Last week I presented to Dr Glenn Sterling and colleagues and staff at Life Fertility Clinic in Brisbane, focusing on Queensland's surrogacy laws...
With
Their Eyes Wide Open
Presentation
to Life Fertility Clinic
11
August, 2011
by Stephen Page
Partner, Harrington Family Lawyers[1]
Partner, Harrington Family Lawyers[1]
Introduction
Queensland, like all the other States and
Territories, has recently legislated to allow and to regulate altruistic
surrogacy. It does so in the Surrogacy
Act 2010 Qld. Commercial
surrogacy remains illegal. This paper will describe how we got to the Surrogacy Act 2010 and a guide to some
key provisions of that Act.
Some
history
Surrogacy, at least in its traditional
sense, has existed at least since the time of the Old Testament.[2] Arrangements regarding surrogacy were not the
subject of any regulation and there is no question that surrogacy arrangements
by their nature were not binding as they would be considered void as against
public policy.
With the rise of IVF and ART, it was
suddenly realised that gestational surrogacy was possible and as a result
regulation was brought in by various Parliaments so as to either regulate or
prohibit surrogacy.
The approach taken in Queensland
was the harshest in the Australia. The Surrogate
Parenthood Act 1988 prohibited surrogacy, whether altruistic or commercial,
to such an extent that to enter into a surrogacy arrangement in Queensland was an offence and it was also an offence for
a person ordinarily resident in Queensland to
enter into any form of surrogacy outside of Queensland.[3]
By virtue of the provisions of the
Criminal Code it also meant that if anyone aided and abetted[4],
counselled[5]
or procured[6]
the engaging in of surrogacy, then they also committed an offence.
New
South Wales
is a useful comparison. Under the Assisted Reproductive Technology Act 2007,
commercial surrogacy was banned including as a criminal offence[7],
but altruistic surrogacy was simply not referred to as if it did not exist, and
was therefore legal. However, there was
no mechanism, aside from adoption, to allow for the transfer of parentage.
Adoption as a mechanism had clear limitations.
Victoria took a different approach again. Its Infertility
Treatment Act 1995 prohibited surrogacy in all its forms[8],
but also made ART providers the subject of a regulator. There was no such regulator in either Queensland or New
South Wales and nor is there now.
By 2006, there was a patchwork of laws
covering surrogacy. The eight States and
Territories had eight different models, varying from the Northern
Territory, which surprisingly, had (and still has) no laws
regarding surrogacy whatsoever[9]
, to the Queensland
model, which criminalised everything.
The problem of the patchwork of laws was
highlighted in 2006 when Senator Stephen Conroy (now the Communications
Minister) and his wife Paula Benson travelled from Victoria
to New South Wales
to engage in an altruistic surrogacy. They
were not allowed to have a child in Victoria
because of the provisions of the Infertility
Treatment Act.[10]
In 2006, then Attorney-General Philip
Ruddock was instrumental in having the Standing Committee of Attorneys-General
(the unfortunate acronym of SCAG) consider surrogacy. Mr Ruddock was quite clear that there ought
to be one system throughout Australia[11].
Queensland
Pre 1 June 2010
There are 2 significant features:
(a) It was an offence for any form of
surrogacy in Queensland to be committed and
for anyone ordinarily resident in Queensland
to engage in surrogacy, wherever that might occur.[12]
(b) There was in effect an amnesty period for
altruistic surrogacy, so that on the commencement of the Surrogacy Act 2010 on 1 June 2010, intended parents could make
application to the Children’s Court for a parentage order. This window of opportunity ceases on 31 May,
2012[13].
From 1 June 2010
The Surrogacy
Act 2010 commenced on 1 June 2010 in all respects. It has three significant features:
1. It legalised altruistic surrogacy in Queensland, and set up a
system of regulation.
2. It continues the ban on commercial
surrogacy in Queensland and by those
ordinarily resident in Queensland engaging in
commercial surrogacy anywhere else, including overseas jurisdictions such as India, Thailand
and the United States.
3. It amended the Births, Deaths and Marriages Registration Act and the Status of Children Act so that lesbian
couples undertaking ART can both be recognised as “mother” and “parent” on the
child’s birth certificate. This change
is retrospective in the sense that if a child is born before 1 June 2010 both
women can be recognised on the birth certificate, provided that the father is
not named on the birth certificate.[14]
Lavarch
Inquiry
Former Attorney-General, Linda Lavarch,
headed up a Parliamentary inquiry. Its
terms of reference were to only deal with altruistic surrogacy. The committee was not charged with enquiring
as to the benefits or detriments of commercial surrogacy.
In its issues paper the committee noted:
“In
February 1983, the Queensland
Government appointed a “special committee” to enquire into laws relating to
artificial insemination; in vitro fertilisation (IVF); and other related
matters, including surrogacy. The
special committee, chaired by the Hon Justice Demack, reported in March
1984. It recommended that whilst
altruistic surrogacy contracts should be void or legally unenforceable,
entering into them should not be a criminal offence.”
However, the Queensland Parliament
legislated to prohibit all forms of surrogacy in 1988. It was argued that:
·
It
was dehumanising to use and pay another human being to reproduce;
·
Babies
must not be used as commodities; and
·
Queensland should seek to avoid the trauma and
legal battles associated with surrogacy in other jurisdictions.
The issue was again canvassed by a Task
Force on Women and the Criminal Code. In
its report, released in 2001, the task force noted the range of community views
on the matter. Although the task force
was divided on some issues, it took a consensus view that the Surrogate
Parenthood Act 1988 be amended to remove the sanction on altruistic
surrogacy as:
·
It
was generally felt inappropriate and unhelpful to involve the criminal justice
system in this intensely private matter between relatives and friends.
It also recognised that, if surrogacy
agreements were to be permitted in Queensland,
the extent to which they should be regulated would need to be addressed. The Government did not support the task force
recommendations regarding surrogacy at that time. A review of surrogacy laws is currently
occurring in a number of Australian jurisdictions.
