Thursday, 30 August 2012

Tasmanian Upper House passes surrogacy bill, finally:

Tuesday, 28 August 2012

LGBTI legal service fundraiser 6 September

Tomorrow week on Thursday 6th September Brisbane's LGBTI Legal Service is holding a fundraising film night. As a completely unfunded service, relying desperately on the good graces of Caxton Legal Centre and Queensland's Healthy Communities (which has been largely defunded itself), the LGBTI legal service desperately needs funds. All are welcome.

The film night is of the film The Cure, which exposes the movement of evangelical Christians saying that gays and lesbians can be cured. It stars amongst others Brisbane's own psychologist superstar Paul Martin.

I'm going.  Are you? For more about the event, which is at Brisbane's Tribal Theatre (for those long in the tooth like me: the George Theatre), click here:

Tasmania starts the same sex marriage moves

Tasmanian Premier Lara Giddings introduced to the Tasmanian Lower House today a bill to allow same sex marriage. Supported by the Greens, and with a conscience vote from Labor members (but opposed by theLiberals), the bill is expected to clear the Lower House easily. Where it goes in the Upper House is anyone's guess, and then there is the inevitable High Court challenge.

South Australian Premier Jay Wetherill has also said that the ALP will support similar legislation there. That legislation is likely to strike an easier time getting through the Upper House, but is also likely to be challenged in the High Court.

We are in for interesting times.

Tuesday, 14 August 2012

Bleijie won't meet me

The Queensland Attorney's office has written to me today. I will have the letter copytyped and put up. What his chief of staff says are five things:
1. The Attorney, Jarrod Bleijie won't meet me. It's not said why. I am awaiting a response from his office about why I can't meet the Attorney.
2. Lesbian co-mothers are to continue to be recognised. Welcome.
3. No criminality. Welcome.
4. Apparent ability of doctors to treat. Welcome.

5. Discrimination still to be pressed ahead- by the courts not being able to make parentage orders. This means that the surrogates and their partners will remain legally the parents- the thought being that this will deter surrogacies because the child can still inherit from the surrogate and her partner, and be potentially liable for child support.

Sunday, 12 August 2012

Will not criminalising gay, lesbian and single intended parents mean that the Sex Discrimination Act doesn't apply in Qld?

I have been asked to comment about whether the view expressed by the Queensland Attorney-General Jarrod Bleijie that although he intends to press ahead to make sure that gay and lesbian couples, singles, and heterosexual de facto couples of under 2 years will not be allowed to seek surrogacy in Queensland, and that it will not be a new criminal offence, that this will mean that my views that the proposals will be overriden by the Sex Discrimination Act no longer apply.

I remain of the view that the provisions of the Sex Discrimination Act will continue to apply.

What the Attorney's chief of staff has said was that there will be no new offences. This is not to say that the existing offence of entering into a banned surrogacy arrangement, namely a commercial surrogacy arrangement, could be amended, to change it to non-eligible surrogacy arrangement, and that "non-eligible" could be defined to mean commercial, or an arrangement when the people seeking surrogacy are not married or living in a heterosexual de facto relationship of less than 2 years.

We have not yet the benefit of a detailed public statement from the Attorney as to what is proposed.

In any event, the Attorney is saying that it is his intention to ensure that surrogacy arrangements are not available when the intended parents are gay or lesbian couples, single or heterosexual couples of less than 2 years.

This means that on the face of it, and as always we will have to wait and see th details in the Bill, that the effect of any changes will be to prevent same sex couples, singles or those in de facto relationships from pursuing surrogacy, and that this may prevent doctors from providing treatment, in breach of the doctors' obligations under section 22 of the Sex Discrimination Act. If the Bill does run foul of section 22, then it is possible that it will be overridden by that Act.

As Australian Lawyers for Human Rights' President Stephen Keim SC said:

The proposed changes appear to legislate for conduct that would otherwise be and may still be in breach of section 22 of the Sex Discrimination Act which makes it unlawful for a person to refuse to provide services to another person on the ground of the other person’s marital status (We note that s. 22 is expressly binding on the Crown in right of a State)

Another way that the Attorney could amend the Surrogacy Act to exclude same sex couples, singles and those in heterosexual relationships of less than 2 years from pursuing surrogacy would be to deny the Children's Court the ability to make parentage orders in those cases. That would solve any problem with the Sex Discrimination Act, but would not stop the surrogacies from proceeding. Doctors would still be able to treat. Traditional surrogacies involving home insemination would still proceed.

Intended parents (and the surrogate and her partner) would need to contemplate that:

  • the child would remain legally that of the surrogate and her partner;
  • remedies in the Family Court might be pursued.
In my view, surrogacies would still happen, in any event, even if criminality were to occur, as occurred before 2010 when all surrogacies were criminalised (but still happened).

Qld: Attorney says: lesbian co-mothers recognised, same sex coupes and singles still to be banned "but will not enact any new criminal offernces"

Queensland Attorney-General Jarrod Bleijie (pictured)  has now said that he is not seeking to remove the recognition for lesbian co-mothers for children born through artificial conception of some kind, and is not seeking to enact any new criminal offences concerning gay, lesbian, single or heterosexual de facto (under 2 years) intended parents from pursuing altruistic surrogacy, but is still seeking to ensure that surrogacy is only limited to married and heterosexual couples (of greater than 2 years).

What is not said is that those intending parents will not be subject to criminality. What is going to happen is that the Attorney will be seeking to amend the Surrogacy Act. It is possible that instead of making it a new criminal offence to enter into a non-eligible surrogacy arrangement, an existing criminal offence, namely entering into a commercial surrogacy arrangement could be amended, so that it would be an offence, for example, to enter into a non-eligible surrogacy arrangement. "Non-eligible" could be defined as incorporating non-eligible types of surrogacy arrangements, for example for non-eligible people, or for commerical instead of altruistic.

We won't know until the Attorney clearly gives a public commitment that intended parents his government is seeking to exclude from altruistic surrogacy will not be committiing a criminal offence by merely seeking to enter into or to offer to enter into an altruisitc surrogacy arrangement.
The Attorney's views are set out in a letter written from the Attorney's chief of staff David Fraser dated 9 August, 2012, and found here.

Lesbian co-mothers: what the Attorney said back in June

After commenting about how the Government would be amending the Surrogacy Act, the Attorney stated:

“What we are also going to deal with is the other issue that that bill dealt with and that is parentage presumptions and parentage orders. Honourable members will recall at the time that the member for Southern Downs supported two lesbian women, who had a natural birth, both having parentage orders. I make it absolutely clear that going forward the government will be amending the provisions around altruistic surrogacy and the Surrogacy Act to repeal the provisions with respect to same-sex couples, de factos of less than two years and singles. That is the policy position we took years ago when we debated the Surrogacy Act.”
The "other issue that that bill dealt with", criticised by members of the LNP as not being the right time and place to debate, was the recognition of lesbian co-parents. The opposition exlcuded the recognition of those women from its Bill, and voted against the Government Bill that provided that recognition.

Lesbian co-mothers: What Lawrence Springborg said in 2010:

Unfortunately, other reasonable concepts, including the right of same-sex parents—principally women—who have conceived a child using IVF and who wish to have a guardian recognition of that child, have also been tied up in this legislation. That issue should have been dealt with very separately, and there is a justifiable right for those people to have that recognition because those children are out there and those family relationships already exist. But the LNP will not—absolutely will not—be
supporting this bill because it is a contamination with the same-sex notions which the Labor Party has put in here. It is not only same-sex notions; it is also now opening surrogacy for singles.

