘‘equal.’’ As we have
explained, the former is an institution of transcendent
historical, cultural and social significance, whereas the
latter most surely is not. Even though the classifications
created under our statutory scheme result in a type of
differential treatment that generally may be characterized
as symbolic or intangible, this court correctly has
stated that such treatment nevertheless ‘‘is every bit as
restrictive as naked exclusions’’; ... because it is no less real than more
tangible forms of discrimination
, at least when, as in
the present case, the statute singles out a group that
historically has been the object of scorn, intolerance,
ridicule or worse.
We do not doubt that the civil union law was designed
to benefit same sex couples by providing them with
legal rights that they previously did not have. If, however,
the intended effect of a law is to treat politically
unpopular or historically disfavored minorities differently
from persons in the majority or favored class,
that law cannot evade constitutional review under the
separate but equal doctrine. ...In such circumstances, the very existence
of the classification gives credence to the perception
that separate treatment is warranted for the same
illegitimate reasons that gave rise to the past discrimination
in the first place.
Despite the truly laudable effort
of the legislature in equalizing the legal rights afforded
same sex and opposite sex couples, there is no doubt
that civil unions enjoy a lesser status in our society
than marriage.
All the other dodgy reasons why marriage is said to exclude same sex people

All the other arguments were debunked by the Iowa Supreme Court. In Iowa several gay and lesbian couples successfully challenged the law that prevented them from getting married. This is what the Iowa Supreme Court had to say:

Unlike opposite-sex couples in Iowa, same-sex couples are not
permitted to marry in Iowa. The Iowa legislature amended the marriage
statute in 1998 to define marriage as a union between only a man and a
woman.2 Despite this law, the six same-sex couples in this litigation asked
the Polk County recorder to issue marriage licenses to them. The recorder,
following the law, refused to issue the licenses, and the six couples have
been unable to be married in this state. Except for the statutory restriction
that defines marriage as a union between a man and a woman, the twelve
plaintiffs met the legal requirements to marry in Iowa....

The County offered five
primary interests of society in support of the legislature’s exclusive definition
of marriage. The first three interests are broadly related to the advancement
of child rearing. Specifically, the objectives centered on promoting
procreation, promoting child rearing by a mother and a father within a marriage, and promoting stability in an opposite-sex relationship to raise
and nurture children. The fourth interest raised by the County addressed
the conservation of state resources, while the final reason concerned the
governmental interest in promoting the concept and integrity of the
traditional notion of marriage.
Much of the testimony presented by the County was in the form of
opinions by various individuals that same-sex marriage would harm the
institution of marriage and also harm children raised in same-sex marriages.
Two college professors testified that a heterosexual marriage is, overall, the
optimal forum in which to raise children. A retired pediatrician challenged
the accuracy of some of the medical research that concludes there is no
significant difference between children raised by same-sex couples and
opposite-sex couples. A clinical psychologist testified sexual orientation is
not as defined and stable as race and gender and can change over time. He
acknowledged, however, it is difficult to change a person’s sexual orientation,
and efforts to do so can be harmful to the person.
The plaintiffs produced evidence to demonstrate sexual orientation
and gender have no effect on children raised by same-sex couples, and
same-sex couples can raise children as well as opposite-sex couples. They
also submitted evidence to show that most scientific research has repudiated
the commonly assumed notion that children need opposite-sex parents or
biological parents to grow into well-adjusted adults. Many leading
organizations, including the American Academy of Pediatrics, the American
Psychiatric Association, the American Psychological Association, the National
Association of Social Workers, and the Child Welfare League of America,
weighed the available research and supported the conclusion that gay and
lesbian parents are as effective as heterosexual parents in raising children.
For example, the official policy of the American Psychological Association
declares, “There is no scientific evidence that parenting effectiveness is
related to parental sexual orientation: Lesbian and gay parents are as likely
as heterosexual parents to provide supportive and healthy environments for
children.” Almost every professional group that has studied the issue
indicates children are not harmed when raised by same-sex couples, but to
the contrary, benefit from them. In Iowa, agencies that license foster parents
have found same-sex couples to be good and acceptable parents. It is
estimated that more than 5800 same-sex couples live throughout Iowa, and
over one-third of these couples are raising children....