On 14 February 2008, The Hon Anna Bligh
MP, Premier of Queensland, tabled a briefing paper outlining a case for reform
and stated that: “The Queensland Government believes the time has come to
decriminalise altruistic surrogacy”. The
Premier called for the establishment of this committee to further examine
whether altruistic surrogacy should be decriminalised and what regulation might
be desirable.”
The committee then went on to say in its
issues paper:
“There are a number of
factors influencing this renewed focus:
.
Very
few Australian born children are now available for adoption (only 14 locally
born children were adopted in Queensland
in 2006-07);
.
There
has been an increased use and social acceptance of infertility treatment or
assisted reproductive technology (ART) over the last decade; and
.
There
is greater social recognition of the diversity of family types raising
children, including extended, nuclear and blended families and families headed
by single parents and same-sex couples.
Some of the impetus for
reform also appears to have come from those concerned about a lack of legal
recognition of parents and children in surrogacy arrangements. It is suggested that this can lead to
practical difficulties, for example, in relation to passport applications,
medical treatment, eligibility for child support if commissioning parents
separate, eligibility for social security and taxation allowances and
inheritance.”
The Lavarch committee report[15]
stated in part:
“This
investigation into the decriminalisation regulation of altruistic surrogacy in Queensland has presented
each member of the committee with significant philosophical and moral
challenges. It has caused us to
collectively reflect on the role of government in people’s lives. It has reminded us all of our responsibility
as legislators in this State. The
committee has agreed that the Queensland
Government’s role should be to develop a legislative and regulatory framework
which balances the protection of vulnerable people from harm with the promotion
of liberty of consenting adults. The
committee acknowledges its deliberations and these important matters have been
noted by the advice received from a number of people with expertise in ethics
and philosophy.
The
committee is aware that not all Queenslanders may choose altruistic surrogacy
for themselves or approve of it for others.
However, for some people in Queensland
society, altruistic surrogacy provides the only realistic opportunity to create
a family. Over the last decade, on
average, only eighteen children born in Queensland
have been available annually for adoption.
As trends in adoption, deferred family formation and infertility appear
persistent, it seems sensible for the government to create an environment that
maximises the possibility for success in having families created through
altruistic surrogacy ….
The
committee’s focus on informed consent through the careful preparation of the
parties in the prevention of forced relinquishment aims to address identified
risks whilst respecting the liberty of freely consenting adults. In developing its proposed regulatory
approach, the committee has benefited from the work of previous inquiries in Victoria, South Australia,
Western Australia and Tasmania.
We have also learned much from the policy approach outlined in the Australian
Capital Territory (ACT) Parentage Act 2004 and the procedures developed by
the 2 fertility clinics, Canberra Fertility Centre and Sydney IVF, which have
pioneered IVF surrogacy over the last decade in Australia. The development of the committee’s regulatory
approach has also been enhanced by the information, advice and insights
provided by a range of medical specialists, infertility counsellors, legal
experts, researchers and policy officers in Queensland and interstate.
The
committee has concluded that whilst prohibition may have dissuaded some, it has
not prevented altruistic surrogacy occurring in Queensland … To promote the
best interests of the child, the committee wants to ensure that children born
of altruistic surrogacy are not stigmatised by the manner of the conception and
not disadvantaged by the lack of legal recognition of their intending parents,
for example, in terms of child support or inheritance. The committee’s proposal for a specific
mechanism to enable the transfer of legal parentage is an expression of this
principle.”[16]
The recommendations of the
committee included the following:
Recommendation 2: Significance
of language
The committee recommends
that the Queensland Government, when formulating legislation, guidelines and
policy, uses the terms:
.
“birth
mother” to describe the surrogate mother;
.
“intending
parents” rather than “commissioning parents” to avoid the use of perceived
dehumanised or commercialised language; and
.
“altruistic
surrogacy arrangement” rather than “agreement” to emphasise the altruistic
nature of the endeavour.
Recommendation 3:
Decriminalisation supportive of appropriate legislation and regulation
The committee recommends
that the Queensland Government decriminalises altruistic surrogacy supported
with an appropriate legislative and regulatory framework as described in later
recommendations.
Recommendation 5: Defining
altruistic surrogacy
The committee recommends
that the Queensland Government defines altruistic surrogacy in the Surrogate
Parenthood Act 1988 as: a clear arrangement, with a formal or informal,
agreed pre-conception between consenting adults for the birth mother to bear a
child for the intending parent/s and to permanently transfer the responsibility
for the child’s care and upbringing to the intended parent/s after the child’s
birth.
Recommendation 6: Further
examination of traditional Torres Strait
Islander “adoptions”
The committee recommends
that the Queensland Government considers options for the recognition of
traditional Torres Strait Islander “adoptions” [I note this was not taken up].
Recommendation 7:
Reasonable expenses
The committee recommends
that the Queensland Government ensures the appropriate legislation and/or
relevant regulation:
.
permits
reasonable expenses for altruistic surrogacy as long as there is no material
gain for the birth mother;
.
defines
categories of permitted expenses as follows: medical, legal, counselling, travel/accommodation,
child care and insurance costs and lost earnings which are directly
attributable to the altruistic surrogacy arrangement and not covered by
existing entitlements or benefits. Paid
maternity leave will be limited to a maximum of 2 months associated with the
birth and additional leave during pregnancy where medically indicated; and
.
clarifies
that payment of reasonable expenses is not enforceable as part of altruistic
surrogacy arrangements.
Recommendation 8:
Prohibition of advertising and brokerage
The committee recommends
that the Queensland Government prohibits advertising and brokerage for
altruistic surrogacy.
