Queensland surrogacy update

Three weeks ago I presented to the annual Legalwise Queensland family law conference. Not surprisingly, I spoke about surrogacy. Here is the paper I delivered:

Welcome to the Mess: Surrogacy Update

By Stephen Page

Harrington Family Lawyers[1]

Legalwise: Family Law In Practice

15 March, 2012

We have now had almost three years of practice under the Surrogacy Act 2010 (Qld), which commenced on 1 June 2010.  It is now possible to reflect on the impact of the legislation in practice, as opposed to theory.

Brief overview

The Surrogacy Act outlaws commercial surrogacy in Queensland and by those ordinarily resident in Queensland anywhere else, including overseas.  In this respect it is no different to its predecessor the Surrogate Parenthood Act 1988 (Qld).

However, the Surrogacy Act for the first time enables the legalisation and regulation of altruistic surrogacy.

Despite the difficulties that there are under the Queensland legislation, it is in several respects probably the cheapest to the parties, quickest and most flexible legislation in Australia.

There isn’t a requirement in Queensland to have written surrogacy arrangements.  However, it is advisable to obtain them because without them it is not possible to obtain a parentage order and, is likely, it is not possible to obtain treatment.

Comparison with interstate

There are currently four models of surrogacy regulation in Australia. 

Model 1: No laws 

The Northern Territory has no laws concerning surrogacy.  Therefore, surrogacy by default is legal.  This means that in theory commercial surrogacy is also legal in the Northern Territory.  However, in practice the only form of surrogacy that can be accessed is traditional surrogacy[2] which can either be commercial or altruistic.  Commercial surrogacy through an IVF clinic is not able to be accessed.  There is only one IVF clinic in the Northern Territory.  It is bound by licensing requirements that apply to all IVF clinics in Australia that mean that it cannot provide commercial surrogacy.

That clinic has also advised the writer[3] that it will not provide altruistic surrogacy services because the failure of the Northern Territory to have any laws about surrogacy means that a parentage order cannot be made.  Without a parentage order, the birth records cannot be altered with the result that intended parents may never be recognised as the parents of their child.

Out of necessity, intended parents from the Northern Territory have to move interstate or access commercial surrogacy overseas.

Model 2: The Light Hand of Regulation

This is the model that exists currently in Queensland, New South Wales, South Australia and the ACT.  In essence it requires that the parties undertake counselling and obtain legal advice before entering into a written surrogacy arrangement (although a written surrogacy arrangement is not strictly required in the ACT) before then applying to the court after the birth of the child for a parentage order, with independent evidence being obtained through a process similar to a family report to say that the proposed order is in the best interests of the child.

The model in each jurisdiction has its own quirks and there are key differences between each of the States which are at times perplexing and frustrating.

Model 3: The Heavy Handed Method of Regulation

This is the model in Victoria and Western Australia.  In addition to their being counselling and legal advice, there is also a requirement before treatment commences for approval to be obtained from the State regulator.  The complaint that is often made is that the process in both Western Australia and Victoria is slow, costly and bureaucratic. 

Recently when Tasmania was considering its surrogacy laws, the Tasmanian Attorney- General specifically rejected the approach in Western Australia because in four years of operation only 6 surrogacies had proceeded, this being attributed in effect to the model of regulation adopted.

Model 4: Prohibition - Tasmania

Currently all forms of surrogacy are prohibited in Tasmania.  The Tasmanian Parliament has passed the Surrogacy Act 2012, but at the time of preparation of this paper that legislation had not commenced.  If and when that legislation commences the model is very similar to that in Queensland, New South Wales and the ACT. 

Requirements for obtaining a parentage order in Queensland

There are 9 legislative requirements under the Surrogacy Act:

1.      The application for a parentage order ordinarily ought to be made not less than 28 days and not more than 6 months after the child’s birth[4].

2.      On the date of filing the application, the child must have lived with the applicant or applicants for at least 28 consecutive days[5].

3.      At the time of filing the child was residing with the applicant or applicants[6].

4.      At the time of hearing the child is residing with the applicant or applicants[7].

5.      The applicant or applicants have made the application jointly, being a couple[8].

6.      There is evidence of a medical or social need for the surrogacy arrangement[9].

7.      The surrogacy arrangement was made after the parties obtained independent legal advice about the surrogacy arrangement and its implications[10].

8.      The surrogacy arrangement was made after each of the parties obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications[11].

9.      The surrogacy arrangement was made with the consent of the birth mother, the birth mother’s spouse and the applicant or applicants[12].