It is true the marriage statute does not expressly prohibit gay and
lesbian persons from marrying; it does, however, require that if they marry,
it must be to someone of the opposite sex. Viewed in the complete context of
marriage, including intimacy, civil marriage with a person of the opposite sex
is as unappealing to a gay or lesbian person as civil marriage with a person
of the same sex is to a heterosexual. Thus, the right of a gay or lesbian
person under the marriage statute to enter into a civil marriage only with a
person of the opposite sex is no right at all. Under such a law, gay or
lesbian individuals cannot simultaneously fulfill their deeply felt need for a
committed personal relationship, as influenced by their sexual orientation,
and gain the civil status and attendant benefits granted by the statute.
Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay
and lesbian people as a class—their sexual orientation. .... The benefit denied by the marriage statute—the
status of civil marriage for same-sex couples—is so “closely correlated with
being homosexual” as to make it apparent the law is targeted at gay and
lesbian people as a class....
The
County does not, and could not in good faith, dispute the historical reality
that gay and lesbian people as a group have long been the victim of
purposeful and invidious discrimination because of their sexual orientation.
The long and painful history of discrimination against gay and lesbian
persons is epitomized by the criminalization of homosexual conduct in many
parts of this country until very recently. ... Additionally, only a few years ago persons
identified as homosexual were dismissed from military service regardless of
past dedication and demonstrated valor. Public employees identified as gay
or lesbian have been thought to pose security risks due to a perceived risk of
extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual
orientation in the cruel mortar and pestle of school-yard prejudice. At the
same time, lesbian and gay people continue to be frequent victims of hate
crimes. See Criminal Justice Information Servs. Div., FBI, Hate Crime
Statistics 2007, http://www.fbi.gov/ucr/hc2007/victims.htm (according to
FBI-collected data, the only hate crimes occurring more frequently than
sexual-orientation-motivated hate crimes are crimes based on race or
religious bias)....
Rather, we merely highlight the reality that chapter 216
and numerous other statutes and regulations demonstrate sexual
orientation is broadly recognized in Iowa to be irrelevant to a person’s ability
to contribute to society... Those statutes and regulations reflect at least
some measure of legislative and executive awareness that discrimination
based on sexual orientation is often predicated on prejudice and stereotype
and further express a desire to remove sexual orientation as an obstacle to
the ability of gay and lesbian people to achieve their full potential. Therefore,
we must scrutinize more closely those classifications that suggest a law may
be based on prejudice and stereotype because laws of that nature are
“incompatible with the constitutional understanding that each person is to
be judged individually and is entitled to equal justice under the law.”...
It is also important to observe that the political power of gays and
lesbians, while responsible for greater acceptance and decreased
discrimination, has done little to remove barriers to civil marriage. Although
a small number of state legislatures have approved civil unions for gay and
lesbian people without judicial intervention, no legislature has secured the
right to civil marriage for gay and lesbian people without court order.22 The
myriad statutes and regulatory protections against discrimination based on
sexual orientation in such areas as employment, housing, public
accommodations, and education have not only been absent in the area of
marriage, but legislative bodies have taken affirmative steps to shore up the
concept of traditional marriage by specifically excluding gays and lesbians.
Like Iowa, over forty other states have passed statutes or constitutional
amendments to ban same-sex marriages....

[The County's arguments against same sex marriage debunked]:

a. Maintaining traditional marriage. First, the County argues the
same-sex marriage ban promotes the “integrity of traditional marriage” by
“maintaining the historical and traditional marriage norm ([as] one between
a man and a woman).” This argument is straightforward and has superficial
appeal. A specific tradition sought to be maintained cannot be an important
governmental objective for equal protection purposes, however, when the
tradition is nothing more than the historical classification currently
expressed in the statute being challenged. When a certain tradition is used
as both the governmental objective and the classification to further that
objective, the equal protection analysis is transformed into the circular
question of whether the classification accomplishes the governmental
objective, which objective is to maintain the classification. In other words,
the equal protection clause is converted into a “ ‘barren form of words’ ”
when “ ‘discrimination . . . is made an end in itself.’ ” Tussman & tenBroek,
37 Cal. L. Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7,
10, 60 L. Ed. 131, 135 (1915)).