Recommendation 9:
Articulating policy principles
The committee recommends
that the Queensland Government articulates five key policy principles supported
by specific outcome statements in legislation to guide the regulation of
altruistic surrogacy in Queensland. The
best interests of the child are articulated under the committee’s first three
proposed principles. The five principles
are as follows:
.
every
child is nurtured, loved and supported;
.
every
child has access to his/her identity;
.
every
child enjoys the same status and legal protection irrespective of the
circumstance of his/her birth or the status of the parent;
.
the
long-term health and wellbeing of the parties to a surrogacy arrangement and
the families is promoted; and
.
the
autonomy of consenting adults in their private lives is respected.
Recommendation 10: Genetic
connection with intending parents and birth mother
The committee concludes
that it is desirable to pursue gestational surrogacy and it is desirable for at
least one intending parent to contribute their gamets where possible. However, given the difficulties of accounting
for people’s differing capacities and beliefs in relation to genetic connection,
the committee recommends that the Queensland Government:
.
avoids
a prescriptive approach on genetic connection; and
.
permits
the use of the birth mother’s egg, donor gamets and donated embryos on
accessing ART endorsed by the Surrogacy Review Panel on expert advice that:
(a) surrogacy is needed; and
(b) the parties are prepared for possible
risks.
Recommendation 11: Genetic
relationship and transfer of legal parentage
The committee recommends
that the Queensland Government maintains the status quo where the birth mother
is automatically recognised as the legal parent irrespective of her or the
intending parents’ genetic relationship with the child.
Recommendation 12:
Enhancing existing ART assessment and support processes
The committee recommends
to the Minister for Health that Queensland Health enhance existing standards
for assessment of support for altruistic surrogacy in ART services with
provision for:
.
psychosocial
assessment which is independent from psychosocial support;
.
further
specification of the content and amount of independent psychosocial assessment
counselling;
.
provision
of opportunities for counselling during pregnancy and after birth for the birth
mother, her partner and intending parents;
.
independent
medical assessments for the birth mother and intending parents to assess health
risks, need for surrogacy and any issues impacting on the capacity for
long-term care of the child;
.
specialist,
independent legal advice by a qualified lawyer provided separately for the
birth parents and intending parents;
.
a
legislatively based Surrogacy Review Panel appointed by Queensland Health
including members with relevant experience in medicine, family law, ethics,
psychosocial health and child development and a community representative to
approve all applications for altruistic surrogacy and to inform the development
of evaluation of ART standards in relation to altruistic surrogacy; and
.
a
three month cooling off period after approval by the Surrogacy Review Panel
before proceeding with treatment.
The committee also recommends
that the panel be sufficiently resourced to operate in a timely way and provide
easy access to applicants across Queensland.
Recommendation 13: Support
for the implementation of standards
The committee recommends
to the Minister for Health that Queensland Health support the implementation of
enhanced standards for altruistic surrogacy in the ART services by ensuring the
agency:
.
has
relevant policy research expertise in relation to altruistic surrogacy; and
.
supports
relevant training and professional development opportunities for infertility
counsellors, nurses and clinicians, members of the Surrogacy Review Panel and
family law specialists in consultation with the ANZICA, fertility clinics, the
Fertility Society of Australia and other experts.
Recommendation 16: Criteria
for intending parents and birth mothers
The committee recommends
to the Minister for Health that additional standards be developed under the Private Health Facilities Act 1999 to
include criteria for intending parents and birth mothers seeking assistance
from ART. The committee proposes:
.
the
intending parents and the birth mother and her partner have the capacity to
enter an arrangement;
.
have
participated in independent psychosocial and medical assessment;
.
have
obtained separate legal advice from a qualified lawyer;
.
intending
parents demonstrate a need for surrogacy (due to medical infertility or an
inability to carry a child or identified health risk);
.
at
least one intending parent is an Australian resident;
.
the
proposed pregnancy poses no significant health risk to the birth mother and she
has experienced a previous successful pregnancy.
Recommendation 17: Rights
of birth mothers to manage the pregnancy and birth
The committee recommends
that the Queensland Government confirms that birth mothers engaged in
altruistic surrogacy arrangement have the same rights to manage their pregnancy
and birth as other pregnant women.
Recommendation 18:
Unenforceability of surrogacy arrangements
The committee recommends
that the Queensland Government ensures altruistic surrogacy arrangements remain
unenforceable under State law.
Recommendation 19:
Mechanism for transfer of legal parentage specific to altruistic surrogacy
The committee recommends
to the Queensland Government that it:
.
provides
for the transfer of legal parentage for altruistic surrogacy under the Surrogate
Parenthood Act 1988, the Status of Children Act 1978 or other
suitable Act with the following conditions:
-
the
arrangement falls within the proposed legislative definition of acceptable
altruistic surrogacy arrangements (ie it is non-commercial, made pre-conception
and parties have reached legal adulthood);
-
intending
parents demonstrate a need for surrogacy based on advice from the Surrogacy
Review Panel or a medical specialist or, in the case of traditional Torres
Strait Islander “adoptions”, customary practices verified using a similar
process to that used in the Family Law Court;
-
the
parties meet informed consent requirements including:
.
the
birth parent/s consent to the transfer of legal parentage;
.
the
child is resident with the intending parent/s;
.
birth
parents and the intending parents have received separate legal advice from a
qualified lawyer; and
.
all
parties have undertaken post-birth counselling as evidenced by a report from an
ANZICA counsellor or a suitably qualified psychologist, social worker or
psychiatrist focusing on quality of informed consent, child’s right to
information and ongoing communication between the parties;
-
at
least one of the intending parents is in an Australian resident;
-
the
approval of transfer is made no sooner than four weeks after birth and an
application for transfer is made no later than six months after birth; and
-
the
transfer is considered in the best interests of the child;
.
provides
for the transfer of legal parentage for any existing altruistic surrogacy cases
which fall outside the six month criteria for a two year period following the
decriminalisation of altruistic surrogacy provided they meet all the other
conditions detailed above; and
.
ensure
that applications for the transfer of legal parentage come under the
jurisdiction of the Supreme Court.