What Jarrod Bleijie said in 2010:

I would like to premise my contribution to this cognate debate by stating to the House that the family unit is the originating source for how an individual interacts with others. Essentially, this ideal provides the framework and direction for how one will behave in future friendships and relationships. For children, it is proven that metacognitive social development can be intrinsically linked to the role modelling of the direct carer—in most cases the parent or parents.
This cognate debate combines the issues of altruistic surrogacy under different legislative amendments, the Surrogacy Bill 2009, introduced by the honourable Attorney-General, and the Family (Surrogacy) Bill 2009, introduced by the Deputy Leader of the Opposition. For ease of reference, particularly given the similar nature of the legislative amendments that have been proposed, I intend to address each bill
individually, beginning with the Surrogacy Bill introduced by the Bligh government.
Firstly, can I say that this bill is the start of the socialist reform agenda. They start with same-sex parenting and one begins to wonder where they will go and when they will stop. Children are not a commodity. You cannot just expect to make them and shoot them out left, right and centre for the sake of some selfish right for children. Next they will be arguing that we should have selfish rights to choose the eyes, colour and build of our children.
The bill seeks to decriminalise altruistic surrogacy and accommodates this action with the provision to legally transfer a child born as a result of altruistic surrogacy arrangements from the birth mother to the intended parents. The decriminalisation of altruistic surrogacy is a reform that I am happy to support in this House. As legislators, it is paramount that we reflect the attitude and general consensus of society. It is an unfortunate situation where some heterosexual couples are unable to naturally conceive due to medical circumstances on either partner’s behalf. The medical advancement
in the area of artificial reproductive technology should be embraced and responsibly adopted in society.
As a father of two girls and a third child on the way, I understand and appreciate the miracle and blessing one experiences when a child is born. I have a great deal of empathy for those heterosexual couples who are unfortunately unable to naturally conceive a child and I am liberally minded to legally allow these people to have an opportunity to make use of the science that can assist in this area. I support the provisions of this bill that decriminalise altruistic surrogacy, but I do not support the
extension of this legislative amendment to same-sex couples and single parents.
My brother was married once. He and his wife lost their first child to an unknown complication and tried again. One year after the birth of their second child my brother’s wife packed up and shipped out expecting, by some way of a mother’s natural affection for her baby, to take the child with her. My brother considered what was in the best interests of the child and has now been the proud single parent
of his daughter for some seven years. So I know through my brother’s experience how hard it is to be a single dad. My brother never would have chosen that for his daughter, but that is the unfortunate situation that was dealt to him. But his circumstance was different. He did not wake up one morning and decide he wanted to have a baby, expecting he would stay single. He was married and the marriage did not work, but he understood and appreciated before any of this that it was in the best interests of a child
to have a mother and a father at home. It took my brother a while to find someone else but he has now found someone else and he has a family as a dad and a stepdad.
As legislators we must consider what is in the best interests of the child. The Family (Surrogacy) Bill 2009, introduced by the honourable Deputy Leader of the Opposition, strikes a balance between protecting the rights of the child and introducing social reform into this House. The key difference between the government and the opposition’s legislative amendment bill introduced into this House is the recognition of the right of a child to have both a male and a female role model as parents.
There are several lobby groups which have no doubt contacted all members with respect to these bills. Unfortunately, the government has coupled the decriminalisation of altruistic surrogacy with samesex parenting issues. These are two very separate and distinct debates and the opposition recognises this fact. Again, this is another major decision not taken to the people of Queensland at the state election. And we wonder why the government did not take this issue to the election. Perhaps it has something to do with the fact that in the latest Galaxy poll 86 per cent of Australians believe that what the government is doing tonight is not in the best interests of children.
The Bligh government’s own legislative agenda on parenting issues can be described as inconsistent at best. This is another example of a crisis-management government without a strong and consistent policy platform to govern for all of Queensland. Only last year we saw legislation introduced regarding adoption that excluded same-sex couples and single parents. To save face and restore its left wing credentials, the government has introduced this legislation, which decriminalises altruistic
surrogacy, including for same-sex couples and single parents. So to clarify the government’s position without all the spin, it is all right for same-sex couples and single parents to explore altruistic surrogacy for parenting options, but these same people are not permitted under state law—only introduced into this House and passed by his House last year—to adopt. For the benefit of the people of Queensland, can the Attorney-General explain to me the difference for the child in each of these cases? In his second reading speech the Attorney-General stated—

This government is committed to the freedom and autonomy of the individual.

Of course, that is when it suits its argument of the day. That was not the case in the Adoption Bill

2009 and more recently in the Criminal Organisation Bill 2009. The government cloaks itself as a party of civil liberties, but only when it suits it. In this case, the government’s bill is nothing more than cheap political opportunism to cosy up to the Left.
To me, this issue is quite clear. There is enough anecdotal evidence to justify the concern that children who do not have a male and female role model as parents have an increased risk of developing identity, social and behavioural issues in the future. The subject of same-sex parenting is and should be a separate debate. I personally believe that all unborn children have a fundamental right to have a male role model as a father and a female role model as a mother.
With regard to the family unit as a social construct, I would like to make the following key points. Particular concern has been documented by many researchers regarding children who grow up in single-parent families. Sarah Wise from the Australian Institute of Family Studies released a research paper titled

Family structure, child outcomes and environmental mediators in January 2003.

This paper looked at several issues facing the family unit and the effect of family diversity, namely parental role modelling and single and same-sex parent families in modern society. The family structure is considered paramount in the long-term development of a child. Family factors that significantly contribute to this development include family cohesion, sibling relationships, parental mental health and
parental style and discipline methods.
Another academic article on this issue was written by Mr Bill Muehlenberg and published in the

National Observer

in 2002 titled The case for the two-parent family. Mr Muehlenberg states—

A study of Australian primary school children from three family types (married heterosexual couples, cohabitating heterosexual couples and homosexual couples) found that in every area of educational endeavour (language, mathematics, social studies, sport, class work, sociability and popularity, and attitudes to learning), children from married heterosexual couples performed better than the other two groups.

The study concludes with these words—

Married couples seem to offer the best environment for a child’s social and educational development.

Moreover, it seems that evidence is mounting to suggest that the presence of fathers strongly impacts on the educational performance and intelligence of children. While some people may argue that any anecdotal evidence to support an argument on this subject is futile, there is a lack of academic studies on the effects of same-sex parenting on children due to the fact that this issue is one that is relatively new. There have, however, been many studies on the effects on a child on the deprivation of a
mother or father in the case of a single parent relationship. These studies and their findings should also be considered as relevant for studying the effect on a child that is raised by homosexual parents.
Professor Lyn Wardle wrote in her article published in 1997 that even studies in favour of homosexual parenting acknowledge some data that illustrates that homosexual parenting may be harmful. Studies in the United States have shown an increase of frequency of occurrences of anxiety, sadness, hostility, defensiveness and inhibitions amongst children of homosexual parents, particularly amongst boys. While I personally know and have nothing against homosexual people—in fact have some friends—I am deeply concerned about the rights of a child to have heterosexual parents. This fundamental right is denied with this legislation. The interests of the child should be paramount when laws to this effect are considered.
Like most members of this great place, today I received a letter from the Most Reverend John Bathersby. I quote from that letter a direct quote from Pope Benedict made two days ago on 8 February.
The direct quote from the letter from the Pope says—

The best chance children have of developing properly is found in a family because of the uniquely complementary roles played by the husband and wife...they need to dwell, grow and live with both parents, because the maternal and paternal figures complement one another in the education of children and the formation of their personality and identity. It is important then, that
everything possible is done to ensure they grow up in a united and stable family.

I note those opposite will be voting by way of conscience. Can I suggest to those members opposite who profess to be followers of the Pope that they read the words of the Pope first and then follow their conscience. For ease of reference for those members opposite I table a copy of the letter from the Reverend John Bathersby. I hope those opposite have a chance to read it prior to voting on this
piece of leislation.