This precise situation is presented by the County’s claim that the
statute in this case exists to preserve the traditional understanding of
marriage. The governmental objective identified by the County—to maintain
the traditional understanding of marriage—is simply another way of saying
the governmental objective is to limit civil marriage to opposite-sex couples.
Opposite-sex marriage, however, is the classification made under the
statute, and this classification must comply with our principles of equal
protection. Thus, the use of traditional marriage as both the governmental
objective and the classification of the statute transforms the equal protection
analysis into the question of whether restricting marriage to opposite-sex
couples accomplishes the governmental objective of maintaining opposite-sex
marriage.
This approach is, of course, an empty analysis. It permits a
classification to be maintained “ ‘for its own sake.’ ” Kerrigan, 957 A.2d at
478 (quoting Romer, 517 U.S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at
868). Moreover, it can allow discrimination to become acceptable as
tradition and helps to explain how discrimination can exist for such a long
time. If a simple showing that discrimination is traditional satisfies equal
protection, previous successful equal protection challenges of invidious
racial and gender classifications would have failed. Consequently, equal
protection demands that “ ‘the classification ([that is], the exclusion of gay
[persons] from civil marriage) must advance a state interest that is separate
from the classification itself.’ ” Id. (quoting Hernandez v. Robles, 855 N.E.2d
1, 33 (N.Y. 2006) (Kaye, C.J., dissenting)); see also Romer, 517 U.S. at 635,
116 S. Ct. at 1629, 134 L. Ed. 2d at 868 (rejecting “classification of persons
undertaken for its own sake”).
“[W]hen tradition is offered to justify preserving a statutory scheme
that has been challenged on equal protection grounds, we must determine
whether the reasons underlying that tradition are sufficient to satisfy
constitutional requirements.” Kerrigan, 957 A.2d at 478–79 (emphasis
added). Thus, we must analyze the legislature’s objective in maintaining the
traditional classification being challenged.
The reasons underlying traditional marriage may include the other
objectives asserted by the County, objectives we will separately address in
this decision. However, some underlying reason other than the preservation
of tradition must be identified. Because the County offers no particular
governmental reason underlying the tradition of limiting civil marriage to
heterosexual couples, we press forward to consider other plausible reasons
for the legislative classification.

b. Promotion of optimal environment to raise children. Another
governmental objective proffered by the County is the promotion of “child
rearing by a father and a mother in a marital relationship which social
scientists say with confidence is the optimal milieu for child rearing.” This
objective implicates the broader governmental interest to promote the best
interests of children.
The “best interests of children” is, undeniably, an
important governmental objective. Yet, we first examine the underlying
premise proffered by the County that the optimal environment for children is
to be raised within a marriage of both a mother and a father.
Plaintiffs presented an abundance of evidence and research, confirmed
by our independent research, supporting the proposition that the interests of
children are served equally by same-sex parents and opposite-sex parents.
On the other hand, we acknowledge the existence of reasoned opinions that
dual-gender parenting is the optimal environment for children. These
opinions, while thoughtful and sincere, were largely unsupported by reliable
scientific studies.
Even assuming there may be a rational basis at this time to believe the
legislative classification advances a legitimate government interest, this
assumed fact would not be sufficient to survive the equal protection analysis
applicable in this case. In order to ensure this classification based on sexual
orientation is not borne of prejudice and stereotype, intermediate scrutiny
demands a closer relationship between the legislative classification and the
purpose of the classification than mere rationality. Under intermediate
scrutiny, the relationship between the government’s goal and the
classification employed to further that goal must be “substantial.” Clark,
486 U.S. at 461, 108 S. Ct. at 1914, 100 L. Ed. 2d at 472. In order to
evaluate that relationship, it is helpful to consider whether the legislation is
over-inclusive or under-inclusive. See RACI II, 675 N.W.2d at 10
(considering under-inclusion and over-inclusion even in the rational basis
context)....