10.  The surrogacy arrangement was made before the child was conceived[13].

11.  The surrogacy arrangement is in writing and signed by the birth mother, the birth mother’s spouse and the applicant[14].

12.  The surrogacy arrangement is not a commercial surrogacy arrangement[15].

13.  The birth mother and the birth mother’s spouse were at least 25 years when the surrogacy arrangement was made[16].

14.  The applicant or applicants were when the surrogacy arrangement was made at least 25 years[17].

15.  At the time of hearing of the application the applicant or applicants are resident in Queensland[18].

16.  All parties consent to the making of the parentage order at the time of the hearing[19].

17.  The surrogacy guidance report under section 32 supports the making of the proposed order[20].

18.  The proposed order will be for the wellbeing, and in the best interests of the child[21].

Case Law under the Surrogacy Act

There have been three significant cases decided since the Surrogacy Act came in to effect.

BLH & HN v SJW and NW [2010] QDC439

This was the first case decided under the Surrogacy Act.  It concerns a pre-commencement, altruistic, traditional surrogacy arrangement.  Judge Irwin made a parentage order in favour of a gay couple.  As was later publicised by the Courier Mail the relationship with the surrogate became strained.  Subsequently I understand that a parenting plan was entered into with the surrogate for her to spend time with the child.

Although the parties received counselling about the proposed surrogacy arrangement, in my view there are some lessons that can be learnt from that surrogacy arrangement:

·        As the arrangement was entered into when surrogacy was illegal, none of the parties obtained legal advice.  In my view, one of the most important parts of the process under the Surrogacy Act is for parties to receive good legal advice from a practitioner who knows what they’re doing as Ryan J held in Ellison and Karnchanit [2012] FamCa602[22]:

“There are many and varied paths to parenthood.  Where the path involves 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 commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.”

·        There was no written surrogacy arrangement until after the pregnancy was underway.  The Surrogacy Act is quite clear that the surrogacy arrangement must be signed before the child was conceived.  This is an important protection so as to ensure that the surrogate is able to make a decision without being already pregnant and therefore feeling compelled to sign.

It is essential that the surrogacy arrangement is in writing and that although it is not legally binding except as to the payment of money (within the limits prescribed by the legislation) that as much as possible of the agreed deal is put in writing.  The people entering into a surrogacy arrangement aren’t contemplating litigation.  They are embarking on a grand voyage of love, to create a baby.  Nevertheless lawyers are involved and a legal process. By putting as much in writing as possible there is as much clarity as there possibly can be in case anything goes wrong.

LWV v LMH [2012] QChc 26

This was a case before Judge Clare SC and her Honour had to determine what “conceived” meant within section 22(2)(e)(iv).

It is common with IVF clinics to use frozen embryos.  Often the embryos will have been created through a process when the couple were seeking to become pregnant.  Pregnancy was not successful and the embryos have remained frozen ever since then to be utilised in the subsequent surrogacy arrangement.

The issue that her Honour had to decide was whether conception was at the time of fertilisation (in which case if a frozen embryo were used in those circumstances a court order could not be made) or at the time of implantation or pregnancy.

In a world first precedent, her Honour decided that conception was at pregnancy.  Her Honour held:

            “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 Dr Nasser 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 Dr Nasser:

“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.”

Dr Nasser’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.”

Since that decision by her Honour, the following Children’s Court Judges have also made parentage orders when frozen embryos were used:

·        Judge Everson

·        Judge Dick SC

·        Judge Devereaux SC

P and P (unreported) [2012]

This is an unreported decision by Judge Dick SC. It concerned three issues:

1.      Who was a “couple”?

2.      The requirement for filing material;

3.      What constituted counselling.

The Facts

Mr and Mrs P wanted to have children.  Unfortunately due to a medical condition, Mrs P was unable to have children and a surrogate was required.  Mr and Mrs P resided with her brother and her parents.

Mrs P senior offered to be the surrogate for her daughter and son in law.  The offer was accepted.  All four parties then underwent 6 or 7 hours in total of counselling and obtained the requisite independent legal advice.

The counsellor, who disapproved of the surrogacy arrangement (as Mrs P had motor neurone disease) completed the initial counselling and then required the parties to attend more counselling upon her after they obtained the legal advice required for the Surrogacy Act.  The parties did not proceed with further counselling with that counsellor.

Just before they were to sign the surrogacy arrangement, Mr P decided that he didn’t want to have a child, nor have a marriage and told his wife that the was then going home to mother, and promptly did so.  The marriage had broken down.  It was a final separation.