I have been contacted by many constituents with respect to this issue and the respective

legislation introduced by the government and the opposition. The general consensus from those who have contacted my office is for a far more conservative approach than what the government has offered this parliament. In fact, the only lobbying I had to support the government’s bill was numerous form letters, standard letters, all being machined out of the same place, all having spelt my name the same way incorrectly on each of the 20 letters.
The opposition’s legislation is far more balanced. The social engineering the Bligh government is forcing on the Queensland electorate has been met with widespread criticism. The Family (Surrogacy) Bill introduced by the honourable Deputy Leader of the Opposition achieves the objectives of the bipartisan committee’s recommendations. The key recommendations included that altruistic surrogacy be decriminalised in Queensland subject to a regulatory framework; the government’s role should include implementing legislative reform, including a mechanism to transfer legal parentage; altruistic surrogacy arrangements should be unenforceable under state law; births are reregistered after the transfer of legal parentage for a child; and children have access to the original birth certificates when they turn 18 years of age. There was no mention of same-sex couples or single parents in the report’s recommendations. The fact that this omission from the recommendations of the committee’s report was disregarded again questions the role and structure of the committee system in this House and the accountability of government in Queensland.
As the Premier indicated in her contribution today, the reality with modern science is that we can as legislators assist couples such as, and I will use the example given by the Premier, Michael and Kirsty. Kirsty was not able to carry children to full term. I cannot imagine what that would be like as my wife has been blessed with uncomplicated pregnancies. Under the opposition’s bill Michael and Kirsty
would have access to altruistic surrogacy. This legislation would assist Michael and Kirsty to finally have the family that they have been so longing for. I support this because Michael and Kirsty, in the Premier’s definition, are a male and a female naturally wanting to have children but because of some medical condition cannot. Why could the Premier not stop there and cover the couples who genuinely want
children but for some medical assessment cannot?
The bill goes another step and allows singles and same-sex couples to use surrogacy. With great respect to the Premier’s contribution, her arguments are flawed. Unlike Michael and Kirsty, two men and two women are not naturally designed to procreate. The Premier claims that all this is happening in our electorates as we speak. That is what the Premier said this afternoon. I can say to the Premier that I can all but guarantee her that there are not two males in my electorate sitting in a doctor’s chair being artificially inseminated as I speak. Men cannot conceive and carry children. It is commonsense. The Premier brings into the fray the two women who can conceive; but men cannot. It was a tricky way to do it. As I said, the argument is quite flawed.
I always enjoy listening to the member for Chatsworth in this place—today was no exception with his absurd contribution. He trivialised this matter by suggesting that a child would much rather live with same-sex parents than in an environment where the father comes home and bashes the wife every night. Those opposite denied it when the member for Gympie mentioned that in his speech tonight, but they were the words from the member for Chatsworth: that if one asked a young child whether they
would rather live with a homosexual couple or in a situation where the father is verbally or physically abusive to the mother that they would choose the homosexual relationship. Any child in Queensland or Australia would, of course, want out of that situation. Surely, though, the member is not suggesting that we take away the child from the mother who is the victim of that relationship and place the child in the
care of a same-sex couple. I would suggest that what is in the best interests of the child would be to throw the father in jail and let the child and mother live in peace. Or was the honourable member suggesting that those living in same-sex environments do not squabble and somehow offer a better family environment than a heterosexual couple?
The member for Keppel and other honourable members opposite have linked our opposition to single parents with single mothers who have lost their partner through war or for whatever other reason. I submit that these people did not have a choice. We are not suggesting that single parents make bad parents. No-one has said that today in this place. To say in this place otherwise is offensive, particularly for those single parents who have not had a choice with respect to the single relationship, be it the result of death or some other reason.
We need to ensure that as legislators we do what we can to give every child the best start in life, which is with a mother and a father as parental role models. People should not flippantly make babies the guinea pigs of Labor’s social experiment. I condemn the Surrogacy Bill that was introduced by the Attorney-General. It does not take into consideration the best interests of the child. However, I do commend the Family (Surrogacy) Bill introduced by the opposition, which will allow heterosexual couples with genuine medical reasons, not social ones, to have children. Having children is not a right; it is a responsibility. We do not have the right to force this upon children. I pray that the conscience of those members opposite is far stronger than any fear factor enlisted by the state Premier. (emphasis added)

Lesbian co-mothers: What other LNP members said in 2010

Mrs Menkens (Burdekin, LNP):

Labor’s bill also includes a second issue of same-sex parentage and
recognition for lesbian couples where the child is conceived through ART, artificial reproductive technology. This should be a separate issue. It is an important issue and it does need to be addressed, but the debate that I am focusing on today is that of surrogacy.

Following on from this there was a review by the Department of Justice and Attorney-General which proposed amendments to the Status of Children Act 1978 to extend the parenting presumption to a lesbian partner of a birth mother when the birth mother has undergone a fertilisation procedure to conceive the child with the consent of her lesbian partner. The Queensland government also announced that it would release for public comment a Queensland model for surrogacy that would provide the
framework for legislation to implement the surrogacy reforms.
The report by the committee into altruistic surrogacy noted that the issue of same-sex parents had much wider implications for parents than surrogacy alone, and that relates to the legal status of children being cared for by same-sex parents. Recommendation 20 of the report states that the opposition bill achieves its objectives by implementing a regime for altruistic surrogacy and does not seek to combine together other issues of single and same-sex parenting, and nor does it seek to deal with matters that were not covered in detail during the extensive parliamentary inquiry on this issue....

The LNP announced that we believe the changes to altruistic surrogacy laws should be voted upon separately to any proposal to extend these laws to same-sex parenting. The two issues are worthy of two entirely separate debates and votes, as they involve separate value judgements. The state government has clearly indicated that it will not agree that proposed laws designed for hopeful mothers and fathers should not be tied to the passage of proposed laws pertaining to same-sex parenting. As the  member for Southern Downs said—
... legislation covering altruistic surrogacy should not be lost in a debate on same-sex parenting.

Lesbian co-mothers: What Mr Fraser said on 9 August 2012

"The 2010 amendments to the S[tatus ]o[f ]C[hildren] Act were supported by the Liberal National Party at the time."

Comment: As seen above, this is not accurate. The amendments were opposed by the LNP as being part of the Government's Bill, which it opposed. The amendments to the Status of Children Act in 2010 were clearly contained in the Surrogacy Bill, clause 107.

Back to Mr Fraser:

"The Queensland Government is not currently intending to amend or repeal any of the parentage presumptions under the S[tatus ]o[f ]C[hildren] Act."

Comment: This is to be welcomed. Lesbian co-mothers will continue to be recognised in Queensland, as they are in every other State and Territory and at the Commonwealth level.

Surrogacy: what the Attorney said back in June

As I previously posted, the Attorney told the House:

“The second issue is surrogacy. In this debate and in the correspondence that the government received with regard to this debate there was much talk about mixing these issues with surrogacy. I can also advise the House tonight that the government will be changing the surrogacy laws in the future. We will be introducing amendments similar to those introduced by the honourable member for Southern Downs when he was the shadow minister. We will be repealing the provisions in the Surrogacy Act that deal with same-sex couples, de factos of less than two years and singles. That was a clear commitment given many years ago when that original debate took place. The government will proceed to amend the Surrogacy Act.” (emphasis added)

Surrogacy: what Lawrence Springborg proposed in his 2009 Bill

This is what I posted previously:

 Mr Springborg’s Bill provided that only those people who have entered into an eligible surrogacy arrangement could proceed and that those who entered into a surrogacy arrangement that wasn’t an eligible surrogacy arrangement committed an offence punishable by up to 3 years imprisonment. Eligibility was defined as the intended parents either being married or in a heterosexual de facto relationship of not less than 2 years.

This is what is contained in the explanatory notes to Mr Springborg's Bill:

"Exemption from operation of

Anti-Discrimination Act 1991

Clause 6 of the Bill exempts the Family (Surrogacy) Act 2009 from the operation of the Anti-Discrimination Act 1991

the effect being that discrimination on the basis of the attributes in

that Act will be lawful, particularly in relation to who is an eligible couple for inclusion in the altruistic surrogacy process.
Overriding the

Anti-Discrimination Act 1991 in this way clearly breaches fundamental legislative

principles. However, the breach is justified because the imposition of discriminatory processes,
particularly in relation to the paramount principles of the best interests of the child must be
maintained above the rights of any person wishing participate in the altruistic surrogacy process,
including any rights they may otherwise have under the

Anti-Discrimination Act 1991 not to
experience discrimination." (emphasis added)

This is what is said in clause 9(1) and (2) of Mr Springborg's Bill:

"9 Meaning of
intended parents and eligible couple
(1) The
intended parents are the eligible couple who agree to the
matter mentioned in section 7(1)(b).
(2) An
eligible couple, for an eligible surrogacy arrangement,
(a) a married couple; or
(b) a de facto couple comprising a male de facto partner and
a female de facto partner who, when the eligible
surrogacy arrangement was made, have lived together in
a de facto relationship for at least 2 years."