We begin with the County’s argument that the goal of the same-sex
marriage ban is to ensure children will be raised only in the optimal milieu.
In pursuit of this objective, the statutory exclusion of gay and lesbian people
is both under-inclusive and over-inclusive. The civil marriage statute is
under-inclusive because it does not exclude from marriage other groups of
parents—such as child abusers, sexual predators, parents neglecting to
provide child support, and violent felons—that are undeniably less than
optimal parents. Such under-inclusion tends to demonstrate that the
sexual-orientation-based classification is grounded in prejudice
or
“overbroad generalizations about the different talents, capacities, or
preferences” of gay and lesbian people, rather than having a substantial
relationship to some important objective. See Virginia, 518 U.S. at 533, 116
S. Ct. at 2275, 135 L. Ed. 2d at 751 (rejecting use of overbroad
generalizations to classify). If the marriage statute was truly focused on
optimal parenting, many classifications of people would be excluded, not
merely gay and lesbian people.
Of course, “[r]eform may take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legislative mind.”
Knepper v. Monticello State Bank, 450 N.W.2d 833, 837 (Iowa 1990) (citing
Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99
L. Ed. 563, 573 (1955)). Thus, “[t]he legislature may select one phase of one
field and apply a remedy there, neglecting the others.” Williamson, 348 U.S.
at 489, 75 S. Ct. at 465, 99 L. Ed. at 573. While a statute does not
automatically violate equal protection merely by being under-inclusive, the
degree of under-inclusion nonetheless indicates the substantiality of the
relationship between the legislative means and end.
As applied to this case, it could be argued the same-sex marriage ban
is just one legislative step toward ensuring the optimal environment for
raising children. Under this argument, the governmental objective is slightly
more modest. It seeks to reduce the number of same-sex parent households,
nudging our state a step closer to providing the asserted optimal milieu for
children. Even evaluated in light of this narrower objective, however, the
ban on same-sex marriage is flawed.

The ban on same-sex marriage is substantially over-inclusive because
not all same-sex couples choose to raise children. Yet, the marriage statute
denies civil marriage to all gay and lesbian people in order to discourage the
limited number of same-sex couples who desire to raise children. In doing
so, the legislature includes a consequential number of “individuals within
the statute’s purview who are not afflicted with the evil the statute seeks to
remedy.” Conaway, 932 A.2d at 649 (Raker, J., concurring in part and
dissenting).
At the same time, the exclusion of gay and lesbian people from
marriage is under-inclusive, even in relation to the narrower goal of
improving child rearing by limiting same-sex parenting. Quite obviously, the
statute does not prohibit same-sex couples from raising children. Same-sex
couples currently raise children in Iowa, even while being excluded from civil
marriage, and such couples will undoubtedly continue to do so.
Recognition
of this under-inclusion puts in perspective just how minimally the same-sex
marriage ban actually advances the purported legislative goal. A law so
simultaneously over-inclusive and under-inclusive is not substantially
related to the government’s objective. In the end, a careful analysis of the over- and under-inclusiveness of the statute reveals it is less about using
marriage to achieve an optimal environment for children and more about
merely precluding gay and lesbian people from civil marriage.

If the statute was truly about the best interest of children, some
benefit to children derived from the ban on same-sex civil marriages would
be observable. Yet, the germane analysis does not show how the best
interests of children of gay and lesbian parents, who are denied an
environment supported by the benefits of marriage under the statute, are
served by the ban. Likewise, the exclusion of gays and lesbians from
marriage does not benefit the interests of those children of heterosexual
parents, who are able to enjoy the environment supported by marriage with
or without the inclusion of same-sex couples.

The ban on same-sex civil marriage can only logically be justified as a
means to ensure the asserted optimal environment for raising children if
fewer children will be raised within same-sex relationships or more
children will be raised in dual-gender marriages.
