Australian Gay and Lesbian Law Blog: September 2011

On Saturday I spoke at the 26th Annual Calabro SV Consulting Queensland Law Society/Family Law Practitioners Association Family Law Residential- about surtogacy.

Here is the paper:

26^th Annual Calabro SV Consulting

Family Law Residential

10 September, 2011

Coping with Love, not Hate

by Stephen Page
Partner, Harrington Family Lawyers[1]

Introduction: Welcome to the Minefield

Queensland, like most 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 the background to the enactment of the Surrogacy Act 2010 , a guide to some key provisions of that Act, and a discussion of the impact of some recent decisions of the Family Court.

It is fair to say that advising clients about surrogacy matters is like guiding them through the minefield. This is illustrated by the statement of Watts J in Dudley and Chedi[2]

“In very recent times Australia has been moving towards a uniform position in relation to the legality of surrogacy arrangements and all places in Australia, except Tasmania and the Northern Territory, now have laws about surrogacy arrangements.

State laws have aimed to protect women and children from what the legislature has seen as abusive practices which potentially surround the commercialisation of surrogacy. At this date, all State laws that have been enacted authorise altruistic surrogacy and make illegal commercial surrogacy.”

Actually, this quote indicates the difficulty in getting to grips with Australia’s surrogacy laws. With respect, his Honour is incorrect in saying that Tasmania does not have laws concerning surrogacy. It does: the Surrogacy Contracts Act 1993, a holdover from the previous approach in which the States were to outlaw surrogacy. Tasmania currently has two Bills before its Parliament[3] seeking to regulate altruistic surrogacy in a similar manner to the other States.

It is also incorrect to say that the States have come up with a uniform position in relation to the legality of surrogacy arrangements. His Honour is absolutely correct in saying that the States have aimed to legalise and regularise altruistic surrogacy and to criminalise commercial surrogacy. However as I will illustrate in this paper the States have taken markedly different positions on a number of points, and it is hard to say that their position is “uniform”.

As to Watt J’s second paragraph, it is unknown exactly why legislatures have outlawed commercial surrogacy. As Professor Jenni Millbank has stated, although there have been several state enquiries into surrogacy arrangements, these enquiries were quickly put together and were limited to considering altruistic surrogacy[4]. State MP’s have merely told me[5] that they are opposed to commercial surrogacy, and that they are opposed to overseas commercial surrogacy because the latter causes the commodification of third world women. It will be recalled that in Queensland at least, there was remarkably little if any debate about the issue of commercial surrogacy. There is no reference to the clauses in the Attorney’s second reading speech. The parliamentary debate primarily concerned whether single people and gay and lesbian couples should be included (the Government’s position) or excluded (the LNP’s position) as eligible to access altruistic surrogacy.

Key Concepts

Surrogacy. Citing Wikipedia, Benjamin J recently said in Lowe and Barry [6]:

“In the community understanding, surrogacy is said by Wikipedia to be:

“ ‘… an arrangement in which a woman carries and delivers a child for another couple or person. This woman may be the child’s genetic mother (called traditional surrogacy), or she may carry the pregnancy to delivery after having an embryo, to which she has no genetic relationship, transferred to her uterus (called gestational surrogacy). If the pregnant woman received compensation for carrying and delivering the child (besides medical and other reasonable expenses) the arrangement is called a commercial surrogacy, otherwise the arrangement is sometimes referred to as an altruistic surrogacy.’

Surrogate parenting arrangements vary from the understandable aspirations of families (whether single parent, heterosexual or same sex relationships) to more sinister aspects including use of children for body parts or of children for exploitation. There are aspects of surrogacy (in the broader context of the use of that term) which reflect the cultural practices of some particular communities, such as Kupai Omasker within the Torres Strait Islander groups and similar practice in other Melanesian cultures within the South Pacific basin.”

Traditional surrogacy. This is where the surrogate’s egg is used. The surrogate is fertilised with sperm from the sperm donor. This type of surrogacy will happen at home, and not through a clinic.
Gestational surrogacy. The surrogate’s egg is not used. The child is gestated by the surrogate, but she has no genetic link with the child. The egg will either be that of the intended mother or from a donor. The sperm will be that of the intended father or from a donor. Gestational surrogacy necessarily involves IVF. There may be no genetic relationship between the intended parents and the child.
Commercial surrogacy. This is a surrogacy in which the surrogate is paid for her services. It is an offence to engage in commercial surrogacy everywhere in Australia, except in the Northern Territory. For practical purposes, commercial surrogacy, except traditional surrogacy, is not available in the Northern Territory. It is an offence for those ordinarily resident in Queensland to engage in commercial surrogacy anywhere in the world.
Intended parents. Fairly obviously, those who intend to be the parents once the surrogacy proceeds. In Queensland, a single person can be an intended parent. A married couple or a de facto couple (including a same sex couple) can be intended parents.
Birth mother. The surrogate. Until a parentage order is made, the surrogate is the mother at law, and if she has a partner, then her partner is the other birth parent. However, if the surrogate remains married, but is also in a de facto relationship, for example because she was separated but has not divorced, then a conflict may arise between the presumption that her husband is the other birth parent, and the presumption that her partner is the other birth parent[7]. Her husband may be the other birth parent, but her partner may or may not be the other birth parent.

Some history

Surrogacy, at least in its traditional sense, has existed at least since the time of the Old Testament.[8] 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.[9]

By virtue of the provisions of the Criminal Code it also meant that if anyone aided and abetted[10], counselled[11] or procured[12] 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[13], 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[14], 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, 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.[15]

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[16].

Pre 1 June 2010

There are two 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.[17]

(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[18].

There was then convened an all party Parliamentary inquiry chaired by former family lawyer and Attorney-General Linda Lavarch.

Lavarch Inquiry

The inquiry’s terms of reference were only to 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[19] 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.”[20]

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 two Bills before State Parliament, one from the Government and one from the Opposition. 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.[21]

The SCAG Guidelines

Queensland’s changes to its surrogacy laws, as I stated above, did not occur in isolation. In large measure, they were driven by discussions at the Standing Committee of Attorneys-General.