In other words, if you are in a same sex relationship, or are single or are in a heterosexual de facto relationship of less than 2 years, you are not eligible.

Mr Springborg's Bill made it a criminal offence, punishable by up to 3 years jail to enter into or offer to enter into a non-eligible surrogacy arrangement (in other words, the intended parents were a gay couple, a lesbian couple, single or a heterosexual de facto couple of less than 2 years). The Bill's provision speaks for itself:

Clause 56:

"Surrogacy arrangements other than eligible surrogacy
arrangements prohibited
A person must not enter into or offer to enter into a surrogacy
arrangement that is not an eligible surrogacy arrangement.
Maximum penalty—100 penalty units or 3 years

This is what  Lawrence Springborg told the House, as I blogged back in 2010:

  • Labor’s loopy, loony, lefty ideas really started to come to the fore. This is some sort of pay-off for those members of the Left who were concerned about the government not going far enough on the likes of abortion reform in Queensland. They got their quid pro quo with some loopy, loony, lefty position when it comes to parenting in Queensland.
  • Let us look at what the Family Council of Queensland said this morning in an open letter to state
    MPs. It said—
    The Bill—the Surrogacy Bill 2009—should have been about altruistic surrogacy—that is, non-commercial surrogacy—as a ‘last resort’ for an infertile couple. But no, under that respectable cloak this bill smuggles in an oppressive proposal to deprive children of their birthright—their fundamental right to enter the world, as all of us did, with both a mother and a father.
    By what authority does any government permit adults to deny a child her primal right and most profound emotional need: to have both a Mum and a Dad in her life?
    It goes on further to say that under this bill a homosexual couple can arrange to bring a baby girl into the world with the full intention of denying that child even the possibility of a mother in her life. The bill will help a single woman to obtain a surrogate baby boy, condemning that baby to live without even the possibility of a father.
    We know that in the community relationships are not absolutely ideal. We know that in the community certain circumstances happen. We also know that in the community there have been samesex people, principally lesbian women, who have taken the opportunity to have a child. That has been a case of them utilising the opportunities open to them. There is a big difference between that and the state actually legislating to allow it to be part of acceptable families in Queensland. At the time [altruistic surrogacy] was very much couched in the notion of being extremely limited—limited for medical purposes. There was no mention whatsoever of the social desires of those people who, for all intents and purposes, cannot have children without that sort of intervention.
  • We will be opposing the government bill absolutely categorically when it comes to those components of it. Those components unfortunately contaminate something that should be given the worthwhile consideration of this parliament—that is, non-commercial surrogacy in the way that it was originally couched and that was in limited terms for medical reasons and not for social reasons....
  • the LNP will not—absolutely will not—be
    supporting this bill because it is a contamination with the same-sex notions which the Labor Party has put in here.
  • It is also now opening surrogacy for singles. We know full well that children do better in an environment where they have a mum and a dad. We know that.
  • However, this parliament is seeking to legislate some sort of socialist ideology that says, ‘We will
    deliberately facilitate single-parent families. We will deliberately facilitate same-sex families.’
  • There are different desires for those adults. Some of them—heterosexual couples who are either
    de facto or married—may have been trying to have children for some time and for a medical or genetic reason they cannot have a child and they might not be able to adopt a child. That is a very clear medical reason for that situation to happen. However, now it is a broad social qualification as well for those people who, because of lifestyle, would not normally expect to have a child. With this legislation, they can say, ‘Okay, we’re going to do that.’ We have basically now got designer families. This is about designer families and this is about satisfying the desires of adults. This is not about the children.
  • Anyone who says that this is about homophobia is absolutely and completely wrong—absolutely
    and completely wrong—because you cannot couch this in the terms of someone’s actual sexuality. This is not a mainstream issue. This is not a mainstream issue for the gay community.
  • There is a fundamental difference between the Labor Party and the LNP when it comes to these views, and one that we do not support which the Labor Party does support is the notion of the state
    actively intervening and actually facilitating the notion of gay parenting through a surrogacy arrangement.
  • Children desire a mum and a dad. That is the simple reality. We should not be seeking to deny that.
  • The bill is so contaminated by your loopy, loony, leftie policies that it is absolutely impossible to support it. If members opposite disaggregate the bill and take those particular sections out, we will support that section. We will support noncommercial surrogacy for heterosexual couples, but we are not going to support something that is so utterly and completely contaminated.
What other LNP MP's then said

Ray Hopper (LNP, Condamine) said:

  • I accept that same-sex couples may choose to live together in ways different to others, but I do not accept the exploitation of children, assuming them to be a commodity which may be used by same-sex couples so that they can feel good.
  • One of them is so that same-sex couples can feel good, to gain popularity, and in doing so reduce children to the status of pets which can be acquired for our comfort and pleasure.
  • Let us look at the first five years of a child’s life. How would it be if a little boy had two mothers?
    How do they take him to a public toilet when they go on a so-called family outing? They will have to go to the ladies toilet, won’t they?
  • How dare we try to break down the morals of a family by agreeing to this legislation?

  • Dr Alexander Douglas (LNP, Gaven) said:

    It stands to reason that homosexual males place an
    unreasonable burden on the system that makes surrogacy a sound concept. They legally cannot be mothers so they should not be included. That said, we need to get over it and get used to it. We need to move on. Let medical facts guide your decision. I am sorry to say that homosexual males must be treated as a separate group and for medical reasons alone must not be included in this bill.

    Dr Mark Robinson (Cleveland, LNP):

    Under this bill, for example, two men can create a situation where a baby will live their whole life without a mother, just because they want to call a child their own. The mother would cease to exist in law for the child obtained by a single man or homosexual couple. The father would cease to exist in law for the child obtained by a single woman or lesbian couple. The natural bonds of family and belonging would be destroyed by the legal implications of this bill. It is an absurd proposition that two men or two women are just the same from a child’s perspective as a real mother and father.

    Jan Stuckey (Currumbin, LNP):

    Homosexuality is legal in Australia and it is an individual’s choice to partner with
    whomever he or she wishes. However, if a person decides to partner with someone the same sex as themselves, surely they acknowledge there is no physical way they can create a baby biologically. These are not fertility issues; they are life choice issues and should be viewed in that vein. I do not support surrogacy for social infertility or lifestyle reasons.

    What Mr Fraser said on 9 August 2012

    On 21 June, 2012, the Attorney-General announced in the Legislative Assembly that the Queensland Government will introduce amendments to the Surrogacy Act 2010... to remove the eligibility of same-sex couples, de facto couples who have been together for less than two years and singles to be an intended parent under a parentage order....The proposed amendments will preserve the legal rights of all parties to existing surrogacy arrangements but will not enact any new criminal offences." (emphasis added)

    According to the ABC, I am an activist! I always saw myself as a lawyer.

    Brisbane marriage equality rally

    Yesterday I had the privilege to speak at the marriage equality rally in Brisbane, eight years after the Howard government, with Labor support, amended the Marriage Act to exclude same sex couples. Because it was the middle of the day, I was sun smart, wearing an Akubra. The funniest thing was that several people did not recognise me because of my hat! One guy, who was also wearing an Akubra, gave me the  thumbs up when he saw me!

    I was given the job of being the first speaker, and asked to speak for no more than 5 minutes.

    As the first speaker, I thought that my job would be to gee up the crowd, and have some calls to action. So I tried to do this.

    I said that as a person growing up in Australia, I had always considered that we were all equal, and as a lawyer that a fundamental principle was that we all were equal under the law.

    I said that the changes to the Marriage Act 8 years ago meant that the Government could decide whether or not we were able to marry the person we loved, depending on our sexuality.

    I said that the Newman Government has similarly proposed to change Queensland's surrogacy laws, so that for the first time in our history a right was going to be taken away, and that this was, in the words of a client of mine, the "government playing God": determining who can and who can't be a parent, simply decided by relationship status and sexuality. Picking winners and losers, by an arbitrary method.