Yet, the same-sex-marriage
ban will accomplish these outcomes only when people in same-sex
relationships choose not to raise children without the benefit of marriage or
when children are adopted by dual-gender couples who would have been
adopted by same-sex couples but for the same-sex civil marriage ban. We
discern no substantial support for this proposition. These outcomes, at
best, are minimally advanced by the classification. Consequently, a
classification that limits civil marriage to opposite-sex couples is simply not
substantially related to the objective of promoting the optimal environment
to raise children. This conclusion suggests stereotype and prejudice, or
some other unarticulated reason, could be present to explain the real
objectives of the statute.
c. Promotion of procreation. The County also proposes that
government endorsement of traditional civil marriage will result in more
procreation. It points out that procreation is important to the continuation
of the human race, and opposite-sex couples accomplish this objective
because procreation occurs naturally within this group. In contrast, the
County points out, same-sex couples can procreate only through assisted
reproductive techniques, and some same-sex couples may choose not to
procreate.
While heterosexual marriage does lead to procreation, the
argument by the County fails to address the real issue in our required
analysis of the objective: whether exclusion of gay and lesbian individuals
from the institution of civil marriage will result in more procreation? If
procreation is the true objective, then the proffered classification must work
to achieve that objective.
Conceptually, the promotion of procreation as an objective of marriage
is compatible with the inclusion of gays and lesbians within the definition of
marriage. Gay and lesbian persons are capable of procreation. Thus, the
sole conceivable avenue by which exclusion of gay and lesbian people from
civil marriage could promote more procreation is if the unavailability of civil
marriage for same-sex partners caused homosexual individuals to “become”
heterosexual in order to procreate within the present traditional institution
of civil marriage.
The briefs, the record, our research, and common sense do
not suggest such an outcome. Even if possibly true, the link between
exclusion of gay and lesbian people from marriage and increased procreation
is far too tenuous to withstand heightened scrutiny. Specifically, the statute
is significantly under-inclusive with respect to the objective of increasing
procreation because it does not include a variety of groups that do not
procreate for reasons such as age, physical disability, or choice. In other
words, the classification is not substantially related to the asserted
legislative purpose.
d. Promoting stability in opposite-sex relationships. A fourth suggested
rationale supporting the marriage statute is “promoting stability in opposite
sex relationships.” While the institution of civil marriage likely encourages
stability in opposite-sex relationships, we must evaluate whether excluding
gay and lesbian people from civil marriage encourages stability in opposite sex
relationships. The County offers no reasons that it does, and we can
find none. The stability of opposite-sex relationships is an important
governmental interest, but the exclusion of same-sex couples from marriage
is not substantially related to that objective.
e. Conservation of resources.
The conservation of state resources is
another objective arguably furthered by excluding gay and lesbian persons
from civil marriage. The argument is based on a simple premise: couples
who are married enjoy numerous governmental benefits, so the state’s fiscal
burden associated with civil marriage is reduced if less people are allowed to
marry. In the common sense of the word, then, it is “rational” for the
legislature to seek to conserve state resources by limiting the number of
couples allowed to form civil marriages. By way of example, the County
hypothesizes that, due to our laws granting tax benefits to married couples,
the State of Iowa would reap less tax revenue if individual taxpaying gay and
lesbian people were allowed to obtain a civil marriage. Certainly, Iowa’s
marriage statute causes numerous government benefits, including tax
benefits, to be withheld from plaintiffs.28 Thus, the ban on same-sex
marriages may conserve some state resources. Excluding any group from
civil marriage—African-Americans, illegitimates, aliens, even red-haired
individuals—would conserve state resources in an equally “rational” way.
Yet, such classifications so obviously offend our society’s collective sense of
equality that courts have not hesitated to provide added protections against
such inequalities.... Exclusion of all same-sex couples is an extremely blunt
instrument for conserving state resources through limiting access to civil
marriage. In other words, the exclusion of same-sex couples is overinclusive
because many same-sex couples, if allowed to marry, would not
use more state resources than they currently consume as unmarried
couples. To reference the County’s example, while many heterosexual
couples who have obtained a civil marriage do not file joint tax returns—or
experience any other tax benefit from marital status—many same-sex
couples may not file a joint tax return either.