The rules imposed by the Surrogacy Act comply with 15 principles agreed to by the Standing Committee. These principles are draft only, and were submitted in May, 2010 to the Australian Health Ministers’ Conference and the Community Services Ministers’ Conference^{^[22]}. The draft principles provide:

Draft SCAG surrogacy principles

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.

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.

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.

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.

The first point that must be noted about these principles is that there is no reference to commercial surrogacy. The consultation paper which led to these principles clearly outlined that commercial surrogacy was anathema^{^[23]}.

The second point is that the principles set out a basic scheme to allow for altruistic surrogacy.

The third point is that the alteration of birth certificates enables a court in one State to effect a change in the birth certificate of a child born anywhere in Australia (with the exception of Tasmania, currently, and the Northern Territory).

The fourth point is that a serious limitation with the system is principle 5, by which the intended parents can only obtain a parentage order in their home State. At first glance, this doesn’t pass the “so what?” test. So what if they have to apply in their home State, why would this make any difference?

Example

The intended parents, Bob and Jane, live in Victoria. The child, Rodney, is born in South Australia. Bob and Jane obtain a parentage order in the Supreme Court of Victoria. That order is sent to the Registrar of Births, Deaths and Marriages in Victoria, where it is recorded. The details of the order are then sent to the Registrar of Births, Deaths and Marriages in South Australia where Rodney’s birth certificate is changed to show that Bob and Jane are the parents.

However, the residency test can make a clear difference. Unlike the Surrogacy Act, some interstate legislation discriminates:

· Western Australia’s Surrogacy Act 2008[24] only allows married, heterosexual de facto couples and single women to access altruistic surrogacy. Therefore single men and gay and lesbian couples cannot pursue altruistic surrogacy. Their only options are to pursue altruistic surrogacy interstate, such as Queensland, where they would be able to receive treatment, but not a parentage order, or to pursue commercial surrogacy overseas. If altruistic surrogacy occurred in Queensland, a Western Australian couple could then obtain an adoption order in Western Australia[25].

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. 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.

· South Australia’s Family Relationships Act 1975[26] only allows married and heterosexual de facto couples to access altruistic surrogacy. Singles, and gay and lesbian couples cannot pursue altruistic surrogacy. Their options are to pursue altruistic surrogacy interstate or commercial surrogacy overseas. Singles and gay and lesbian couples are unable to adopt in South Australia[27].

· The ACT’s Parentage Act 2004[28] only allows couples to access altruistic surrogacy. Single people cannot pursue altruistic surrogacy there. They are however eligible to adopt.[29]

· Tasmania’s Surrogacy Contracts Act 1993 bans all forms of surrogacy in that State. However, there is nothing currently to prevent Tasmanians pursuing altruistic surrogacy interstate or commercial surrogacy overseas. There are currently two Bills proceeding before Tasmania’s Parliament to allow altruistic surrogacy, but it is likely that they will be significantly amended before being passed.

The view taken by SCAG, apparently, is opposed to commercial surrogacy. The closest that we have to a rationale for this position is stated in a working paper:

“It is judged that commercial surrogacy commodies the child and the surrogate mother and risks the exploitation of poor families for the benefit of rich ones.”[30]

From 1 June 2010

The Surrogacy Act 2010 commenced on 1 June 2010 in all respects. It arose from the Government’s response to the Lavarch inquiry and from discussions held at the Standing Committee of Attorneys-General. The Act 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.

A quick comment about surrogacy arrangements

To obtain a parentage order, a surrogacy arrangement is required. There is a belief that surrogacy arrangements are required under Queensland law. They are not. A surrogacy arrangement is only required if:

1. IVF treatment is sought from a clinic; or

2. A parentage order might be sought from the Children’s Court.

If a traditional surrogacy is pursued (which is not recommended), it is perfectly legal to enter into an oral surrogacy arrangement. Such an arrangement may be very foolish, but it is perfectly legal. The real benefits from having compliant surrogacy arrangements are clearly to enable treatment to commence, and to enable a parentage order to be made.

The method of regulation is a curious one. There is no direct penalty for non-compliance. The real penalty for non-compliance with the statutory scheme is the inability to be named on the birth certificate as a parent.

Climbing Jacob’s Ladder: the surrogacy slowstep

For those considering undertaking altruistic, gestational surrogacy and wish to proceed via a parentage order, there is a 21 step approach:

Step 1: Initial assessment by a doctor

Except for single men, or gay couples, where the initial assessment is obviously not required, those considering surrogacy will need medical advice that for some reason there is a medical need for the surrogacy[31]. The reality is that clients will only come to the prospect of surrogacy as a last resort. Surrogacy is time consuming, fraught with potential pitfalls and expensive. Intending parents would rather have a child naturally, or with the benefit of IVF or artificial insemination, or even adoption, rather than go through the gruelling process of surrogacy, if it can be avoided. The cost to parties undertaking altruistic surrogacy is estimated at between $40-60,000, when one takes into account potential medical and legal costs. It involves someone else carrying your child. It involves bearing your soul in counselling, having to engage lawyers and going to court. It is not for the faint-hearted.

For lesbian couples, both women will have to demonstrate a medical need[32].

Step 2: Finding the surrogate

It is an offence to publish a notice to locate your surrogate . Commonly, the surrogate will be a good friend, sister or mother of the intended mother.

Step 3: The intended surrogate is a suitable surrogate

Aside from any mental health issues, a willing surrogate will need to be medically suitable. This means another trip to the fertility doctor. It is wise for her partner to accompany her on this occasion, not only to be supportive, but because of the need of the clinic to satisfy itself that the arrangement is supported by all parties[33].

Step 4: Donor egg or sperm

Donor egg or sperm may not be required. There is no restriction in Queensland on the use of donor egg or sperm or both. There are usually few difficulties in the availability of donor sperm. I have received varying reports as to the availability of eggs from anonymous donors. Some clients have reported no difficulties. Other reports I have received have been a delay of 2 to 7 years!

Step 5: Counselling

Counselling must occur before signing the surrogacy arrangement. It is a requirement of the Surrogacy Act and also the requirements of the clinics by virtue of their licensing requirements[34] that adequate counselling be undertaken. Typically this will be by the associated counsellor, who will see the intended parents, the surrogate and her partner. As counselling is also required of sperm and egg donors[35], there is every chance that this counsellor will have counselled them, too, although that will be separate counselling.