At that time, Mrs P senior was 50.  The immediate problem facing Mr and Mrs P senior and Mrs P was Mrs P still wanted to become a parent and her mother still wanted to be her surrogate.  They had two options available to them:

a.       Proceed with a surrogacy arrangement and thereby obtain treatment from a doctor, but with the possibility that a parentage order would not be made because Mrs P would be doing so alone when she was part of a “couple”; or

b.      Wait 16 months until Mrs P was divorced from Mr P and then as a single applicant proceed with the surrogacy arrangement with her parents.  The risk in doing that was that the mother may not be able to become pregnant, given her age.

Not surprisingly, Mrs P and her parents decided to proceed immediately with the surrogacy arrangement.  There was a delay in proceeding, however.  Because Mr P was no longer to be the father, a sperm donor was required.  This necessitated donor counselling being undertaken by Mrs P and her parents.

Mrs P and her parents sought that the initial counsellor undertake that counselling. She refused.  Not only did that counsellor disapprove of the surrogacy arrangement, but she also disapproved that Mrs P and her parents had the temerity to choose to go to another IVF clinic.

In the applications section 25 sets out that the following documents must be produced to the court:

1.                       A copy of the child’s birth certificate;

2.                       A copy of the surrogacy arrangement[typically it will be exhibited to one of                    the solicitors affidavits];

3.                       An affidavit sworn by the applicant or joint applicants [typically separate                                    affidavits will be obtained].

4.                       An affidavit sworn by the birth mother;

5.                       An affidavit sworn by the birth mother’s spouse;

6.                       An affidavit sworn by another birth parent;

7.                       An affidavit by the lawyer who gave the independent legal advice before the                   surrogacy arrangement was made to the applicant or each joint applicant.

8.                       An affidavit by the lawyer who gave independent legal advice to the birth                                   mother and the birth mother’s spouse;

9.                       An affidavit sworn by the appropriately qualified initial counsellor;

10.                   An affidavit by the author of the surrogacy guidance report;

11.                   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.

There is also a requirement in the evidence although not set out in section 25 to prove the date of conception and in my view that is best obtained by the medical specialist who can swear as to when conception occurred. It is also practice to ensure that a brief affidavit by the applicants is filed by leave setting out that they still care for the child and that they live in Queensland.

Difficulty with filing in P and P

All the material was filed save one document. That document was the affidavit of the initial counsellor.  She did all in her power to ensure that she not swear an affidavit as she strongly disapproved of the surrogacy arrangement.  She discounted the idea that the surrogacy arrangement was appropriate even though the surrogacy guidance report indicated that the proposed arrangement was in the best interests of the child. 

It ought to be noted that if an order were not made then because Mrs P senior was the surrogate, then Mrs P senior and Mr P senior were the birth parents and therefore the parents as a matter of law before any parentage order was made.  This meant that on the birth certificate the child’s genetic mother, the applicant, Mrs P and her brother were the siblings of the child.

Nevertheless when the matter came to court the counsellor had not sworn her affidavit and was obdurate that she would not do so.

Preliminary Ruling

Her Honour was of the view that the intention of Parliament in Section 25 was clear: “must” means “must” and that without an affidavit of the counsellor, an order could not be made.

Her Honour’s solution with the counsellor

Her Honour adjourned the matter for two weeks to enable a subpoena to issue.  Her Honour suggested that an affidavit be supplied to the counsellor along with a covering letter at the time that the subpoena was served suggesting that the counsellor swear the affidavit in preference to having to appear on the subpoena and that if she swore the affidavit then she would not be required to attend.  Her Honour also indicated that in her view the counsellor breached her fundamental duties to her clients and that if the counsellor gave evidence under subpoena (which would still not have complied with the legislation) then her Honour would have reported the counsellor to a professional association.

This information was passed onto the counsellor.  No doubt if the counsellor had been brought to court pursuant to the subpoena she would have been asked to swear an affidavit and if she had then refused she may well have been in contempt, with consequences that flow from that.

The counsellor’s response

The counsellor eventually swore her affidavit, but added to it that counselling was incomplete.

The ruling about counselling

Her Honour ruled that counselling for the purposes of section 22(2)(e)(ii) which provides:

            “Was made after each of the birth mother, the birth mother’s spouse (if any) and the        applicant, joint applicants, obtained counselling from an appropriately qualified     counsellor about the surrogacy arrangement and social and psychological         implications”

meant that counselling did not need to be completed but merely needed to have occurred, the counselling had in this case occurred and there was there was therefore sufficient compliance with the legislation.