Recommendation 22: Register
of genetic information
The committee recommends
that the Queensland Government:
.
develops
a central register to protect information of the child’s genetic parents and
circumstances of birth in relation to altruistic surrogacy, having regard for
the possible benefits of such a service for other children born of donor
gamets;
.
considers
the relative merits of the placement of the register, having regard to possible
synergies with ART regulation, within Queensland Health or with birth
registration within the Register of Births, Deaths and Marriages; and
.
supports
the development of a national best practice approach to the operation of registers
and birth certificates.
Recommendation 23: Ongoing
support to health for intending parents
The committee recommends that the
Queensland Government develops a strategy to:
.
support
parents of children born of altruistic surrogacy or gamet donation of all ages
to “tell” them about their genetic parentage and circumstances of birth;
.
promote
the role of the register as proposed in Recommendation 22 and provide easy
access to a child’s information; and
.
facilitate
the exchange of information between parties.
Recommendation 24:
Advocating for Medicare funding
The committee recommends that the
Queensland Government advocates the Australian Government to provide Medicare
funding for altruistic surrogacy.
The Bills
Subsequently there were 2 Bills before
State Parliament. The government and
opposition bills were identical, save that the government bill included as
intended parents same-sex couples and single people, and allowed for the
registration of lesbian co-mothers on birth certificates (which was identified
as an issue by the committee), but the opposition bill did not.
The government bill was passed. A conscience vote was allowed. The opposition, all the independents and two
ALP members voted for the opposition bill.
All other government members voted for the government bill.[17]
Surrogacy
practice under the Surrogacy Act 2010
Section 6 of the Act states that there
are guiding principles:
“(1) This Act is to be administered according
to the principle that the wellbeing and best interests of a child born as a
result of a surrogacy arrangement, both through childhood and for the rest of
his or her life, are paramount.
(2) Subject to subsection
(1), this Act is to be administered according to the following principles--
(a) a child born as a
result of a surrogacy arrangement should be cared for in a way that--
(i) ensures a safe, stable
and nurturing family and home life; and
(ii) promotes openness and
honesty about the child's birth parentage; and
(iii) promotes the
development of the child's emotional, mental, physical and social wellbeing;
(b) the same status,
protection and support should be available to a child born as a result of a
surrogacy arrangement regardless of--
(i) how the child was
conceived under the arrangement; or
(ii) whether there is a
genetic relationship between the child and any of the parties to the
arrangement; or
(iii) the relationship
status of the persons who become the child's parents as a result of a transfer
of parentage;
(c) the long-term health and wellbeing of parties
to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of
consenting adults in their private lives should be respected.”
The government did not accept the
committee’s recommendation that there be a surrogacy review panel of similar
nature to VARTA or the Western Australian regulator.
Like weight loss advertisements, the
scheme under the Surrogacy Act has
before and after elements from a legal perspective. I will deal below with
surrogacy arrangements entered into on or after 1 June, 2010.
There are two key legal steps under the Surrogacy
Act:
1.
Before: Entry into the surrogacy
arrangement.
2.
After: Making of the parentage order.
Treatment can only commence once the
surrogacy arrangement has been signed by all parties. The requirements of a parentage order
application are not mandatory for treatment.
Requirements of an altruistic surrogacy
arrangement
1.
Not commercial surrogacy
Commercial surrogacy arrangements are
prohibited.[18]
It is an offence to provide technical,
professional or medical services for a commercial surrogacy arrangement to an
intended surrogate before she has
become pregnant. Section 58 provides:
“1. A
person must not intentionally provide a technical, professional or medical
service to another person if –
(a)
the person knows the other person is, or
intends to be, party to a commercial surrogacy arrangement; and
(b)
the person provides the service with the
intention of assisting the other person to become pregnant for the purposes of
the arrangement. Maximum penalty – 100
penalty units or 3 years imprisonment.
2. A person does not commit an offence under
ss.(1) if the person provides a technical, professional or medical service to a
woman after she has become pregnant.”
I have had reports from clients of
doctors advising intending parents to try their hand at commercial surrogacy
clinics overseas. This behaviour, if
true, would constitute an offence. The
Criminal Code[19]
makes plain that every person who enables or aids another person to commit an
offence, or counsels or procures any other person to commit the offence also
commits that offence.
It is also an offence for anyone to
publish an advertisement, statement, notice or other material that they are
agreeing to act as a birth mother or seeking a birth mother or willing to enter
into a surrogacy arrangement.[20]
Although one would think that section 55 is
intended to prevent advertisements, its reach is much wider. The section provides in ss.2:
“Publish
means publish to the public by
television, radio, the internet, newspaper, periodical, notice, circular or
other form of communication.” (emphasis
added)
A surrogacy arrangement is a commercial
arrangement if a person receives a payment, reward or other material benefit or
advantage (other than the reimbursement of the birth mother’s surrogacy costs)
for the person or another person –
(a) agreeing to enter into or entering into
the surrogacy arrangement; or
(b) permanent relinquishing to 1 or more
intended parents the custody and guardianship of a child born as a result of
the surrogacy arrangement; or
(c) consenting to the making of a parentage
order for a child born as a result of the surrogacy arrangement.[21]
Section 11 sets out the meaning of the
birth mother’s surrogacy costs. As
clearly set out in section 10, this is the key difference between whether a
surrogacy arrangement is commercial or altruistic. Section 11 provides:
“(1) A birth
mother's surrogacy costs are the birth mother's reasonable costs associated
with any of the following matters--
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother's spouse (if any) being a
party to a surrogacy arrangement or proceedings in relation to a parentage
order.