Step 6: Life, disability and health insurance

It is imperative in my view that as part of the arrangement that the surrogate has adequate life insurance, with appropriate beneficiaries, adequate disability insurance, and that if possible appropriate health insurance. These are fundamentals. Imagine if the surrogate were to die or to have permanent long term disabilities, and her children were not provided for?

Step 7: Legal Advice

The parties will then obtain legal advice. Advice must be obtained before the arrangement is signed. The solicitors will then settle the terms of the surrogacy arrangement. It is wise in my view that written advice, confirming oral advice, is provided. Surrogacy is an area in which claims against solicitors could be significant. Care must be taken to avoid claims.

Step 8: Signing the surrogacy arrangement

Step 9: Treatment commences

Before this can happen, a copy of the surrogacy arrangement is provided to the clinic. Queensland Fertility Group also requires statutory declarations or affidavits respectively from the parties, the initial counsellor/s and the solicitors for the parties. Without these being supplied, treatment will not commence.

Step 10: Implantation!

Step 11: Further counselling and medical checks

During the course of the pregnancy, there should be more counselling. The intended parents should be in attendance for all medical checkups of the surrogate, especially any scan.

Step 12: The child is born!

The choice of hospital, and relevant insurance and costs of that hospital should be decided early. I have received reports that some hospitals refuse to be involved with surrogacy matters, citing religious concerns. Issues to be considered will be whether the intended parents can be in the birthing room, and subsequently stay with the surrogate and child in hospital.

Step 13: The child is handed over to the intended parents

It is unlikely that the hospital will hand over the child to the intended parents before the surrogate leaves hospital. This is particularly an issue for Caesarians, when the surrogate might be in hospital for greater than a week.

Step 14: More counselling

There should be more counselling of the parties after the birth, as Michael Condon recommends. It is not a legal requirement, but wise to be undertaken.

Step 15: The child’s birth is registered

Before a parentage order can be made, the child’s birth must be registered.

Step 16: The surrogacy guidance report is obtained

This is the report to say to the court that the expert has interviewed the parties and observed the child, and that the report writer is of the view that the proposed arrangement is in the best interests of the child. Given the delays in getting appointments with experts, and given the time limits for applying for a parentage order (28 days to 6 months after the child is handed over), if the child is to be born on a certain date, it is best to organise the dates for interviews earlier to ensure that the application for a parentage order is able to be brought as soon as possible.

Step 17: File and serve material for court

Step 18: Parentage order is made

Step 19: A new birth certificate is issued, showing the intended parents as mum and dad.

Step 20: More counselling

Step 21: The child is told at the first appropriate moment “where did I come from”.

It is essential to consider, from the beginning, what ongoing relationship, if any, the child will have with the surrogate and her partner. The surrogate might be a good family friend, or ordinarily considered to be grandma, for example.

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.”

Significantly, the government did not accept the committee’s recommendation that there be a surrogacy review panel of similar nature to those in Victoria or Western Australia. This means that surrogacy arrangements in Queensland are cheaper and quicker than surrogacy arrangements in those States.

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

Not commercial surrogacy

Commercial surrogacy arrangements are prohibited.[36]

This prohibition applies both in Queensland and to those ordinarily resident in Queensland engaging in commercial surrogacy arrangements anywhere else, including overseas[37]. For example, while it may be perfectly legal in the Northern Territory or California or India to engage in commercial surrogacy, for someone ordinarily resident in Queensland to do so is an offence. It is legal, in Queensland, for someone ordinarily resident in Queensland to engage in altruistic surrogacy outside Queensland.

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.”

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.[38]

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

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.”

There is a one year limitation period for offences against the Act.[40]

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.

Independent legal advice

The surrogate and her spouse (if any) must before they sign the surrogacy arrangement have had independent legal advice.[41] The intended parent/s also need to have independent legal advice before the surrogacy arrangement is signed.[42]

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[43] member, a member of the RANZ College of Psychiatrists, a member of the AASW or a member of the Australian Psychological Society.[44]

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[45]. 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.[46] 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[47]. 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.[48]

Surrogacy arrangement needs to be written

The surrogacy arrangement needs to be signed by the birth mother, her spouse and the intended parent/s.[49] 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.[50]

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;

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.[51]

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. Accordingly, clinics require a copy of the signed surrogacy arrangement before performing any treatment.

Obtaining the parentage order[52]

There are a number of key steps that need to be taken to obtain the parentage order.

The child is born and handed over to the intended parent/s.[53]
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.[54]
The order is for the wellbeing and the best interests of the child[55], this being the paramount consideration[56].
The intended parent/s make the application together.[57]
The birth mother and her spouse and any other birth parent all consent to the making of the parentage order.[58] 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.[59]
The birth mother and her spouse were at least 25 years when the surrogacy arrangement was made.
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.[60] 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.
A surrogacy guidance report has been obtained.[61] 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.[62] 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.
There must be evidence of a medical or social need for the surrogacy arrangement.[63] In essence, whilst there might be evidence of medical need for any male intended parent (including any gay couples) social need is sufficient.
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.[64] 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.[65]

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.[66]

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”.[67] There is also a dispensation if the birth mother or a spouse has died, loses capacity or cannot be located.[68]

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.[69] 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 .

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.”

In May this year the Courier-Mail ran a series of stories over a week, focusing on surrogacy. The key story was that the surrogate, whom the paper named as “Rosie” regretted entering into the surrogacy arrangement and wanted the child with her, which was genetically half hers. The two key messages I received from this development were:

• The surrogacy was a traditional surrogacy, which generally should be avoided, for this very reason;

• Because the transaction was entered into when it was illegal, “Rosie” had not, before the surrogacy, received any counselling nor any legal advice, both of which in my view are essential.

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 seems 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 might not have contemplated.

2. Counselling, 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 my co-presenter Michael Condon of counselling at 12, 28, 35 weeks of pregnancy, and 6-8 weeks post-partum, and 3, 6, 12 months after delivery and that the patient or surrogate is able to contact the clinic nurse or counsellor at any time if concerned.