Couple

Section 21 sub paragraphs (3) - (16) provide:

            “(3) Subsections (4) and (5) apply if there are 2 intended parents under the surrogacy       arrangement and the 2 intended parents were a couple when the surrogacy     arrangement was made.

            (4) The application for the parentage order may be made only by the 2 intended    parents jointly.

            (5) if the 2 intended parents are no longer a couple or one of them has died, one of the      intended parents may apply for a parentage order.

            (6) If there is 1 intended parent under the surrogacy arrangement and the intended           parent did not have a spouse when the surrogacy arrangement was made, the       intended parent may apply for a parentage order.”

What was significant about subsection (3) in the context of the marriage of Mr and Mrs P was that there was only one intended parent under the surrogacy arrangement, namely Mrs P, not two and that at the time the surrogacy arrangement was made Mr and Mrs P were legally a “couple”.  In the middle of subsection (3) is the word “and” it was submitted to her Honour that Parliament intended that subsections (4) and (5) only applied if both requirements of subsection (3) applied, namely that there were two intended parents under the surrogacy arrangement and they were a couple when the surrogacy arrangement was made.  In the case of Mrs P only one of those requirements were met, namely that Mr and Mrs P were a couple.  The other requirement that there were two intended parents under the surrogacy arrangement was not met, as only Mrs P was the intended parent.  It was submitted therefore that subsections (4) and (5) did not apply.  It was also submitted that within subsection (5) there was empowerment to Mrs P because of the word “may”.

It was submitted that there was difficulty because of subsection (6) namely if there is one intended parent under the surrogacy arrangement “and the intended parent did not have a spouse when the surrogacy arrangement was made, the intended parent may apply for a parentage order.”  One way of reading that was to say Mrs P if she were single could apply for a parentage order.

Schedule 2, the dictionary to the Surrogacy Act, says, “couple”: “see section 9 (2)”.  That section defines “couple” as:

            “A couple is a person and the person’s spouse.”

Section 36 of the Acts Interpretation Act 1954 (Qld) says, relevantly:

            “In an Act – spouse includes de facto partner and registered partner”.

Furthermore section 9(1) contains a note:

            “Parentage of a child born as a result of a surrogacy arrangement may only be     transferred on 1intended parent who is single or 2 intended parents who are a couple            - see section 22(2)(c).”

By virtue of section 14(2) Acts Interpretation Act 1954 (Qld) that form of note was deemed to be part of the Act.

Her Honour’s attention was drawn to the second reading speech in which the then Attorney- General, the Honourable Cameron Dick said:

            “The law, where it grants freedom, should not grant these freedoms to one class of           persons and deny them to others.  If altruistic surrogacy is decriminalised, it should    be decriminalised for all citizens… governments and parliaments should not involve    themselves in the picking and choosing of who can have children and who cannot.            History shows that political leaders are ill suited to such tasks…. To the contrary, the             government believes that children should be raised by parents – any parents – who           can best love them and best provide for them and best give to them all the        opportunities that life may present.  The quality and capacity of a parent should be            judged by their actions, not by their name, their gender, by their race, their marital            status, not their sexual orientation… we need to ensure that children are treated the         same regardless of their birth parents…. Children that are born as the result of an          altruistic surrogacy arrangement deserve to be treated at law the same as all other     Queensland children and should not be disadvantaged because of who their parents    are… this bill is about ensuring the best interests of all Queensland children and    ensuring that in law it is about ensuring that the legal status of all children is the      same no matter what the circumstances of their birth or parentage.”

It was submitted that if Mr and Mrs P were a “couple” then there was the ability to dispense with the requirement.  Section 23(2) allows some of the provisions in section 22(2) to be dispensed with but only if the court is satisfied that:

a.       There are exceptional circumstances for giving dispensations; and

b.      The dispensation will be for the well-being and the best interests of the child.

Exceptional circumstances

It was submitted that the circumstances were “unusual or out of the ordinary”.  It was submitted the unusual circumstance was very simple – given Mrs P senior’s age there was risk that in common parlance that her body clock did not have long to run – that if the surrogacy did not proceed then and there, as opposed to waiting 15 or 16 months for divorce, a child may never have been conceived and born.

The other special circumstance it was submitted was that the child was as a matter of law the sister of  Mrs P’s and Mrs P’s brother’s as opposed to their daughter and niece respectively.

Wellbeing, and in the best interests of the child

It was submitted that as the dispensation would allow the making of a parentage order, and that the evidence showed that the making of the parentage order is for the wellbeing and best interests of the child, that therefore the dispensation will be for the wellbeing and best interests of the child.  It was submitted that the court could also rely upon the evidence as to the advantages to the child of having an order made, as opposed to the disadvantages to the child if an order were not made.