(2) Without
limiting subsection (1), the following amounts are a birth mother's surrogacy
costs--
(a) a reasonable medical cost for the birth mother associated with any
of the matters mentioned in subsection (1);
Example
of a reasonable medical cost for paragraph (a)--
a
cost incurred before conception if the birth mother consults a medical
practitioner to find out if she is capable of carrying a pregnancy before
undergoing a fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost, for a child
born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that
would not have been obtained by the birth mother if the surrogacy arrangement
had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters
mentioned in subsection (1), including--
(i) the cost of counselling obtained by the birth mother or the birth
mother's spouse (if any) before or after entering into the surrogacy
arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance
report under section 32;
(e) a reasonable legal cost for the birth mother and the birth mother's
spouse (if any) relating to the surrogacy arrangement and the transfer of
parentage;
(f) the value of the birth mother's actual lost earnings because of leave
taken--
(i) for a period of not more than 2 months during which a birth
happened or was expected to happen; or
(ii) for any other period during the pregnancy when the birth mother
was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement
or the making of the order transferring parentage.
Examples
of other reasonable costs for paragraph (g)--
travel
and accommodation costs for a birth mother who lives interstate and travels to
Queensland to undertake a fertility treatment, to consult with an obstetrician
or to give birth
travel
and accommodation costs associated with a birth mother's attendance at a court
hearing about an application for a parentage order if the birth mother does not
live near the court
(3) In this
section--
legal cost
includes fees for obtaining legal advice and legal representation, court fees,
and registry fees associated with registration of a birth and transfer of
parentage.
medical cost means
a medical cost to the extent that it is not recoverable under Medicare or any
health insurance or other scheme.”
Nature of the
arrangement
What is entered into concerns
surrogacy. There is no distinction in
the legislation preferring gestational surrogacy over traditional
surrogacy. There is nothing within the Surrogacy
Act that prohibits parties from entering into traditional surrogacy. I have clients who are proceeding with a
traditional surrogacy. Doctors will not
be engaged in that case until after the surrogate is pregnant.
Independent legal advice
The surrogate, referred to in the Act as
the birth mother, and her spouse (if any) must before they sign the surrogacy
arrangement have had independent legal advice.[22]
The intended parent/s also need to have
independent legal advice before the surrogacy arrangement is signed.[23]
Counselling or pre-signing
counselling
The birth mother and her spouse (if any)
and the intended parent/s must before they sign the surrogacy arrangement have
had counselling from an ANZICA member, a member of the RANZ College of
Psychiatrists, a member of the AASW or a member of the Australian Psychological
Society.[24]
Typically, the counsellor will be both an
ANZICA member who is also a member of the Australian Psychological Society. In
one of my recent cases, one of my clients was a psychologist who objected to
attending another psychologist for counselling. I arranged for the parties,
instead, to attend upon a social worker who is a member of the AASW for their
counselling.
Counselling is not required for any donor,
according to the Act. However, that counselling will be required in any
gestational surrogacy, due to the requirements of the NHMRC Ethical Guidelines[25]. There is no difficulty with the same
counsellor seeing all parties. There is
no difficulty with the counsellor being associated with the clinic.
Before conception
The surrogacy arrangement must be made
before the child was conceived. This
provision is problematic when parties have frozen embryos that were obtained
years ago and are now seeking to use them for the surrogacy.[26] There is no definition of conception. The Lavarch Committee considered that the
arrangement should be signed before the surrogate is pregnant, but did not
otherwise specify when conception occurred.
Unfortunately there is no case law yet about conception and it is
possible that a Children’s Court judge might find that conception occurred at
the time of the fertilisation of the embryo.
The then Attorney-General, Cameron Dick, who was responsible for moving
this Bill through Parliament was of the view that “conception” was at the time
of implantation.[27] This view is not binding in any sense upon a
court.
Surrogacy arrangement needs
to be written
The surrogacy arrangement needs to be
signed by the birth mother, her spouse and the intended parent/s.[28] It does not need to be signed by any donor.
Generally not legally
binding
Generally an altruistic surrogacy
arrangement is not legally binding, except as regards the birth mother’s costs.[29]
Despite not being legally binding, the
surrogacy arrangement ought to clearly set out:
(a) what the expectations of each of the
parties are;
(b) why they are entering into the surrogacy
arrangement. This point may be
especially helpful in the parentage order application;
(c) all parties were at least 25 years old
when the surrogacy arrangement was made.
There is no requirement for parties to
sign a surrogacy arrangement. The surrogacy arrangement is only required if the
parties intend to seek a parentage order.[30]
Let the treatment begin
Once there is a surrogacy arrangement
signed by all parties, then treatment can commence. It is not an offence to provide treatment
before the surrogacy arrangement is signed, however the real risk is that the
parties will not be able to obtain a parentage order and will blame the doctor
and clinic for that (with professional indemnity issues) but worse, it may be
that the arrangement was a commercial surrogacy arrangement which means the
clinic, doctor and other staff may have committed a criminal offence. It is
imperative that the clinic have a copy of the signed surrogacy arrangement
before performing any treatment.
Step 2: Obtaining the parentage order[31]
There are a number of key steps that need
to be taken to obtain the parentage order.
1.
The
child is born and handed over to the intended parent/s.[32]
2.
Post
1 June 2010 surrogacy arrangements: application must be made within 28 days to
6 months of the child being handed into the possession of the intended
parent/s. There is the ability to extend
the time, with leave of the court, but this ought to be avoided.[33]
3.
The
order is for the wellbeing and the best interests of the child[34],
this being the paramount consideration[35].
4.
The
intended parent/s make the application together.[36]
5.
The
birth mother and her spouse and any other birth parent all consent to the
making of the parentage order.[37]
The birth mother, until the time the order is made, remains the mother of the
child, and therefore able to decide about the pregnancy, and whether or not she
relinquishes the child.[38]
6.
The
birth mother and her spouse were at least 25 years when the surrogacy
arrangement was made.
7.
The
intended parent/s were at least 25 years when the surrogacy arrangement was
made and at the time of the application a resident in Queensland.[39] What is significant about this clause is that
there is no requirement for the birth mother or her spouse to be resident in
Queensland. Nor is there a requirement
at the time of entering into the surrogacy arrangement that the intended
parent/s reside in Queensland. They only
have to reside in Queensland at the time of the hearing of the parentage order
application.
8.