                                                  With Mark Morein

    I said that if we as a society are to be equal, then we all have the right to be equal and we should be able to marry the person we love, and we should be able to have children without interference from government.

                        Healthy Communities President, Mark Morein

    I challenged the crowd to take action about marriage equality- asking each and every one present to contact their Federal MP and let the MP know about how they felt about marriage equality. If they hadn't done so, why not?

    I also challenged the crowd to take action about the proposed surrogacy changes, and to let their State MP know how they felt. Again, if they hadn't done so, why not?
                              Brisbane Pride President, Deeje Hancock

    I said that politicians listen to numbers, and the more people who let their MP's know their feelings, the better.

    I encouraged those present to sign the petition that called for the proposals to amend surrogacy laws in Queensland to be scrapped, but reminding them that they can only sign once.

                                         We would not have been amused.

    Wednesday, 8 August 2012

    World first decision about what is conception made by Qld judge

    Queensland District Court Judge Leanne Clare, SC, has made legal history today by ruling in a world first that conception is the act of becoming pregnant, not the act of fertilisation.

    For natural conception, there is no difference, but with IVF there can be a significant difference. An embryo can be created from egg and sperm and then be frozen, sometimes for years, before being implanted in the mother to be to enable her to become pregnant.

    The significance in Queensland is that the Surrogacy Act (Qld) requires a surrogacy arrangement to be signed "before the child was conceived". If a frozen embryo were used, and fertilisation were conception, then the surrogacy arrangement was almost certainly signed after the child was conceived, meaning that an order transferring parentage from the surrogate to the intended parents could not be made.

    Similarly in New South Wales, there is a requirement for the surrogacy arrangement to be a "pre-conception" surrogacy arrangement. Neither in Queensland nor in New South Wales is "conceived" nor "conception" defined in the legislation. There has therefore been doubt about what approach judges would take, given the consequences.

    In the case before Judge Clare, which cannot be named due to privacy requirements, the embryo was created in 2008, the surrogacy arrangement was signed in April 2011, and implantation occurred in July 2011.

    Judge Clare stated:

    The meaning of the term “conceived” as used in s 22(2) (e) (iv) [ of the Surrogacy Act] is critical to the court’s jurisdiction in this case.  This is because the embryo was created years before the surrogacy arrangement, then frozen and not implanted in the uterus until months after the written arrangement was settled.  The question now is whether the reference to pre conception as the cut off point in s 22(2)(e)(iv) means before the creation of the embryo or simply any time before the transformation of the embryo into a pregnancy.  If it were an earlier point in time, the court would have no power to make a parentage order for [the child].
    What does “conceived” mean?
    The act offers no definition.  It seems this is the first time a court has been asked to interpret s22 (2) (e) (iv).  Nonetheless, the answer seems obvious.  Whatever approach to statutory interpretation is applied, whether it be to view “conceive” as a technical term, or it its everyday meaning, or the meaning that best advances the purposes of the Act, the result is the same.  The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body.
    The everyday meaning
    The phrase “conceived a child” is in common usage.  It is commonly understood to refer to an actual pregnancy.
    One must examine the context of the provision[1].  This is a provision about surrogacy.  As expressed in s.5, the purpose of the Act is to safeguard the interests of the child and regulate surrogacy agreements.  There is an underlying intention to protect the birth mother from duress to surrender her child.  Such issues only emerge after a pregnancy occurs.  The Act applies to all forms of conception.  The use of in vitro fertilisation is now widespread.  In my experience when lay people talk about IVF treatments they tend to reserve the term “conceive” for the circumstance where an embryo actually takes to the uterus and the woman succeeds in becoming pregnant as distinct from the procedure of implantation.  I am satisfied that in the ordinary everyday language of the community, the term “conceive a child” means more than what can be achieved in a test tube and refers to the commencement of a pregnancy in a woman’s body.  This is consistent with the current editions of both the Oxford English dictionary and the Macquarie Dictionary.  They define “conceive” as, inter alia. “to become pregnant”.  The former publication also defines “conceived”, the adjective, as “brought into embryonic existence in the womb”.
    To construe the cut off point in s 22 (2) (e) (iv) as the point of pregnancy (and therefore after fertilisation) is also consistent with the definition of “surrogacy arrangement” in s 7 of the Act.
    The (intended mother’s) eggs were fertilised and preserved before she underwent the emergency procedure that saved her life but left her unable to carry her own children.  This was before the Surrogacy Act had come into existence.  It was therefore impossible for her to enter into an arrangement under the Act before the embryos were created.  The same situation is readily foreseeable for any woman undergoing emergency procedures even after the commencement of the Act.  A woman desirous of having a baby, would little hope of securing a compliant surrogacy arrangement in advance of an emergency hysterectomy, given the requirements for the identification of a willing surrogate, proper counselling and legal advice with time to reflect on all of the implications.  The Act is intended to help such people in genuine need of surrogacy.
    Therefore to interpret the preconception condition as a condition to be satisfied before fertilisation would not only be contrary to the ordinary language of the provisions, it would frustrate the underlying intention of the Act.  There is no reason to reach beyond the common language for the interpretation of s 22 (2) (e) (iv).
    The expert evidence
    The Court has an affidavit from … an obstetrician and gynaecologist involved in the case, as well as various definitions from medical dictionaries.  Of course the construction of the statute is a matter for the court, not doctors, but the expert evidence of the biological processes is relevant to that task.  According to [the doctor]:
    “The creation of the embryos in 2008 was an act of fertilization.  Fertilization is a step on the path way to conception.  Many eggs fertilize but many fewer pregnancies are conceived.  The act of conception or the act of conceiving the pregnancy was the actual embryo transfer and the subsequent implantation of that embryo into the uterus of [the birth mother]  over the next couple of days with the eventual positive pregnancy test approximately two weeks after …July 2011… The act of conceiving in this case is viewed as the act of achieving a pregnancy.  Therefore, I view the conception of [the child] as occurring from the embryo transfer on … July 2011.”
    [The doctor]’s professional distinction between the processes of fertilisation and conception is consistent with the common understanding of what it means to conceive a child.  The same can be said of the preponderance of definitions from the medical dictionaries cited.
    Despite extensive research, the parties have found only one case in which the meaning of conception was considered.  This is the English case of R ( John Smeaton on behalf of the Society for the Protection of Unborn children) v the Secretary of State for Health.[2]  It was about the morning after pill and therefore considered conception through sexual intercourse rather than scientific intervention.
    [Disclosure: I appeared in the case for the birth mother.]

    Sunday, 5 August 2012

    How Tasmania's same sex marriage proposal could affect Newman's surrogacy proposal

    If Tasmania allows same sex marriage, will those marriages be recognised interstate? Who knows, but in all probability they would be- because of the principle of comity between the States. This is based on a common law doctrine to recognise actions taken in another jurisdiction, such as judgments and laws, and marriages.

     This has been seen in the US, where unanimously the highest appeals court in Maryland has recognised a same sex marriage from California to allow the couple to get divorced in Maryland, even though Maryland did not recognise same sex marriage:

    Under the common law doctrine of comity, a valid out-of-state marriage will be recognized in Maryland, for purposes of application of its domestic divorce laws, if it is not statutorily prohibited or “repugnant” to Maryland public policy. The “repugnancy” threshold is very high. Maryland statutes do not treat as void expressly foreign same-sex marriages. Rather, a review of Maryland statutes and executive branch policies demonstrates that recognizing valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the parties’ valid California same-sex marriage is cognizable in this State for purposes of adjudicating a divorce complaint.

    This could have enormous implications, because many of our States' discriminatory laws are based on a couple being married. In Queensland, for example, the Government is proposing that surrogacy be open only to those who are married or in heterosexual de facto relationships of greater than 2 years. If a Queensland gay or lesbian couple were to travel to Tasmania, get married, then they might be able to seek surrogacy in Queensland.

    Those same sex couples who married overseas wouldn't have the same luck, because the 2004 amendments to the Marriage Act  specifically prevented their marriages from being recognised.

    Tasmania to seek to have same sex marriage

    Tasmanian Premier Lara Giddins has announced that Labor will be seeking that Tasmania legislate for same sex marriage. With the support of the Greens, this will likely pass the Lower House, but whether it passes the Upper House, controlled by independents, is another matter.