Mr and Mrs P were not a couple

Her Honour commented on the first occasion that she accepted the thrust of the submissions and that there was in fact a different outcome if Mr and Mrs P had been in a de facto relationship as opposed to a marriage.  She was of the view that Parliament did not intend for a marriage that had broken down, such as for 30 years, that therefore a single applicant could not proceed with her surrogacy.

In her ruling her Honour accepted the thrust of the submission and found that by virtue of the parties having separated that Mr and Mrs P were not at the time of signing the surrogacy arrangement a “couple” but that if she were wrong about that then she would dispense with the matter there being special circumstances being:

a.       The age of Mrs P senior at the time of the signing of the surrogacy arrangement having regard to the likelihood of having a child or not and,

b.      That she considered the making of the order was for the wellbeing and in the best interests of the child.

Family Court Cases

In 2010 – 2011 there were a series of cases decided in the Family Court concerning overseas surrogacy almost invariably from Thailand.

Of greatest significance were four cases decided by Justice Watts on 30 June 2011.[23]   

In those decisions His Honour was called upon to make parenting orders in favour of the intended parents who had had children born in Thailand by surrogacy. In all cases, the intended parents appeared to have engaged in commercial surrogacy. In each of the four cases they were seeking to show that the intended (and genetic) father was the parent as a matter of law. In two of the cases, his Honour referred to the matter to the Queensland Director of Public Prosecutions for possible prosecution.  My understanding is that neither of the couples ultimately was prosecuted.  In all four cases his Honour questioned whether the intended father would, as a matter of law, be a parent of the child.

His Honour questioned two matters:

a)      If the parties have engaged in an illegal act then the law does not reward those who engage in illegal acts and it is open to question as to whether the law would recognise the particular individual as the father;

b)      Following various statutory presumptions under the Status of Children Act in New South Wales (and there is equivalent legislation across the country) being legislation designed for donor arrangements, it may be that the intended parents are not the parents of the child.

A different approach was taken in a test case, also involving a Queensland couple who appeared to have engaged in commercial surrogacy in Thailand.

Ellison and Karnchanit (2012) [24]

Mr Ellison and his wife, Ms Solano brought twins home from Thailand after engaging in commercial surrogacy there.  The surrogate was paid AUD$7,350, roughly US$7,700.

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. 

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

Two of the key features in the case 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 critical 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 surrogacy 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 the applicant’s adduced 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.”

Justice Ryan set out guidelines as to how future international surrogacy cases are to be run in the Family Court:

1)      An Independent Children’s Lawyer is appointed to represent the child’s best interests;

2)      Affidavit evidence of the applicants and the birth mother is to be obtained comprising:

·        Their personal circumstances, in particular the circumstances at the time the procedure took place;

·        The circumstances leading up to the surrogacy arrangement and of the procedure itself;

·        The circumstances after the birth of the child and subsequent arrangements for the care of the child;

·        Independent evidence regarding the identification of the child including:

-         The surrogacy contract / agreement entered into between the person 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 it is the 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 child is the biological child of the person /s seeking the parenting order;

-         Evidence of Australian citizenship of the child if citizenship has been granted.

·        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;

3)      Confirmation that the surrogacy arrangement was made with the informed consent of surrogate mother;

4)      Evidence after the birth of the child or the surrogate’s mother’s views about the orders sought and what relationship, if any, she proposes with the child;

5)      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:

a.       The nature of the child’s relationship with the person seeking parenting orders;

b.      The effect on the child of changing their circumstances;

c.       An assessment of the person seeking the parenting orders’ capacity and commitment to the long-term welfare of the child;

d.      The person 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;

e.       Advice in relation to the issues which may arise concerning the child’s identity and how those issues are best managed;

f.        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:

a)      Evidence to the legal regime and the overseas jurisdiction in which the procedure took place with respect to surrogacy arrangements;

b)      Evidence of the legal regime and 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’ve come from Queensland, New South Wales or the Australian Capital Territory, the approach taken by her Honour will be expensive, slow and difficult. 

The case before her Honour took over a year to be resolved[25].

In reality, my thoughts were that intended parents may be more inclined to avoid Thailand and go, instead to India or the US where there isn’t any requirement to obtain a parenting order.  It is very rare indeed for Australian intended parents to seek Family Court orders when having undertaken surrogacy in India or the US. However, the impact of changes in India is likely to mean the reverse- more Australian intended parents going to Thailand.