A
surrogacy guidance report has been obtained.[40] This report needs to be obtained from an
independent counsellor, ie someone not associated with the clinic and who did
not provide any counselling before the surrogacy arrangement was signed.[41]
Typically, it will be organised by the solicitor for the intended parents.
Because of the need for independence, it is not organised by the clinic.
9.
There
must be evidence of a medical or social need for the surrogacy arrangement.[42] In essence, whilst there might be evidence of
medical need for any male intended parent (including any gay couples) social
need is sufficient.
10.
However,
if a woman is an intended parent then there must be a medical need demonstrated
for that woman. If the intended parents
are a lesbian couple, then it needs to be shown for both.[43] This will be shown to the court by a report
from the treating doctor of the intended parent/s. Evidently, treatment of the birth mother
should not commence unless, in respect of any intended parent who is a woman,
that there is a clear medical need. If
there is also a social need in respect of that woman, that is a bonus, but the
requirement is for a medical need.[44]
Section 14(2) provides:
“(2) An
eligible woman is a woman who--
(a) is unable to conceive; or
(b) if able to conceive--
(i) is likely to be unable, on medical grounds, either to carry a
pregnancy or to give birth; or
(ii) either--
(A) is unlikely to survive a pregnancy or birth; or
(B) is likely to have her health significantly affected by a pregnancy
or birth; or
(iii) is likely to conceive--
(A) a child affected by a genetic condition or disorder, the cause of
which is attributable to the woman; or
(B) a child who is unlikely to survive a pregnancy or birth; or
(C) a child whose health is likely to be significantly affected by a
pregnancy or birth.”
Treating doctors need to satisfy
themselves that all women who are
intended parents are eligible.
Documents required
The documents required to enable the
parentage order application to be successful are:
·
copy
of the child’s birth certificate;
·
copy
of the surrogacy arrangement;
·
supporting
affidavits by the intended parents, birth mother, her spouse and any other
birth parent;
·
affidavits
of each of the lawyers who gave advice before the surrogacy arrangement was
signed;
·
affidavit
of the pre-signing counsellor;
·
the
surrogacy guidance report supported by an affidavit;
·
an
affidavit from an appropriately qualified medical practitioner verifying a
report prepared by the medical practitioner as to why the applicant is an
eligible woman.
Parentage order
A parentage order is made by the
Children’s Court.[45]
Dispensation
There are some requirements that can be
dispensed with by the court if there are exceptional circumstances and that the
dispensation “will be for the wellbeing,
and in the best interests of the child”.[46] There is also a dispensation if the birth
mother or a spouse has died, loses capacity or cannot be located.[47]
Categories that can be dispensed with
.
Requirement
of the baby living with the intended parents for at least 28 consecutive days
before the application was made and was living with them when the application
was made and with them at the time of the hearing.
Example: the baby may be in hospital, but
in the care of the intended parents.
.
The
intended parents have split up or one of them has died.[48] There is a lack of clarity in the drafting of
that particular provision concerning when married couples are no longer a
couple, which is unhelpful. There is a reference to “spouse” and also to
“couple”. With de facto spouses, separation is the event marking their end as a
couple. Separation is ordinarily seen when a married couple are no longer a
couple, but it is the divorce when they are no longer legally spouses, and
therefore a couple.
.
There
is not evidence of medical or social need for the surrogacy arrangement.
.
One
or other of the parties had not obtained independent legal advice before
signing the surrogacy arrangement.
.
One
or all of the parties had not obtained pre-signing counselling.
.
The
surrogacy arrangement is not in writing, or was not signed by all parties.
.
The
birth mother and her spouse were under 25 when the surrogacy arrangement was
made.
.
The
intended parents were under 25 when the surrogacy arrangement was made.
.
The
intended parents at the time of the hearing of the parentage order application
are not resident in Queensland.
The Act sets out an example:
“Example
of exceptional circumstances for dispensing with the requirement under section
22(2)(g)(ii) – one of the joint applicants is temporarily residing outside
Queensland because of work commitments but is still in a spousal relationship
with the other joint applicant who is resident in Queensland.”
.
One
of the parties cannot consent to the parentage order application because they
have died or cannot be located.
Case example
There has only been one reported case in
Queensland: BLH & HN v SJW & MW[ 2010] QDC 439[49].
This was a surrogacy arrangement that was
entered into between the parties when it was illegal, a child having been born
on 11 May 2010, before the commencement of the Queensland Act. The intended parents were a gay couple. Judge Irwin made the parentage order. He was satisfied that the proposed order was
for the wellbeing and in the best interests of the child. He gave as an example the child’s rights
under succession law and in relation to financial support. He noted that the surrogate believed that the
child would suffer social disadvantage if his birth certificate did not record
the intended parents 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.
As to medical or social need, his Honour
stated:
“It
is a purely altruistic arrangement designed to allow the applicants the
opportunity to have a family. There is a
medical or social need for the surrogacy arrangement as a result of the two
intended parents being men.”
Interstate clients, but
Queensland doctors
Infertility doctors on the Gold Coast are
licensed in Queensland. There is nothing
to prevent them from assisting intended parents who live interstate, for
example in the Tweed. A surrogate could
be an overseas citizen. The surrogacy
arrangement must, because doctors are providing treatment in Queensland, in my
view as closely as possible comply with the provisions of the Surrogacy Act
2010 (Qld). The scheme of the Act
provides that intended parents must reside in Queensland. If the intended parents reside in the Tweed,
for example, they cannot apply for a parentage order in Queensland, but may be
able to apply in their home State.
Example
Barney and Betty live in Tweed Heads.
Betty is a patient of Life Fertility. Betty is unable to carry a pregnancy to
term. Fred and Wilma, Barney and Betty’s friends across the road in Coolangatta
offer to help Barney and Betty achieve their aim of parenthood by Wilma being a
gestational surrogate. There would be no impediment to Life Fertility providing
surrogacy services to Wilma. Barney and Betty however could not obtain a
parentage order in Queensland, but would need to obtain one from the Supreme
Court of NSW in Sydney. The form of the surrogacy arrangement would need to
comply with the Surrogacy Act 2010 NSW, and also have to comply with the
Surrogacy Act 2010 Qld. It would need to comply with the NSW Act so that a
parentage order could be made in NSW. It would need to comply with the
Queensland Act so that there was no issue that anyone in Queensland was engaged
in offences relating to commercial surrogacy.