    Nevertheless, the Premier is expecting a tourism boom, as gay couples seek to marry in the Apple Isle.

    One commentator, at least, has said that any proposed laws will be doomed as they will fail a constitutional challenge. While there is a risk, my view is that the laws should survive a risk. This argument was put as long ago as 2008, covered by my blog, by Professor George Williams.

    Here goes:

    1. The States can legislate about anything.
    2. The Commonwealth Parliament can only legislate for topics given to it under the Commonwealth Constitution, for example, the corporations power, or the external affairs power. There is a power, for example,  for the Commonwealth to legislate for marriage and divorce.
    3. Just because a power is given to the Commonwealth to legislate, does not compel it to do so, and does not mean that any laws it passes necessarily "cover the field".
    4. If there is an inconsistency between a valid State law and a valid Commonwealth law, the latter prevails, to the extent of the inconsistency.
    5. Therefore, if the Commonwealth law "covers the field" about marriage, then the Commonwealth law prevails over the State law.
    6. Therefore, that argument goes, because the Marriage Act says that marriage is only between a man and a woman, that it therefore covers the field about what is marriage, and would therefore override any State law allowing same sex marriage.
    7. However, as Professor George Williams points out, until 2004 the Marriage Act did not define the sexuality of the two parties. Until 2004 it was possible, in theory, for a same sex marriage to have occurred.
    8. Then in 2004 the Howard Government, with Labor support, amended the Marriage Act so that: "'marriage' means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."
    9. In other words, as Professor Williams points out, the Commonwealth no longer covered the field when it came to same sex marriage, allowing the States to legislate about same sex marriage if they desired.

    Can a same sex couple get divorced?

    It is unclear if a couple married under such a law could be divorced under the Family Law Act. If there were a ruling from the High Court that the Tasmanian laws were valid, there should be nothing to prevent such a divorce proceeding.

    Thursday, 2 August 2012

    Family Court decides international surrogacy test case

    Justice Ryan of the Family Court has handed down a decision in the test case concerning international surrogacy, concerning a husband, Mr Ellison, and wife, Ms Solano, who brought twins home from Thailand, after engaging in commercial surrogacy there. The surrogate, who had relinquished the children, was paid $7350.

    Justice Ryan has highlighted the need for intended parents to obtain good, experienced legal and migration advice before the intended parents undertake international commercial surrogacy. Her Honour said:

    There are many and varied paths to parenthood. Where the path involves an international surrogacy arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.

    The case illustrates the potential legal minefield facing intended parents who undertake surrogacy overseas, and how cases can turn on seemingly minor information that can make a significant difference in the outcome.

    The couple were from Queensland, where like NSW and the ACT it is an offence to engage in international commercial surrogacy.

    The children were conceived from sperm of Mr Ellison, and an egg from an anonymous egg donor; carried by a Thai surrogate, who in turn was living with a man.

    Mr Ellison and the surrogate were shown on the Thai birth certificate as the parents of the child.

    Her Honour made parenting orders in favour of Mr Ellison and Ms Solano.

    Two of the key features of the case, called Ellison and Karnchanit, were:
    • unusually for one of these cases, Justice Ryan appointed an independent children's lawyer, and also obtained the intervention of the Human Rights Commission.
    • a lack of evidence from the intended parents, so that initially at least there was no evidence of the nature of the surrogacy arrangement, nor knowledge that the surrogate was in a relationship. It had been assumed that the surrogate was single. As it turns out, the surrogate had not been living with the man at the time of the child being conceived, a significant point.
    Her Honour stated:

    (W)hen the hearing started there was a paucity of evidence presented by the applicants in support of their application. For example, the Court did not have certified copies of the children’s original birth certificates. No evidence was adduced from the clinic in relation to their conception or the hospital in relation to their birth. The asserted agreement with the birth mother was not in evidence and neither she nor the children’s biological mother was informed about this hearing. Although the Court requested that the applicants adduce expert evidence in relation to the law in Thailand, this was not forthcoming. In short, the evidence was so poor it was difficult to see how the applicants’ unchallenged evidence provided an evidentiary foundation for the orders they sought.

    Key guidelines

    Following submissions by the independent children's lawyer and the Human Rights Commission, Justice Ryan laid out guidelines as to how future international surrogacy cases are to be run:

    1. An Independent Children’s Lawyer is appointed to represent the child’s interests.
    2. Affidavit evidence of the applicant(s) and the birth mother comprising:

      • their personal circumstances, in particular the circumstances at the time the procedure took place;
      • their circumstances leading up to the surrogacy agreement and of the procedure itself;
      3.the circumstances after the birth of the child and subsequent arrangements for the care of the child.
      4.Independent evidence regarding the identification of the child including:
        • the surrogacy contract/agreement entered into between the persons seeking the parenting orders and the clinic and/or surrogate mother;
        • a certified copy of the child’s birth certificate, and, if not in English, a translation accompanied by an affidavit of the person making the translation verifying that it is a correct translation and setting out the translator’s full name, address and qualifications;
        • parentage testing in accordance with the Family Law Regulations to ascertain whether that the child is the biological child of the person/s seeking the parenting orders;
        • evidence of Australian citizenship of the child if citizenship has been granted.
        5. Independent evidence with respect to the surrogate birth mother. This may be obtained by a family consultant or an independent lawyer, including:
        1. confirmation that legal advice and counselling were provided to the surrogate mother prior to entering into the surrogacy arrangement;
        2. confirmation that the surrogacy arrangement was entered into before the child was conceived;

        1. confirmation that the surrogacy arrangement was made with the informed consent of the surrogate mother;
        1. evidence after the birth of the child of the surrogate mother’s views about the orders sought and what relationship, if any, she proposes with the child;
        2. if the child has been granted a visa to enter Australia, evidence of participation by the surrogate mother in an interview with immigration officials prior to the grant of the visa, and the views expressed by her during this interview.
        6. The preparation of a Family Report which addresses:
        1. the nature of the child’s relationship with the persons seeking parenting orders;
        2. the effect on the child of changing their circumstances;

        1. an assessment of the persons seeking the parenting orders capacity and commitment to the long-term welfare of the child;
        1. the persons seeking the parenting orders’ capacity to promote the child’s connection to their country of birth’s culture including but not limited to their birth mother;
        2. advice in relation to issues which may arise concerning the child’s identity and how those issues are best managed;
        3. the views of the birth mother, in particular her consent to the proposed parenting orders, and other matters with respect to the birth mother referred to above.
        7. Other evidence including:
        1. evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to surrogacy arrangements;
        2. evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to the rights of the birth mother, and if applicable, of her husband or de facto partner.

        Comment on the Guidelines

        The comprehensive guidelines will mean, in practice that intended parents will if at all possible avoid going to the Family Court to obtain orders, because, aside from the risk of being reported to authorities if they have come from Queensland, NSW or the ACT (and engaged in commercial surrogacy overseas, because in those jurisdictions to do is an offence), although her Honour did not do so, the approach taken by her Honour will be expensive and difficult.

        In reality, intended parents may be more inclined to avoid Thailand and go, instead, to India or the US. It is very rare for Australian intended parents to seek Family Court orders when having undertaken surrogacy in India or the US.

        The requirement for the DNA testing to comply with the Family Law Regulations will impose a burden on intended parents who may have to be tested twice.

        The requirement for the family report writer or independent children's lawyer to obtain evidence about the surrogate will necessarily mean that the possibly substantial costs of that process will have to be met by the intended parents.

        As this is a single judge decision, the guidelines are not binding on other judges, but are likely to be adopted in practice, and should be adhered to if there is a need to bring an application of this kind to court.

        Who is a parent?

        The case also illustrates the differences of:
        • being an intended parent, as both Mr Ellison and Ms Solano were;
        • being a biological parent, as Mr Ellison and the anonymous egg donor were;
        • being the legal parent.
        Didn't DNA fix it?

        A DNA test has been undertaken, to comply with the requirements of the Department of Immigration and Citizenship, which showed a 99.99999996% probability that Mr Ellison is the children’s biological father.