The requirement for the DNA testing to comply with the Family Law Regulations will impose a burden on the 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. This alone may well be in excess of AUD$15,000[26] or about US$16,000.

The guidelines are not binding on other judges, but I understand that there may be moves within the Family Court to create procedural rules along the lines of the guidelines.

As will be seen in the discussion in Schone below, the guidelines as to the appointment of Independent Children’s Lawyers might not reflect practice in some parts of Australia.

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 had been undertaken to comply with the requirements of the Australian Department of Immigration & Citizenship, which showed a 99.99999996% probability that Mr Ellison is the child’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 gave evidence that pursuant to Thai law, Mr Ellison had parental authority.  The effect of the expert’s evidence was that there are no surrogacy specific laws in Thailand. Surrogacy issues were governed by the Civil Commercial Code.  According to the Code, a child born of an unmarried woman was deemed to be her legitimate child unless otherwise provided by law.  The effect of the Code was that the birth mother had sole legal custody of the children.

However, another provision of the Code provided 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 on the Court.”

Mr Ellison was entitled to apply for registration and /or petition a Thai Court “for legitimisation of his children”.  An application for registration required both the mother and children’s consents.  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 was explained by the expert that in that case since the children were too young to give consent, the legitimisation must be effected by a Judge from the Family Court of Thailand.

The effect of the successful application by Mr Ellison in Thailand for legitimisation of the children would have been to granting 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 on his or her ability and condition in life;

·        Demand the return of the child from any person who unlawfully detains the child.

Provision was made in the Thai Civil Commercial Code 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 kind would have had limited prospects of success according to the expert because Thai courts apparently 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 did not establish that a surrogate who relinquished her child to the man whose sperm fertilised the embryo would by virtue of relinquishment be deprived of her parental power.

Because Mr Ellison was not a parent under Thai law…

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

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

They were very lucky indeed.

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

Section 60H of the Family Law Act 1975 (Cth) 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.  Justice Ryan did not agree.  Her Honour cited at length the guidelines of the Department of Immigration and Citizenship as to DNA testing of children born overseas. I note that these guidelines are not the law and that a Federal Court case, H –v- Minister for Immigration and Citizenship (2010)[27] talks about a test -demonstrated intent- as to who and who is not a parent. 

Her Honour disagreed with the approach of Justice Watts.  It appeared critical to her Honour as to whether or not the surrogate was in a de facto relationship or marriage at the time of conception, then a partner or husband would have been for Queensland and then Australian law the father of the children.  Luckily for Mr. Ellison and Ms. Solano, the surrogate at the time of conception was single.  The outcome almost certainly would have been different if she were not.

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

In short – no.  The Thai birth certificate was not recognised by the court for that 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?

Yes.  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 of 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 disagreed with the previous approach by Justice Watts who had stated in the earlier cases:

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 Justice Watts to adopt the course he did, in the opinion of the Commission it was not consistent with the child’s best interests or the International Convention on the Rights of the Child.  The Commission submitted that the first three reasons given by Justice Watts raised public policy issues.  Justice Ryan noted that the matter raised public policy issues namely the potential for declaration of parentage to potentially subvert in part at least the spirit of law in Queensland in relation to commercial surrogacy.  She said however that the Commission was demonstrably correct in its submissions 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 enquire into the legality of the arrangements that had been made.  The Court really needs to take the 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 how State law views the applicant’s actions, the children have done nothing wrong.”

[I might note on this point that given the structure of Queensland law and practice, adoption would have been next to impossible.]

The Human Rights Commission said that in light of the International Convention , the rights of the child are important. A declaration was made of parentage in favour of Mr Ellison.  Justice Ryan found that by virtue of the status of the Sex Discrimination Act, Federal legislation overrode the relevant provision of the Queensland Status of Children Act, Mr Ellison was the father as a matter of law.

Significantly, Her Honour did not find who was the mother of the child. Under Australian law it is questionable as to who was the legal mother. Was it Ms Solano, the egg donor or the surrogate? I don’t know.

It is questionable whether Mr Ellison was the father of the child for other purposes, such as for inheritance issues.