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. This is a fine balancing act.

Surrogacy is a process of love in which a baby is hopefully conceived and born. It is easy for lawyers to destroy or damage 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. Again, it is a matter where you will need to take especial care.

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. One would have to question the suitability of a surrogate who insisted that the intended parents could attend any medical appointment, but not any medical appointment where she was nude or partially nude, including 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. 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. 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.

What can go right

A happy healthy child is born to the intended parents. The child has some form of healthy relationship with the surrogate, knows her genetic make up and where she came from.

What can go wrong

There are many risks with surrogacy. No client should be thinking of entering into a surrogacy arrangement without a great deal of thought. Surrogacy is full of ethical dilemmas and risks. Rarely is it a straightforward matter.

Medical risks

The medical risks include:

• The surrogate might die.

• The child might die.

• There may not be a successful pregnancy. Clients are devastated when this happens.

• There may be a miscarriage. Clients of mine lost their children. It was their last embryo. They had pursued the dream of parenthood for over 12 years. The loss of the twins, with the prospect of not being able to have more children, was crushing.

• There might be a still birth.

• More than one child is born. Clients of mine ended up with four children, when they expected one.

• The child has a mild or severe disability.

• The surrogate might gain lifelong medical complications, such as gestational diabetes, a back condition, depression, or for older women, a stroke.

• One or both intended parents die before the child is born.

Relationship Risks

The relationship risks include:

• The surrogate has an abortion.

• The intended parents split up, and neither wants the child. This occurred some years ago in India with a Japanese couple who after separating each decided that they did not want the child. The child ultimately was cared for by one of the grandmothers. Will the child end up in foster care? Are the intended parents financially secure?

• The surrogate decides to keep the child. This is the often held fear of the intended parents. With proper screening, counselling and legal advice, the chances of this happening is low. However, overseas clinics have indicated a higher risk for those surrogates solely motivated by money, who have not had children before. My first surrogacy case involved a surrogate who was paid $10,000, but decided to keep both the money and the child, knowing that the intended parents would not take action to recover the child or the money, because of the risk of prosecution under the then Surrogate Parenthood Act 1988.

The intended parents don’t want the child, but the surrogate instead of giving the child for adoption as previously agreed, decides to keep the child. If so, there is at least the possibility of a claim against the intended parents for damages. The basis may be for issue estoppel.

W v G [1996] NSWSC 43

The parties had a lesbian relationship. The parties set about having two children together, using IVF. Following their breakup, the co-mother told the mother that she was not liable for child support (as she was not covered by the Child Support (Assessment) Act) and was not liable for child maintenance (as she was not covered by the Family Law Act) and therefore no payments needed to be made by her for the children.

The mother then commenced court proceedings seeking amongst other things a payment for the cost of bringing up these children.

Hodgson J summarised the mother’s (named in the judgment as the Plaintiff’s) case:-

“The plaintiff’s claim for child support was put on the following basis. By virtue of these statements and the conduct by way of support for the plaintiff and her participation in the actions leading to the impregnation of the plaintiff and by her silence as to any contrary view, the defendant created or encouraged in the plaintiff a belief or assumption, or otherwise could be said to have promised to the plaintiff, that she, the defendant, would accept the role of parent to each of the children and would in so doing accept responsibility for the material and general welfare of both children, and would support the plaintiff in providing for the needs of both children and of the plaintiff as their mother. In reliance on that promise or assumption, the plaintiff acted to her detriment by going about the actions which led to her conceiving each child and carrying each child to term. The defendant knew or intended that the plaintiff would act in reliance on the assumption; and the plaintiff’s actions in so relying will occasion detriment if the assumption or expectation is not fulfilled, in that the plaintiff will be left to bear the costs of providing for the material welfare of both children until they reach adulthood, and otherwise the plaintiff will suffer detriment in the form of income and opportunities foregone by virtue of her pregnancies, and also by virtue of the obligation she bears towards both children in terms of parenting in the provision of care. The defendant had failed to act to avoid that detriment, her action was unconscionable, and it was appropriate for the court to give effect to the resulting estoppel by ordering payment of an appropriate lump sum by the defendant to the plaintiff in respect of child support.”

His Honour ordered that the defendant provide just over $150,000 towards the cost of raising the children.

Legal risks

The legal risks include:

• No or inadequate life or disability insurance or a lack of health insurance for the surrogate.

• A court refuses to make a parentage order.

• An inability to obtain an adoption order.

• A costly and bitter Family Court case. A clear example of this was Re Evelyn (1998)[70] .

• For those who have undertaken surrogacy overseas, being prosecuted for an offence, or not being allowed to have the child settle in Australia if it is denied Australian citizenship.

• Being sued for negligent misstatement.

Example

George and Martha are the intended parents by gestational surrogacy. George will be the genetic father and Martha the genetic mother. Francine is the surrogate to be. Both George and Martha tell Francine that they are free of any sexually transmitted infection. The surrogacy arrangement also states that George and Martha are free of any STI. George is not. He has HIV, but doesn’t it know it. George and Martha persuade the clinic not to follow the usual 6 month quarantine for their sperm and egg, as they want to have a baby yesterday. Francine contracts HIV from George’s sperm. In addition to any claim against the clinic, Francine may have a claim against George for damages.

The overseas ban

Australia has a schizoid approach to whether or not Australians commit an offence by entering into commercial surrogacy overseas. For people ordinarily resident in Queensland; NSW (or domiciled there) [if entered into after 1 March, 2011]; or the ACT, it is a criminal offence. It is not but may soon be an offence in Tasmania. It is not an offence in Victoria, Western Australia, South Australia or the Northern Territory. People who live in Albury commit a criminal offence. Those who live in Wodonga do not. In April the Victorian regulator, VARTA[71] held a seminar on cross-border reproductive care, i.e., how to undertake surrogacy in India. Until 1 January, 2010 it was an offence for Victorians to access commercial surrogacy overseas.