        The problem was that the report did not comply with the Family Law Regulations, which meant that at first blush it was inadmissible. An order by her Honour for a second, admissible, report was not complied with.

        Ultimately her Honour allowed the report to be admitted.

        Wasn't it enough that Mr Ellison was shown as the father on the Thai birth certificate?

        In a word: no.

        A Thai lawyer addressed whether pursuant to Thai law, absent an order, Mr Ellison had parental authority. The effect of the expert’s evidence is that there are no surrogacy specific laws in Thailand. Surrogacy issues thus, are governed by the Civil Commercial Code. According to the Code, a child born of an unmarried woman is deemed to be her legitimate child unless otherwise provided by law. The effect of the Code is that the birth mother has sole legal custody of the children.

        However, another provision of the Code provides that “a child born of parents who are not married to each other is legitimised by the subsequent marriage of the parents, or by registration made on application by the father, or by a judgment of the Court”. Thus, Mr Ellison is entitled to apply for registration and/or petition a Thai court “for legitimisation of his children”. An application for registration requires both the mother and children’s consent. Where the child is too young to consent (under the age of 7 years) a father must obtain the Court’s consent on the child’s behalf. It is explained by the expert, that in this case “since the children are too young to give consent, the legitimisation must be effected by judgment of the Family Court [of Thailand]”.

        The effect of a successful application by Mr Ellison in Thailand for legitimisation of the children would be to grant him parental power. His parental rights would be shared equally with the birth mother in relation to which they would jointly have the right to:
        • determine the child’s place of residence;

        • punish the child in a reasonable manner for disciplinary purposes;
        • require the child to do such work as may be reasonable to his or her ability and condition in life; and
        • demand the return of the child from any person who unlawfully detains the child.
        Provision is made in the Thai CCC for removal of parental power, either in part or its entirety which is the mechanism by which Mr Ellison could extinguish the birth mother’s parental power so that under Thai law, he alone, had parental power in relation to the children. An application of this type would have limited prospects of success because, according to the expert, “[Thai] courts do not like to deprive parents of their parental power and will only do so when presented with clear facts of serious misconduct”. The evidence does not establish that a surrogate mother who relinquishes her child to the man, whose sperm fertilised the embryo, would by virtue of relinquishment be deprived of her parental power. [Hence why the application was made in Australia, no doubt.]

        Because Mr Ellison was not a parent under Thai law...

        He did not have the legal ability to authorise the taking of a DNA sample from the children. This would usually be fatal to being able to allow the DNA tests to be in evidence before the court.

        Luckily for Mr Ellison and Ms Solano, the test results were admissible

        Thus it is necessary to determine whether the first DNA reports might nonetheless be admissible under the Act and Evidence Act. In this regard it was fortunate for the applicants that these proceedings were conducted in accordance with Division 12A of the Act and that evidentiary rules, which would have made admission of aspects of the evidence on this topic problematic, did not apply (s 69ZT of the Act). In Re C (No 1) (1991) 15 Fam LR 350, Fogarty J said that compliance with the Regulations is mandatory and there is no capacity to admit a non compliant report into evidence. Mullane J in McK v O (2001) FLC 93 ruled inadmissible a DNA certificate where a parentage testing order was not made.

        Sections 69W and 69ZB do no more than provide a mechanism which, following the making of a DNA parentage testing order, renders admissible a compliant DNA certificate which would otherwise be inadmissible. The sections are permissive and do not exclude the admission of other non-ordered forms of DNA evidence provided that material complies with the evidentiary requirements for admission. Clearly, when a parentage testing order has not been made more than mere production of the DNA certificate will be required so as to admit this DNA evidence.

        Did it make a difference that the children were born outside Australia?

        Section 60H of the Family Law Act deals with who is a "parent" under that Act. Section 60HB deals with the recognition of children born from surrogacy arrangements.

        Both the Human Rights Commission and Mr Ellison and Ms Solano submitted to the court that those sections didn't apply because the children were born outside Australia. Was that right? Justice Ryan did not agree. The Human Rights Commission referred to the Australian Citizenship Act 2007 (Cth), in particular, s 8 which relates to children born as a result of artificial conception procedures or surrogate arrangements. Section 8 of the Australian Citizenship Act 2007 (Cth) is set out below:
        (1) This section applies if a child is:
        (a) a child of a person under section 60H or 60HB of the Family Law Act 1975; and
        (b) either:
        (i) a child of the person’s spouse or de facto partner under that section; or
        (ii) a biological child of the person’s spouse or de facto partner.
        (2) The child is taken for the purposes of this Act:
        (a) to be the child of the person and the spouse or de facto partner; and
        (b) not to be the child of anyone else.

        Her Honour said:
        The submission that s 8 of the Australian Citizenship Act 2007 (Cth) essentially picks up s 60H and s 60HB of the Act is accepted. See also H v Minister for Immigration and Citizenship & Anor; Minister for Immigration and Citizenship v McMullen [2010] FCAFC 119; (2010) 272 ALR 605. The AHRC then referred to the interpretation of the application of s 8 of the Australian Citizenship Act by the Executive in relation to which they tendered the Department of Immigration & Citizenship Policy Advisory Manual (No 3). Reference was made to three separate instructions contained therein but, as they have the same flavour, discussion of one will suffice. The current instructions, which are dated 1 January 2012, provide a description of the background for the legislative provisions concerning children born as a result of artificial conception procedures or surrogacy arrangements (Part 2 of the Instructions). Under the heading “legislative background” the Instructions state:

        Section 8 of the Citizenship Act determines who can be considered a (parent) and consequently also a responsible (parent) of a child born through artificial conception procedures in Australia or overseas or a child born through a surrogacy arrangement in Australia. Section 8 is linked to the Family Law Act 1975 (FLA), specifically s 60H (about children born through artificial conception procedures) and s 60HB (about children born through a surrogacy arrangement). Section 8 does not cover surrogacy arrangements occurring overseas.

          It is clear that these instructions differentiate between children born through artificial conception procedures without the use of a surrogate and those born through a surrogacy arrangement and that, for the purposes of s 8 of the Citizenship Act, there is a geographical limit on the latter scenario. This geographical limitation is said to arise as a consequence of ss 69ZE and 69ZG of the Act. If this is correct it must follow that Part VII orders of all types may only be made in relation to children present in the Australian States and Territories mentioned in those sections. Such an outcome would be inconsistent with s 69E. It would also be inconsistent, for example, with the referral of powers and with the investiture of powers to the Court reliant upon the Constitutional external affairs powers (s 51(xxix)) and the territories power (s 122). So that it is clear, s 69ZE and 69ZG reflect the terms of the references of power by the States and Territories to the Commonwealth, they do not establish other geographical limits to the application of Part VII.

          The answer to the issue about the application of geographical limits to s 60HB but not to s 60H (both of which are set out later in these reasons) is found in the sections themselves. By its terms, s 60H(1)(b) applies to more situations than merely those referred to in s 60H(1)(b)(ii) namely under a prescribed law of the Commonwealth or of a State or Territory. Relevantly, by s 60H(1)(b)(i), s 60H(1) also applies where “the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedures”. There are no words of geographic limitation therein. On the other hand, s 60 HB only applies “If a court has made an order under a prescribed law of a State or Territory” in relation to which various State Surrogacy Acts are prescribed. The effect of this is that, depending on the relevant State or Territory, where in the case of an altruistic surrogacy a state parentage order has been made s 60HB would apply. So that it is clear, State surrogacy legislation has not been prescribed for the purposes of s 60H(1)(b)(ii).

          Comment: What her Honour has illustrated is that the Department of Immigration and Citizenship, which administers the ability of those born outside Australia to an Australian parent, has got the law wrong, as was also the case in H v Minister for Immigration, which I have blogged here.

          Did section 60H apply?

          Her Honour found that it did not. She disagreed with the views of another Family Court judge, and followed the approach of two other judges who were of the view that (an earlier version of) section 60H, which concerned artificial conception, did not exclusively that who was a parent, but took an inclusive approach- it added people to the potential pool of parents. Just because they were not in the added pool did not mean that people were not parents.