Gough and Kaur (2012)[28]

Justice Macmillan of the Family Court considered the case of a Victorian couple who had undertaken surrogacy in Thailand. The child had been conceived from the Australian man’s sperm and from an egg of an anonymous egg donor. It appeared that the surrogacy may have been of a commercial nature, but no direct benefit was paid to the surrogate. Her Honour took a different approach to that of Justice Ryan:

“Notwithstanding that the first named applicant is the genetic father of F, it does not follow that he is necessarily a parent for the purposes of the Family Law Act 1975. There is no definition of a parent in the Act save and except that in s 4 (1) ‘parent’, when used in Part VII in relation to a child who has been adopted, is defined as “an adoptive parent of the child”. That is clearly not relevant to this case. To the contrary ss 60H(1)(a)–(c) provide that where

...a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a defacto partner of, another person (the other intended parent) [and certain other conditions are met, then]... whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act ... the child is a child of the woman and the other intended parent and s 60H(1)(d) provides that where ...a person other than the woman and the other intended parent provided genetic material— the child is not the child of that person. The first named applicant in this case was not the husband or defacto partner of the respondent. Whilst he provided genetic material, the child is not his child for the purposes of the Act.

This does not however preclude the applicant husband and wife seeking parenting orders with respect to F.”

Her Honour then considered what orders ought to be made:

“The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child or children’s best interests, the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. The analysis of those statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives. The primary considerations directly take up the first two of those objectives.

Clearly in this case it will not be possible for the respondent, and nor does she intend, to have any meaningful involvement in F’s life. To the contrary, she has entered into a contract by which she relinquishes any parental rights she may have had and consents to the orders sought by the applicants.

Whilst F may not have the benefit of the meaningful involvement of the respondent who gave birth to her, she will have the ongoing and meaningful involvement of two loving and caring parents, one of whom is her genetic parent, and the other his wife, who, it is clear to me, are totally committed to ensuring her best interests. From my observations of them in Court, the very depth of their emotions clearly demonstrates the strength of their love and commitment to this little girl.

Whilst the applicants were concerned that my request for information about F and their capacity to provide for her care indicated that I was treating them differently from other parents because of the surrogacy, I can only repeat what I said to them during the hearing, that I am required to consider F’s best interests as paramount and that I could not do so in the absence of evidence. I am however comforted by the affidavits that they filed, prepared by them with the assistance of the Duty Solicitor.

The applicant husband is 38 years of age. The applicant wife is 37 years of age. They were married in May 2010 and for medical reasons have no other children. The applicant husband is in good health. The applicant wife has osteoarthritis and may need to have both knees reconstructed.

The applicant husband works full time as a public servant and earns approximately $70,000 per annum. The applicant wife works on a casual basis from home in a design field and has done so for seven years. She is presently caring for F on a full time basis with the assistance of the applicant husband and his mother if necessary. They presently rent accommodation in Melbourne.

The applicant husband has extended family in Melbourne, with whom they have regular contact, including his parents and two brothers, one of whom is married with a child. They currently do not have contact with the applicant wife’s family in New South Wales as they have religious objections to surrogacy. The applicant wife remains open to the possibility of re-establishing the relationship with her family.

The applicant husband is of Burmese descent, which is one of the reasons the applicants chose Thailand as the place where F would be born, and they intend to raise her with an awareness and appreciation of her Burmese heritage.

The applicant husband and wife have demonstrated a thoughtful and caring attitude toward their responsibilities as parents and have clearly demonstrated a capacity to meet F’s needs on an ongoing basis.

They have already given consideration to the options available for her education, they have put in place arrangements for her care if anything were to happen to them, and I was impressed by their sensitivity to the issue of how in due course they will explain to F the circumstance of her birth. Whilst F is young, I have little doubt that she will have the benefit of a meaningful relationship with both the applicant husband and wife in a secure and loving environment.

When making a parenting order I am required under s 61DA(1) to apply the presumption that it is in the child’s best interests that her parents have equal shared parental responsibility. It would appear that whilst the respondent may technically be F’s parent, she has relinquished any parental rights and consents to orders that the applicant husband and wife have equal shared parental responsibility for F. In those circumstances I am satisfied that the presumption is rebutted as it would not be in F’s best interests in these circumstances to require the applicants to share parental responsibility with the respondent.”

Schone and Schone (2012)[29]

Mr and Mrs Schone were a Victorian couple who had undertaken commercial surrogacy in India. Only Mr Schone’s name was on the birth certificate. They applied to the Federal Magistrates Court for parenting orders. Federal Magistrate Phipps transferred the matter to the Family Court, noting the decisions of Justices Ryan and Macmillan. His Honour also stated:

“If I was to proceed with this case, I would be faced with conflicting decisions by Family Court of Australia judges.