The two classes created by the
statute—opposite-sex couples and same-sex couples—may use the same
amount of state resources. Thus, the two classes are similarly situated for
the purpose of conserving state resources, yet the classes are treated
differently by the law. In this way, sexual orientation is a flawed indicator of
resource usage.
Just as exclusion of same-sex couples from marriage is a blunt
instrument, however, it is also significantly undersized if the true goal is to
conserve state resources. That is to say, the classification is underinclusive.
The goal of conservation of state resources would be equally
served by excluding any similar-sized group from civil marriage. Indeed,
under the County’s logic, more state resources would be conserved by
excluding groups more numerous than Iowa’s estimated 5800 same-sex
couples (for example, persons marrying for a second or subsequent time).
Importantly, there is also no suggestion same-sex couples would use more
state resources if allowed to obtain a civil marriage than heterosexual
couples who obtain a civil marriage.
Such over-inclusion and under-inclusion demonstrates the trait of
sexual orientation is a poor proxy for regulating aspiring spouses’ usage of
state resources. This tenuous relationship between the classification and its
purpose demonstrates many people who are similarly situated with respect
to the purpose of the law are treated differently. As a result, the sexualorientation-
based classification does not substantially further the suggested
governmental interest, as required by intermediate scrutiny.
4. Conclusion. Having examined each proffered governmental
objective through the appropriate lens of intermediate scrutiny, we conclude
the sexual-orientation-based classification under the marriage statute does
not substantially further any of the objectives. While the objectives asserted
may be important (and many undoubtedly are important), none are
furthered in a substantial way by the exclusion of same-sex couples from
civil marriage. Our equal protection clause requires more than has been
offered to justify the continued existence of the same-sex marriage ban
under the statute.
I. Religious Opposition to Same-Sex Marriage. Now that we have
addressed and rejected each specific interest advanced by the County to
justify the classification drawn under the statute, we consider the reason for
the exclusion of gay and lesbian couples from civil marriage left unspoken by
the County: religious opposition to same-sex marriage.
The County’s silence
reflects, we believe, its understanding this reason cannot, under our Iowa
Constitution, be used to justify a ban on same-sex marriage.
While unexpressed, religious sentiment most likely motivates many, if
not most, opponents of same-sex civil marriage and perhaps even shapes the
views of those people who may accept gay and lesbian unions but find the
notion of same-sex marriage unsettling
. Consequently, we address the
religious undercurrent propelling the same-sex marriage debate as a means
to fully explain our rationale for rejecting the dual-gender requirement of the
marriage statute.
It is quite understandable that religiously motivated opposition to
same-sex civil marriage shapes the basis for legal opposition to same-sex
marriage, even if only indirectly. Religious objections to same-sex marriage
are supported by thousands of years of tradition and biblical
interpretation. The belief that the “sanctity of marriage” would be
undermined by the inclusion of gay and lesbian couples bears a striking
conceptual resemblance to the expressed secular rationale for maintaining
the tradition of marriage as a union between dual-gender couples, but better
identifies the source of the opposition. Whether expressly or impliedly,
much of society rejects same-sex marriage due to sincere, deeply ingrained—
even fundamental—religious belief.

Yet, such views are not the only religious views of marriage. As
demonstrated by amicus groups, other equally sincere groups and people in
Iowa and around the nation have strong religious views that yield the
opposite conclusion.
This contrast of opinions in our society largely explains the absence of
any religion-based rationale to test the constitutionality of Iowa’s same-sex
marriage ban. ...
The statute at issue in this case does not prescribe a definition of marriage
for religious institutions. Instead, the statute declares, “Marriage is a civil
contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus,
in pursuing our task in this case, we proceed as civil judges, far removed
from the theological debate of religious clerics, and focus only on the concept
of civil marriage and the state licensing system that identifies a limited class
of persons entitled to secular rights and benefits associated with civil
marriage.