Mishmash of laws

Currently we have nine sets of laws in Australia concerning surrogacy. There are laws for each State and Territory (if you include the Northern Territory, where there are no laws), plus sections 60H and 60HB of the Family Law Act and provisions of the Australian Citizenship Act 1997, relevant to Australian children acquiring citizenship from descent from an Australian parent. The State laws are not compatible, are State based, and lead to an increase in confusion and client’s costs. With the exception of Western Australia, the courts that have the most expertise to deal with parenting matters, the Family Court and the Federal Magistrates Court, have no involvement with the making of parentage orders.

Example

When John Hatzistergos, the then NSW Attorney-General, announced that that State would have new surrogacy laws, he said that NSW would copy the Queensland Act. Well, NSW didn’t. The NSW Act is very similar to the Surrogacy Act, but there are clear differences. I had Queensland clients undertaking a surrogacy arrangement. The surrogate lived in NSW. I checked the NSW Act, particularly as to expenses. If there were not compliance with both Acts on this point, one or more of the parties may have inadvertently committed offences related to commercial surrogacy. After reading section 11 of the Surrogacy Act and its NSW equivalent side by side, I could not tell how they were different, except that they were clearly different. Two of my staff members then were assigned the job of reading them side by side, to see what the differences were. The differences were then marked with highlighter pen. On checking, it was clear that in substance there was no difference between the two provisions.

Family Court cases

Cases in the Family Court have primarily focused on children born through commercial surrogacy arrangements overseas.

Re Mark (2003)[72]

Mr X and Mr Y sought and obtained parentage orders from the Family Court of Australia. Mr X was the genetic parent. Mr X and Mr Y had engaged in commercial surrogacy in California. To do so in Victoria at that time was illegal. Brown J stated:

“Mr. X provided his genetic material with the express intention of fathering (begetting) a child he would parent. He is not a sperm donor (known or anonymous) as that term is commonly understood. The fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of Mark.

60. I am satisfied that the ordinary meaning of the word ‘parent’ encompasses a person in Mr. X’s position.”

Her Honour then queried whether Mr X would be a “parent” within the meaning of the Family Law Act. Her Honour dealt with the old section 60H.

Her Honour was clearly not interested in referring the matter for investigation as to possible prosecution:

“It is the Family Law Act which governs this case, not the provisions of the surrogate agreement. The fact that such an agreement would be illegal in Victoria, by virtue of the provisions of the Infertility Treatment Act 1995 (Vic), is not a relevant consideration.”

Cadet and Scribe (2007)[73]

Mr Cadet and Mr Camden, a couple from Victoria, undertook a commercial surrogacy arrangement with Ms Scribe and her husband in Ohio. It was a gestational surrogacy. Pursuant to an order of an Ohio court the child’s birth certificate showed his father to be Mr Cadet, who was his biological father. The child obtained Australian citizenship by descent. The child had both an Australian passport and United States passport on which he travelled with his co-fathers to Australia. Brown J made a parenting order in favour of the co-father. Her Honour stated:

“Ms Scribe seeks no parental responsibility. To do so would no doubt be in breach of her contractual obligations in the USA but that is not a relevant consideration in this court, surrogacy agreements having no legal status in Victoria.”

At the time, it was an offence in Victoria for Mr Cadet and Mr Camden to have entered into the arrangement in Ohio.

The 2008 Amendments

The 2008 amendments to the Family Law Act rewrote section 60H, and inserted a new section 60HB. Section 60HB provides:

“(1) If a court has made an order under a prescribed law of a State or Territory to the effect that:

(a) a child is the child of one or more persons; or

(b) each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

(2) In this section:

‘this Act’ includes:

(a) the standard Rules of Court; and

(b) the related Federal Magistrates Rules.”

Re Michael: Surrogacy Arrangements (2009)[74]

This is the first of the cases decided by Watts J. It concerned an altruistic surrogacy in NSW before the current NSW Act applied. The parties had entered into a gestational, altruistic surrogacy. The child was cared for by the intended mother and her husband. The intended mother’s mother was the surrogate. Parenting orders had already been made in favour of the intended parents.

The intended mother and father, and the surrogate, in effect the grandmother, sought leave to adopt so that an adoption application could then be made in the NSW Supreme Court. Watts J dismissed the application.

As an illustration of the complexity of the laws, he found:

As there was not a NSW Act referred to in the Family Law Regulations, then s.60HB did not apply;
The effect of the first limb of s.60H was that the legal parents were the surrogate and her de facto partner;
“It was the legislative intention of s 60HB FLA to grant the status of parents to the providers of genetic material in a surrogacy arrangement if that was consistent with an order made in accordance with the provisions of a prescribed State law. In circumstances where State law did not allow an order to be made recognising the providers of genetic material as parents, it was Parliament’s intention that they not be recognised as parents. Consequently the provisions of s 60H(1)(d) FLA then apply and a child is not to be considered a child of those who have provided genetic material.”
The effect of the second limb of s.60H was that the presumptions under the Status of Children Act NSW 1996 applied, which in turn provided that the surrogate was the mother and her partner the father;
“I conclude that the presumption arising from s 69R FLA [that the intended father being registered on the birth certificate as the father is therefore presumed to be the father] may not only be rebutted by proof but also rebutted by the operation of another provision of the FLA for the following reasons:

51.1. The words “if, and only if” are not used in s 69U(1) FLA (as they are for example in s 90G(1) FLA; s 90UJ(1) FLA).

51.2. Persons providing genetic material in a surrogacy arrangement could register as parents without any State order being made. If s 69R FLA then allowed them to be parents for the purposes of the FLA, the parliamentary intention behind s 60HB FLA would be circumvented.

51.3. Section 60H(1)(c) FLA and the use of the phrase “the other intended parent” in s 60H FLA seems to imply that there can only be two parents.

51.4. It would not in my view be possible for a court to make a declaration under s 69VA FLA that Paul is Michael’s father based upon the presumption arising from s 69R FLA, because of the existence of s 60H(1)(d) FLA.”

His Honour suggested that the intended parents may be successful in applying as “relatives” to adopt Michael.
The only applicant who was a parent was the surrogate, but “unless I was reasonably confident that there was a basis upon which she could make such an application to the Supreme Court and that she had reasonable prospects of success.” Due to the provisions of the Adoption Act NSW, his Honour found that he could not be so satisfied, and dismissed the application.