          It appeared critical to her Honour that if the surrogate were in a de facto relationship or marriage at the time of conception, then her partner or husband would have been the father. Luckily for Mr Ellison and Ms Solano, the surrogate at the time of conception was single. The outcome may have been different if she were not.

          By the skin of his teeth: s.23 of Queensland's Status of Children Act

          The Family Law Act and the Family Law Regulations provide that section 23 of the Status of Children Act (Qld) is a prescribed law.

          Her Honour said that this meant:
          Thus, for the purposes of the Act, there is an irrebuttable presumption that the children are the children of the birth mother (s 23(1) – (3) Status of Children Act). Section 23 of the Status of Children Act does not recognise a person in the position of Mr Ellison as a parent or a person with any rights or liabilities in relation to the children (s 23(4)). However s 60H(2) only concerns prescribed laws with respect to who is presumed to be a child of a woman. Section 60H(3) concerns prescribed laws with respect to who is presumed to be a child of a man. Section 23 of the Status of Children Act is not, however, a prescribed law for the purposes of s 60H(3). Indeed there are no laws prescribed in the Regulations for the purposes of that section. Thus, although Mr Ellison cannot rely on s 23 of the Status of Children Act or any other law to support his case to be recognised as a parent under s 60H(3), the operation of s 23 of the Status of Children Act or s 60H(2) or (3) of the Act does not have the effect of excluding him from being the children’s parent.

          Does section s.60HB apply?

          This is the section of the Family Law Act that allows for recognition of parentage orders. Her Honour noted that the relevant law in Queensland was the Surrogacy Act, which did not allow parentage orders to be made for commercial surrogacy.

          Her Honour noted that Justice Watts had previously stated:

          ... By enacting s 60HB..., the Federal Government resolved any issue as to whether or not the transfer in the 1980s by the States of powers relating to children created any issue as to whether or not laws about parentage in relation to surrogate children should be made at Federal or State level. Section 60HB ... provides that State law will govern the determination of parentage and that State law will be recognised by Federal law.

          Her Honour disagreed, saying that in her view s.60HB was not so wide, but merely allowed for the recognition of parentage orders made under State surrogacy laws. Because no such order had been made, therefore s.60HB did not apply.

          Wasn't Mr Ellison the legal parent due to parentage presumptions?

          In short: no. The Thai birth certificate was not recognised for this purpose, nor had another court order been made, nor had Mr Ellison lodged formal documents in Australia acknowledging paternity.

          But wasn't Mr Ellison the legal parent?


          The Human Rights Commission told the court that Mr Ellison should be declared to be the child's father:

          It would formalise the legal relationship between the biological father and the children. The effect of a parenting order would obviously only last until the children turn 18. The Commission submits that in cases of this type if such a finding is open on the evidence then it should be made because it would have important implications for the rights of children...

          But hadn't what Mr Ellison and Ms Solano done was illegal?
          Well, yes, but the best interests of the child, in the view of Justice Ryan was a more important factor. Her Honour specifically disagreed with the approach by Justice Watts, which I have blogged here,
          setting five reasons why he declined to make a finding or declaration of parentage in that matter; namely:
          1. The applicable State law made what the first applicant did illegal;
          2. There was at that time no provision in State law that would allow the recognition of any relationship between the children and the first applicant;
          3. Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;
          4. The first applicant may seek a remedy through adoption legislation; and
          5. The [parenting] orders sought could be made without recognising the first applicant as the father of the children.

          The Human Rights Commission submitted that although it was open to his Honour to adopt the course he did, in the opinion of the AHRC it was not consistent with the children’s interests or the Convention on the Rights of the Child. The AHRC submitted that the first three reasons given by his Honour raise public policy issues. Without a doubt a matter such as this raises public policy issues, namely the potential for a declaration of parentage to potentially subvert (in part) at least the spirit of law in Queensland in relation to commercial surrogacy. However, the AHRC is demonstrably correct in its submission that “the court is faced with having children in front of it and needs to make orders that are in the best interests of those children, and at that stage it’s probably too late to ask whether – or to inquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them” .

          Her Honour noted that there was doubt as to whether the children could have been adopted, but in any case, "Lest it be overlooked, irrespective of how State law views the applicant’s actions, the children have done nothing wrong. "

          Her Honour stated:

          The fifth reason referred to [by Justice Watts] was that the orders that the parenting orders sought by the applicants could be made without declaring or finding Mr Ellison is the children’s father. On behalf of the AHRC is was submitted that:
          It’s an important principle in the Convention on the Rights of the Child that children be protected against discrimination on the basis of the status of their parents, legal guardians and family members. While that isn’t a free-standing right we say that it informs the way in which the best interest principle can be applied, and if Mr [Ellison] is not recognised as being the parent of the children it has potential to impact on other rights... (Transcript, 26 March 2012, p 25)
          Important rights would accrue to the children under Australian law, and as recognised in the CRC, if Mr [Ellison] is recognised as being their parent. These rights include rights relating to citizenship, migration, medical treatment, intestacy and child support. The Commission submits that it would be contrary to the rights of the children for Mr [Ellison] not to be recognised as a parent where the evidence supports such a finding. (Summary of Argument, Australian Human Rights Commission, p 3)
            As has already been mentioned, the children have been granted Australian citizenship by descent. Thus, as was conceded by the AHRC, some of the rights identified above are now accorded to the children, including citizenship and healthcare. Nonetheless the AHRC maintains that there would still be some additional benefit to the children from a declaration of parentage and/or a finding that Mr Ellison is a parent. I agree. As has been mentioned earlier, a declaration of parentage has a wider reach than parenting orders. Relevantly, such a declaration survives the children’s minority. In the most obvious manner, it would recognise the reality of the children’s lives and where Mr Ellison stands in relation to their biological identity.
          For the reasons discussed above, in the children’s interests, in relation to Mr Ellison a declaration of parentage will be made in relation to Mr Ellison.
          Ah yes, but is Mr Ellison a parent?

          Well, it may not be necessarily so. The Family Law Act applies to parenting issues. It does not apply to inheritance. This is dealt with under State laws, in this case Queensland's laws. As her Honour noted, section 23 of the Status of Children Act did not apply.

          Another section of the Status of Children Act is section 19E. By virtue of that section, Mr Ellison would not be a parent of the children, which may impact on them for inheritance purposes. It is clear that from the factual scenario that only the surrogate, would be the parent under Queensland law. Her Honour noted that the anonymous Thai donor might one day be recognised under the Family Law Act as a "parent", but under section 18 of the Status of Children Act, the Thai surrogate would be the only parent.

          Section 19E provides:

          (1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—

          (a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or

          (b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by a man other than the first-mentioned woman's husband.

          (2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant—

          (a) the woman is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and

          (b) the other woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.

          (3) The woman's de facto partner is presumed, for all purposes, to be a parent of the child.

          (4) Also, the man who produced the semen has no rights or liabilities relating to any child born as a result of a pregnancy for which the semen has been used. (emphasis added)
          Section 109 of the Commonwealth Constitution provides:

          When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

          Whether there is an inconsistency is a moot point. It may be that Mr Ellison could be recognised for certain limited purposes under the Family Law Act as a "parent" but not under State law as a "parent" and there may not be an inconsistency at law. This aspect was not addressed by her Honour.

          And that money paid to the surrogate?

          $7350 is the lowest I have heard a commercial surrogate to be paid. By comparison the figures I have been made aware of by clients is in the order of $9000-12000 in India, and $20,000 to $30,000 in the USA.

          And just a reminder?

          This case illustrates the potential minefield and potential huge legal costs and heartache of undertaking international surrogacy. The area is still a legal mess.

          Good legal and migration advice before embarking on the journey is vital. Making sure that properly drawn wills are prepared before the child's birth, and further wills are prepared after the birth, specifically naming the child, and covering the possibility that as a matter of law the child may not be that of the parent, are also vital.

          Finally, a disclosure

          I was contacted by one of the parties in the matter to seek a Thai lawyer to be an expert. I obtained assistance from overseas colleagues as to appropriate experts, and sent on the names.

          I also provided, at the request of one of the parties, a paper I had presented which included dealing at length as to various surrogacy cases about this issue of "parent".