If the child, Bam Bam, were born in
Queensland, then an order would be made in the Supreme Court of NSW,
transmitted to the Queensland Registrar of Births, Deaths and Marriages. The
birth certificate would then be altered to show the parents of Bam Bam as
Barney and Betty.
Any surrogacy arrangement should comply
with Queensland legislation and, so far as is possible, the interstate
legislation. If the intended parents are
from outside Queensland or New South Wales, then the clinic should consider
obtaining advice first before proceeding with treatment.
Example
Bill and Ben are a gay couple in Western
Australia. Their good friend, Little Weed, who lives in Brisbane, offers to be
their gestational surrogate. Bill and Ben, being a gay couple in Western
Australia, do not have an entitlement under the Surrogacy Act 2008 WA to
obtain a parentage order.[50]
It is not an offence for them to enter into surrogacy arrangements outside
Western Australia. Little Weed would be
eligible to obtain surrogacy treatment in Queensland. The surrogacy
arrangement would need to comply with the Surrogacy
Act 2010 Qld, primarily to show
that the surrogacy is altruistic, not commercial. As Bill and Ben reside in Western Australia, they
cannot obtain a parentage order in Queensland. Because they are not eligible to
obtain a parentage order in Western Australia, they cannot obtain one there
either. Bill and Ben cannot adopt in Queensland. They may be able to adopt in
Western Australia. If for some reason they cannot adopt in Western Australia,
they may have to apply to the Family Court of Australia in Brisbane, or the
Family Court of Western Australia in Perth for parenting orders. If they do so,
there may be complications. Even if they were to obtain a parenting order from
the Family Court, Little Weed would be shown as the mother of the child, and
would be potentially liable to pay child support.
Practical issues
I just wanted
to set out some practical issues that have arisen since the enactment of the
Surrogacy Act 2010:
1. There may be no conception.
Intended
parents who have been trying for many years to fall pregnant, get excited when,
through the possibility of surrogacy, they might be able to fulfil their age
old dream of having children. Their excitement levels increase through the
chicanes of legal advice, attending the clinic, discussions with the surrogate
and her partner, and attending counselling. Suddenly it all has a certain inevitability
about it. Because all of these steps have happened, no longer is having a child
a mere chimera, but is real. These couples need to be alerted to the
possibility that things might go wrong (they have figured most of these out
before coming in to see me), and especially that the surrogate might not fall
pregnant- something that they had not even contemplated.
2. Counselling and more counselling.
Although the
Surrogacy Act 2010 only requires counselling before signing up, and a report
after the child is born, in my view much more counselling should take place. I
would endorse the approach taken by the Canberra Fertility Clinic, and in turn
endorsed by Michael Condon of Queensland Fertility Group of counselling at 12,
28, 35 weeks of pregnancy, and 6-8 weeks post-partum, and 3, 6, 12 months after
delivery and that “that the patient or surrogate is able to contact the clinic
nurse or counsellor at any time if concerned.”[51]
3. Share and share alike.
It is important
that the parties to the surrogacy arrangement build up trust and confidence
between them. This includes basics such as knowing their respective relevant
medical histories. Without such basic information, trust cannot be built.
Without trust, the arrangement is likely to lead to a disaster.
4. It's easier to catch flies with honey than with
vinegar.
Lawyers dealing
with surrogacy arrangements need to take a different approach to that
traditionally taken by family lawyers.
In essence lawyers need to take a collaborative approach. I do not mean through the strictures of a
collaborative law agreement. What I mean
is that the process of obtaining a child through surrogacy is ultimately a
cooperative one, built on layers of trust that will hopefully last the lifetime
of each of the players. It is very easy
for a lawyer, in the zealous protection of that lawyer’s clients, to sow
distrust, which ultimately may well be severely to the detriment of any child
and of the other players.
The role of a
lawyer is in my opinion to balance not only the protection of the client’s
interests (which of course is a lawyer’s duty and primary focus), but also act
in a spirit of trust, cooperation and collaboration.
Surrogacy is a
process of love in which a baby is hopefully conceived and born. It is easy for lawyers to destroy that love.
The process of
altruistic surrogacy is an uneasy mixture of the practice of law, IVF
technology, counselling, human emotions and the natural process of pregnancy
and childbirth. Mixed into this brew, is
often the pent up desire of many years of frustration and cost on the part of
the intended parents, together with the desire of friends or family to provide
them with the joy of a child.
Some intended
parents have tried for many, many years to conceive a child. Following
unsuccessful attempts au naturel, they may have tried IVF for 15 years. To put
that into perspective, they might have tried to conceive a child from the ages
of 22 to 38, before trying surrogacy. The attempts to conceive a child, with
its rollercoaster of hardship, has in many ways dominated their relationship.
The process in which these clients have been through can be a soul destroying
one. Lawyers need to be aware of the potential harmful impact of their views
and actions in dealing with such sensitive matters.
5. Don’t forget
the cycle
One of the
curious features about surrogacy is that the timetable of the parties is often
predicated on the surrogate’s cycle, so as to maximise the chances of
pregnancy. Lawyers should expect to turn around work quickly.
6. Clients talk
Family lawyers
have all had cases where two warring family law clients talk to each other,
sometimes comparing the advice of each of their lawyers, and at other times
comparing the bills. With surrogacy, the intended parents talk to each other
about the process. It is not unusual for all of the parties to attend each
lawyer, at least initially. What is necessary about this process is to be
absolutely clear about who is and who is not the client, and about the
potential waiver of privilege.