Wilkie and Mirkja (2010)[75]

Mr Wilkie and his partner Mr Edmore, from Victoria, sought and obtained parentage orders from the Family Court. They had undertaken a commercial surrogacy in Mumbai. At the time they did so, it was an offence to do so in Victoria. Mr Wilkie was the genetic father.

Cronin J stated:

“It is clear in this case that neither Mr Edmore or Mr Wilkie technically may be seen as a parent of the child because there is no evidence to establish that. In this case, it does not matter because what I have is two people who are applying for parental responsibility and the parental responsibility will continue until the two girls are 18 years of age. A parenting order confers parental responsibility under section 61D on a person but only to the extent to which the order confers on that person duties, powers, responsibilities or authority in relation to the child. A parenting order in relation to a child does not take away or diminish any aspect of parental responsibility except where the order provides for it….

In this case, the children do not have the benefit of a mother but they have the good fortune of having two fathers. There is no definition of parent in the Act other than in relation to an adoption application. As such, whilst it is clear that the Act talks about a parent as a mother and a father, it is more important to look at the benefits that children receive from the parenting responsibilities that the people who care for them undertake and in this case, there is little point in pursuing a definition of a parent.”

Collins and Tangtoi (2010)[76]

Mr and Mrs Collins, from NSW, underwent a commercial surrogacy in Thailand, in which Mr Collins was the genetic father and shown on the birth certificate as the father. Loughnan J stated:

“(I)t seems to me that Mr Collins is the father of the children. He is recorded on the birth certificate. He is acknowledged by the person who, under Thai law is the mother of the children. We have scientific evidence that the children are his. In those circumstances I am comfortable that Mr Collins is the father of these children.”

O’Connor and Kasemsarn (2010)[77]

Mr O’Connor, a single man from NSW underwent a commercial surrogacy in Thailand. At the time that he did so, there was no extra-territorial ban in NSW. Mr O’Connor sought orders from the court, in effect to establish that he was the parent.

Ainslie-Wallace J, following Collins and Tangtoi, stated:

“What is clear beyond doubt in this case is that the applicant provided his genetic material through IVF and is the biological father of the children. I am satisfied that he is a parent in the sense of having “begotten” the children.”

Ronalds and Victor (2011)[78]

Mr Ronalds and Mr Victor, a gay couple from Victoria, had engaged in commercial surrogacy in Mumbai. Mr Ronalds was the genetic parent. They sought and obtained orders from the Family Court that they share parental responsibility. Dessau J stated:

“It would be to the detriment of the girls if only Mr Ronalds could make the major decisions for them, particularly in the context of Mr Victor attending to their daily care. While Mr Ronalds is in paid work, if urgent major decisions are needed it is particularly important and in the children’s interests that Mr Victor is able to act, sign documents, and give instructions on their behalves, just as Mr Ronalds can.”

Dennis and Pradchapet (2011)[79]

Poor Mr and Mrs Dennis (following the Family Court pseudonym naming system) are the same as Mr and Mrs Dudley below. Mr and Mrs Dennis entered into a commercial surrogacy arrangement in Thailand in which Mr Dudley was the genetic father and named on the birth certificate as the father. Mr and Mrs Dennis sought and obtained orders from the court to share parental responsibility for a child. On the day that this child was born, twins were born to another surrogate in Thailand, these twins being the subject of Dudley and Chedi below.

Stevenson J stated:

“I am satisfied and I find, that the father is a “parent” of the child L for the following reasons:

• He and the surrogate mother both say on their oath that he provided his genetic material to fertilise the anonymously donated egg in the IVF process;

• DNA testing has established that he is the child’s biological father;

• He is registered as the father on the child’s Thai birth certificate and “House Registration” document;

• He assumed the role of father to the child almost immediately on his birth;

• He intends, jointly with his wife, to provide ongoing care and support for the child;

• The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the child’s life.”

Dudley and Chedi (2011)[80]

This is when Mr and Mrs Dennis (or Dudley) struck trouble. The intended parents, from Queensland, applied to the Family Court for an order for joint parental responsibility for twins born through a commercial surrogacy arrangement in Thailand. Mr Dudley was an Australian citizen. Mrs Dudley was an Australian permanent resident. Watts J ordered that they have parental responsibility, but referred the matter to prosecutors for investigation due to the extra-territorial provisions of the Surrogate Parenthood Act 1988 and the Surrogacy Act 2010.

Mr Dudley was the genetic father of the child and was recognised on the Thai birth certificate as the father.

His Honour found that Mr Dudley was not a “parent” as a matter of law:

“32.1. Applicable State law made what he did illegal;

32.2. There was at that time no provision in State law that would allow the recognition of any relationship between the twins and Mr Dudley;

32.3. Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;

32.4. Mr Dudley may seek a remedy through adoption legislation; and

32.5. The orders that are sought in this case can be made without recognising Mr Dudley as the father of the twins.”

One is left wondering how Mr Dudley or Dennis could be considered by Stevenson J to be a parent, but by Watts J not to be one. One is also left wondering whether the twins are Australian citizens by descent (and therefore entitled to live in Australia), when they need to have an Australian citizen who is a parent. There is then a real risk that the children may not be allowed to stay in Australia. It appears that his Honour did not consider this issue in his judgment.

His Honour went on to say:

“There is a general policy question as to whether or not I should make the requested orders, which could be perceived in some sense to sanction acts which were illegal in Queensland at the relevant time and which were against public policy (such public policy now being recognised by way of legislation through virtually the whole of Australia in making those acts illegal, with possible severe penalties).

However, the paramount consideration for my decision about the orders sought is the best interests of the twins (s 60CA Family law Act).]

Given that I am considering whether to make an order with the consent of all the parties to the proceedings, I may, but I am not required to, have regard to all or any of the matters set out in ss 60CC(2) and (3) Family Law Act.

At the end of the day when focusing upon the best interests of L1 and L2, there are a number of undisputed facts:

40.1. They are living with the applicants in Queensland;

40.2. They have been brought up with their other sibling, in respect of whom orders of the nature sought in these proceedings have already been made; and

40.3. They need to live with someone and be looked after by someone.”

Whilst his Honour said that the children “need to live with someone and be looked after by someone” an unintended consequence of his Honour’s decision might be that the children might not be able to stay in Australia, and may not be able to be cared for outside Australia as a result of his Honour’s decision.

Ironically, the couple cannot be prosecuted, as the offences were committed before the one year time limit in Queensland, making the gesture by his Honour a futile one, except that it would have been very distressing to the intended parents. However, the precedent has now been set for other referrals for those intended parents from Queensland, NSW (after 1 March, 2011), the ACT and possibly Tasmania. The case illustrates, yet again, the minefield for Australians contemplating surrogacy.

Hubert and Juntasa (2011)[81]

A gay couple from NSW, Mr Hubert and Mr Peralta, undertook commercial surrogacy in Thailand. Mr Hubert was the genetic parent and shown on the Thai birth certificate as the father. Mr Hubert and Mr Peralta applied to the Family Court for an order that they have shared parental responsibility. Watts J made the order.

His Honour stated:

“The applicants entered into their surrogacy arrangements prior to 1 March 2011. The relevant law regulating surrogacy in operation when the applicants entered their surrogacy arrangement and when the child was born, was s 42 to 45 of the Assisted Reproductive Technology Act 2007 (NSW) (“ARTA (NSW)”). Section 43 ARTA (NSW) prohibits entering into, arranging or receiving benefits under a commercial surrogacy arrangement in New South Wales. The penalty is 100 penalty units ($11,000 as per s17 Crimes (Sentencing Procedure) Act 1999 (NSW)) or two years imprisonment. Section 45 renders surrogacy agreements void.

I infer that the birth mother was paid some type of fee, either directly by the applicants or by the Thai clinic (which then passed those costs onto the applicants). I suspect, but I do not know, that the fee was an amount more than the birth mother’s costs.

I refer to my judgment in the case of Dudley and Anor & Chedi [2011] FamCA 502 regarding the rationale behind the illegality of commercial surrogacy .

I have no evidence as to what, if any, safeguards were in place to protect the surrogate mother from emotional or financial harm. I do acknowledge that the surrogate mother:

12.1. Spoke to the parties with the aid of an interpreter before she entered into a surrogacy agreement with them;

12.2. Had the content of Thai law in the area of surrogacy explained to her by a Thai lawyer;

12.3. Had the content of Australian law in the area of parenting explained to her by an interpreter;

12.4. Had the Parenting Plan read to her in her own language before she signed it; and

12.5. Was read the Australian court documents in her own language before signing them.

LACK OF GEOGRAPHICAL NEXIS

Although s 43 ARTA (NSW) created an offence had the applicants done what they had done entirely in New South Wales, before 1 March 2011 it was not illegal for a person ordinarily resident or domiciled in New South Wales to enter into a commercial surrogacy arrangement outside Australia. The offence created by s 43 ARTA (NSW) was subject to Part 1A Crimes Act 1900 (NSW) (“CA (1900)”) and in particular, s 10C CA (1900). It is not clear that it could be said that the offence has an effect in the State of New South Wales. Part 1A CA (1900) and in particularly s 10C CA (1900) would mean that the applicants are unlikely to be guilty of a criminal offence….

I refer to my reasons in the case of Dudley and Anor & Chedi for further discussion of the applicable law regarding the assessment of ‘parent’ for the purpose of the FLA.

In relation to the current state law regarding parentage, the applicants are not assisted. A parentage order may be made under the Surrogacy Act 2010 (NSW) even if the surrogacy agreement was entered into before the commencement of the act (s15). However, a number of sections in the Surrogacy Act 2010 (NSW) preclude a State parenting order in the applicants’ favour including the requirements that: all parties undertake counselling (s35); and most importantly, it is mandatory that the agreement is not a commercial surrogacy agreement (s23). The Status of Children Act 1996 (NSW) also does not assist, with an irrebuttable presumption (s14(4)) that the surrogate mother is the parent (s14(3)), and the first applicant, being a sperm donor, is not (s14(2)). I note that Status of Children acts are generally more applicable to the protection of a sperm or egg donor in more conventionally assisted reproductive procedures.

The applicants have not yet sought to gain parental status by seeking leave to adopt the child.

As in Dudley and Anor & Chedi despite the uncertain parentage under state law, I note that I do not need to make an assessment of the child’s parentage to make the orders sought in this case, and so decline to do so because of the public policy concerns behind how current surrogacy laws have been framed in New South Wales and consistently with other places in Australia.”(emphasis added)

Findlay and Punyawong (2011)[82]

This is the third of the recent decisions delivered by Watts J. Mr and Mrs Findlay, a Queensland couple, undertook commercial surrogacy in Thailand. Mr Findlay was shown on the birth certificate as the father, and was the genetic father. Parenting orders were made.

His Honour referred this matter to Queensland prosecuting authorities, too. The child was born in January, 2011. It is likely that Mr and Mrs Findlay committed an offence within the time limit of making payment, and may therefore be charged.

Johnson and Anor & Chompunut (2011)[83]

This is the fourth of the recent decisions by Watts J. Mr and Mrs Johnson from NSW undertook commercial surrogacy in Thailand. His Honour declined to find that Mr Johnson was a “parent” of the child, notwithstanding the following:

“The child is not eligible for an Australian visa on the basis of descent of an Australian citizen, failing the production of a Thai court order that the surrogate mother has relinquished her right as a parent. I am told it is not possible to obtain such an order in Thailand against an unwed mother until the child has reached the ‘age of reason’ at about seven or eight years. A sub-class 101 visa has not yet been granted permitting the child to travel to Australia with the father. At the time of the hearing before me, the evidence was that it was expected that that visa would be granted soon. The applicants openly indicate that the application for the orders from this court is partly to strengthen their application for Australian citizenship for the child.”

Lowe & Barry and Anor (2011)[84]

Mr and Mrs Lowe aged 61 and 47 were the intended parents. I will call them “father” and “mother’ respectively. They lived in Tasmania.

The father and mother had a 13 year old daughter, obtained through a gestational surrogacy arrangement, in which the mother’s sister was the surrogate. The child had disabilities. They wanted to have another child.