It is not
uncommon that there might be a difference of opinion between lawyers about
legal issues. Surrogacy is a new area of the law, and with any new area of the
law, grey areas of uncertainty abound. I normally become aware of the different
views of the other lawyer when my clients tell me what the other lawyer has
advised the other parties. I adopt a practice of trying to resolve the
difference with the other lawyer, not inflame it.
7. Medical appointments
In my view, the
intended parents should, as far as is possible, attend the medical appointments
of the surrogate, and should be at the birth.
8. There are hospitals, and hospitals.
Just as I had
not expected to be thinking about when life begins when I entered legal
practice, nor had I expected to be discussing choices of hospitals. Hospitals
are still getting their heads around whether or not they will facilitate
surrogacy births. Issues for me are: whether or not the intended parents can
attend the birth, whether the intended parents can stay alongside the baby, whether
the hospital will recognise the role of the intended parents when providing
care to the baby at hospital, such as holding and bathing the baby, and whether
the baby can leave the hospital before the surrogate is able to.
9. To feed, or not to feed.
It is important
that the issue of breastfeeding is discussed. Is the child to be breastfed, or
bottle fed? Is the intending mother to take medicine to enable her to breast
feed? Is there an issue with enabling a bond to develop between the surrogate
and the child by allowing breast feeding?
10. Working together in harmony
Because the
process of surrogacy is a process driven by love, it is important in my view
that the various professionals working during that process: doctors, nurses,
clinical staff, lawyers and counsellors, do so- subject to their own professional duties- in as harmonious manner
as possible. It is one thing for anxious clients to unwittingly create
dissension, it is another for us to heap that unnecessarily upon them. I
sometimes call this the doctor/lawyer twostep: each of us is engaged in a part
of the dance for the same clients.
11. It may not be happily ever after.
I have at times
been chided by clients for giving them the bad news of what can go wrong with a
surrogacy arrangement: medical possibilities, relationship issues and legal
issues. They wanted me to tell them only the good news. Of course, as I
explained, my obligation is to set out not only the good news, but what can go
wrong. It is my duty to do so. If I breach that duty, as I explained to them,
then they could sue me. I said that all I wanted was for my clients (whether
intended parents or the surrogate and her partner) to consider carefully as to
whether it is a good idea for them to enter into the surrogacy arrangement, with
all that flows from that, and if they do decide to do so, that they do so with
their eyes wide open.
Summary
Surrogacy practice is a new area of
medical and legal practice. It remains an uncertain area of the law, in which the
ship of good intentions may founder on the rocks of uncertainty. Doctors and
lawyers should work as closely as they can, subject to their differing
professional duties and obligations, to assist their mutual clients achieve the
aim of parenthood.
Stephen Page
Harrington
Family Lawyers
Phone:
61 7 3221 9544
Fax:
61 7 3221 9969
Stephen was
admitted as a solicitor in 1987. He has
practised wholly or predominantly in family law since then. He has been an accredited family law
specialist since 1996 and is a partner of Harrington Family Lawyers, a boutique
family law firm in Brisbane.
Stephen is a member of various professional bodies, including the Fertility
Society of Australia. Stephen has assisted clients from throughout Australia and
overseas about surrogacy.
[1]
Stephen Page is an
accredited family law specialist.
Admitted in 1987, is author amongst others of the Australian Gay &
Lesbian Law Blog http://lgbtlawblog.blogspot.com and
the Surrogacy & Adoption Blog http://surrogacyandadoption.blogspot.com
.
[2]
Genesis 16: story of Sarah and Abraham, Hagar being the surrogate
[3]
S.3.
[4]
S.7
[5]
S.7
[6]
S.7
[7]
S.43
[8] Territorians,
however, have relied upon their ART services being provided by South Australian
licensed doctors.
[10]
SMH 8/11/06
[11]
SMH 8/11/06, Sunday interview with Laurie Oakes 1/4/07, The Australian 13/4/07
[12]
S.3 Surrogate Parenthood
[13]
S.63
[14]
Births, Deaths and Marriages Registration Act 2003 Qld, s.10A
[16]
Introduction
[17]
Hansard 11/2/10, I was also present and witnessed the vote.
[18]
Section 56. This applies both in
Queensland and to those ordinarily resident in Queensland engaging in
commercial surrogacy arrangements overseas: s. 54. See also: s. 22(2)(e)(vi).
[19]
Section 7.
[20]
Section 55.
[21]
Section 10.
[22] Section
22(2)(e)(i)(A).
[23]
Section 22(2)(e)(i)(B).
[24]
S.19, and Section 22(2)(e)(ii) Section 22(2)(e)(vi)??..
[25]
National Health and Medical Research Council, Ethical Guidelines on the use of Assisted Reproductive Technology in
Clinical Practice and Research, 2007, guideline 9.3. See also chapters 6
and 7.
[26]
Section 22(2)(e)(iv).
[27]
Letter to the writer 16/11/10.
[28]
Section 22(2)(e)(v).
[29]
S.15.
[30]
Cf see note to s.7.
[31]
S. 22(2).
[32]
S. 22(2)(b).
[33]
S.22(2)(b).
[34]
S. 22(2)(a).
[35]
S.6.
[36]
S. 22(2)(c).
[37]
S. 22(2)(h).
[38] Ss.
16, 17; Status of Children Act 1978 Qld
[39]
S. 22(2)(g).
[40]
S. 22(2)(i) section 32.
[41]
S. 32, 19.
[42]
Section 22(2)(d).
[43]
S.. 14(1)(b)(iii), 14(2).
[44]
S. 14.
[45]
Section 13. It provides for the transfer of custody and guardianship from the
birth mother (and her spouse if any) to the intending parent/s and alters the
details on the birth registry so that the intending parents will be shown as
the parents of the child.
[46]
Section 23(2).
[47]
Section 23(3).
[48]
Section 21(5).
[50]
S.19
[51]
Condon, M, Surrogacy Counselling,
presentation to Fertility Nurses Australasia, May, 2011.
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