Along came the mother’s nephew, 20, and his partner, 18, who lived in NSW. They already had a child. They offered to have a child for the mother and father. The child was conceived. The genetic parents of the child were the nephew and his partner. Following the partner becoming pregnant, she moved to Tasmania to live with the mother and father. The nephew’s partner gave birth in Tasmania.

At or about the time of birth, the mother and father cared for the child as if it were theirs, and they had in every respect acted as if they were the child’s parents. The child was about 7 months old when the matter was before the court.

Benjamin J noted that the current Tasmanian Act would make such an arrangement illegal as it would be a surrogacy contract. However, his Honour declined to send the matter for investigation, and found that the arrangement “may” be illegal because:

“ In this case it is not clear in which State the contract was entered into and/or whether it is the parties to the agreement who may be in breach of the law, or whether it is directed at third parties who facilitate such agreements. Either way that is not a matter for me.”(emphasis added)

His Honour also noted that there was a Surrogacy Bill currently before the Tasmanian Parliament which:

“If enacted the Bill would provide a legal mechanism for the parentage of a child born as the result of a surrogacy arrangement to be transferred from the biological mother to the intended parents.”

Despite a “sense of unease”, his Honour made the intended parenting orders (that the child live with and be cared for the mother and the father) as he was “satisfied that the child is safe, well cared for and loved”.

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. Practitioners ought to carefully decide whether they ought to practice in surrogacy matters, and if so take a very cautious approach in light of their duties and professional indemnity issues.

Stephen Page

Harrington Family Lawyers

[1] Partner of Harrington Family Lawyers, author of the Australian Surrogacy and Adoption Blog http://surrogacyandadoption.blogspot.com , member of the Fertility Society of Australia.

[2] [2011] FamCA 502

[3] Surrogacy Bill and Surrogacy (Consequential Amendments) Bill, viewable here: http://www.parliament.tas.gov.au/bills/billsweb.htm. The writer has given evidence to an Upper House committee about the proposed amendments.

[4] Jenni Millbank "The New Surrogacy Parentage Laws in Australia" Melbourne University Law Review, Vol 35, 2011 at pp4-5.

[5] Discussions with various MP’s in 2009 and 2010.

[6] [2011] FamCA 625.

[7] See ss. 15, 17, 19C, 19F, 30 Status of Children Act 1978 Qld; S. 17 Surrogacy Act 2010 Qld.

[8] Genesis 16: story of Sarah and Abraham, Hagar being the surrogate; see also Lowe and Barry [2011] FamCA 625.

[9] S.3.

[10] S.7

[11] S.7

[12] S.7

[13] S.43

[14] Territorians, however, have relied upon their ART services being provided by South Australian licensed doctors.

[15] SMH 8/11/06

[16] SMH 8/11/06, Sunday interview with Laurie Oakes 1/4/07, The Australian 13/4/07

[17] S.3 Surrogate Parenthood Act 1988 Qld.

[18] S.63 Surrogacy Act 2010 Qld.

[19] www.parliament.qld.gov.au/view/committees/documents/SURROGACY/Report.pdf

[20] Introduction

[21] Hansard 11/2/10, I was also present and witnessed the vote.

[22] SCAG website viewed July, 2011: http://www.scag.gov.au/lawlink/SCAG/ll_scag.nsf/pages/scag_achievements#Surrogacy

[23] Standing Committee of Attorneys-General, Australian Health Ministers’ Conference, Community and Disability Services Ministers’ Conference Joint Working Group, A proposal for a National Model to Harmonise Regulation of Surrogacy, 2009, pp 2-3

[24] Surrogacy Act 2008 WA, s.19

[25] Adoption Act 1994 WA, s.39

[26] S.10HA

[27] Adoption Act 1988 SA, s.12

[28] S.24

[29] Adoption Act 1993 ACT, s.16

[30] Standing Committee of Attorneys-General, Australian Health Ministers’ Conference, Community and Disability Services Ministers’ Conference, A proposal for a national model to harmonise regulation of surrogacy, 2009, pp.2-3

[31] Ss.14, 22(2)(d) Surrogacy Act 2010

[32] S.14(2) Surrogacy Act 2010

[33] In particular, National Health and Medical Research Council, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research, 2007, guidelines 5.5 and 9.1.

[34] NHMRC Guidelines.

[35] NHMRC Guidelines

[36] Section 56. See also: s. 22(2)(e)(vi).

[37] Section 54.

[38] Section 55.

[39] Section 10.

[40] Justices Act 1886 Qld, s.52

[41] Section 22(2)(e)(i)(A).

[42] Section 22(2)(e)(i)(B).

[43] Australia and New Zealand Infertility Counsellors Association

[44] S.19, and Section 22(2)(e)(ii) Section 22(2)(e)(vi)??..

[45] 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.

[46] Section 22(2)(e)(iv).

[47] Larch report, see pp. 70,-71, 73.

[48] Letter to the writer 16/11/10.

[49] Section 22(2)(e)(v).

[50] S.15.

[51] Cf see note to s.7.

[52] S. 22(2).

[53] S. 22(2)(b).

[54] S.22(2)(b).

[55] S. 22(2)(a).

[56] S.6.

[57] S. 22(2)(c).

[58] S. 22(2)(h).

[59] Ss. 16, 17; Status of Children Act 1978 Qld

[60] S. 22(2)(g).

[61] S. 22(2)(i) section 32.

[62] S. 32, 19.

[63] Section 22(2)(d).

[64] S.. 14(1)(b)(iii), 14(2).

[65] S. 14.

[66] 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.

[67] Section 23(2).

[68] Section 23(3).

[69] Section 21(5).

[70] [1998] FamCA 2378; [1998] FamCA 55.

[71] Victorian Assisted Reproductive Treatment Authority

[72] [2003] FamCA 822

[73] [2007] FamCA 1498

[74] [2009] FamCA 691

[75] [2010] FamCA 667

[76] [2010] FamCA 878

[77] [2010] FamCA 987

[78] [2011] FamCA 389

[79] [2011] FamCA 123

[80] [2011] FamCA 502

[81] [2011] FamCA 504

[82] [2011] FamCA 503

[83] [2011] FamCA 505

[84] [2011] FamCA 625

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