The other matter is the complications involved. If I follow Ryan Js decision about procedure that would include the appointment of an Independent Children’s Lawyer. There is nothing in the material to suggest that this case would satisfy the requirements of the Victoria Legal Aid Commission for them to appoint an Independent Children’s Lawyer. There are three matters that Victoria Legal Aid require: Allegations of physical, sexual or psychological abuse; the conduct of the parties is alleged to be anti-social; or there are issues of significant medical or psychological illness or personality disorder. This is not such a case. The contrary appears to be the case.

If I was to make an order in this court for the appointment of an Independent Children’s Lawyer, it is likely that it would not be made and funded by Victoria Legal Aid. For these reasons, the matter should be transferred to the Family Court of Australia.”

Blake and Another [2013] FCWA1

Western Australia's Family Court has recently allowed an adoption by a gay co-father of twins conceived through surrogacy in India. Crisford J could only allow the adoption to proceed if she found that Mr Blake's partner, Mr Marston was not only the genetic father of the child, but the legal father of the child.

Mr Blake sought a step-parent adoption of the children. The twins were born as a result of a surrogacy procedure which took place at a fertility clinic in Mumbai. The procedure was carried out by fertilising eggs from an anonymous egg donor with Mr Marston’s sperm. The fertilised eggs were then implanted in a surrogate, Mrs S, who gave birth to the twins.
 Mrs S, her husband and Mr Marston entered into a surrogacy agreement in December 2009 which was binding under Indian law. In accordance with that agreement, Mrs and Mr S relinquished all their rights to any children born of the surrogacy procedure, and covenanted not to engage in any legal proceedings in relation to their rights or custody of the children. The surrogacy agreement declared that Mr M is the ‘intended parent’ of the children. The surrogacy agreement makes no mention of Mr Blake.

Upon their birth in 2010 Mrs S gave the children into the care of Mr Marston and Mr Blake, who visited India for that purpose. Mr Marston was named as the father of the children on their Indian birth certificates. No mother is named on the birth certificates.
Mr Marston then applied for Australian citizenship for both children on the basis of their parentage. He provided DNA samples from the children and himself so that a parentage testing procedure could be performed at a laboratory in Sydney. The test results confirmed that Mr M has a 99.9% chance of being the "genetic parent" of the children.

 The Department of Immigration and Citizenship registered each child as an Australian citizen by descent on 7 August 2010. After the decision Mr Marston and Mr Blake returned to Australia with the children. Both children have lived with Mr Marston and Mr Blake since their birth. Mr Marston is an Australian citizen and Mr Blake is a Canadian citizen with permanent residency status in Australia.

Mr Blake, Mr Marston and the children were residing overseas.

Policy issues
Her Honour noted the "well crafted" judgment in Ellison and Karnchanit.

Justice Crisford noted that there was a different factual and legal matrix in this case. For one, it was not being decided under the Family Law Act, but the Adoption Act of Western Australia.

To be eligible to adopt, Mr Blake had to fulfil the definition of a ‘step-parent’ for the purposes of a step parent adoption, and therefore Mr Marston would have to be defined as either a ‘birth parent’ or ‘adoptive parent’ of the children.

Artificial Conception Act

Her Honour found that Mr Marston would NOT be a parent for the purposes of the Artificial Conception Act. Section 6A of the Artificial Conception Act 1985 (ACA) refers to the female partner of a woman who gives birth and has no application here.  The rules relating to parentage under the ACA would seem to exclude Mr Marston from being the father. Section 7 states:

“(2) Where -

(a) a woman becomes pregnant in consequence of an artificial fertilisation procedure; and

then for the purposes of the law of the State, the man referred to paragraph (b) -

(c) shall be conclusively presumed not to have caused the pregnancy; and

(d) is not the father of any child born as a result of the pregnancy.”

 An artificial fertilisation procedure is defined for the purposes of the ACA as any:

(a) artificial insemination procedure; or
(b) in vitro fertilisation procedure.
Artificial insemination procedure and in vitro fertilisation procedure are then defined.

Her Honour, finding that IVF had been used, found therefore that Mr Marston was not the father under the Artificial Conception Act. This is entirely consistent with the questions posed in 2011 by Justice Watts.

Ordinary meaning

Her Honour went on to say that the court could consider who was a "father" or "parent" in the ordinary meaning of the word.
Mr Marston declared to the Department of Immigration and Citizenship that he was the father of the children, after a DNA test found that he was 99.9% likely to be the father.
Her Honour stated:

"Although the Court is satisfied that Mr Marston has established on the balance of probabilities that he is the biological or genetic father of the twins, it does not automatically follow that the state law recognises either him as a parent or Mr Blake as a step-parent....
 There are certified copies of overseas birth certificates showing Mr Marston as the father. The certificates were accepted by the Department of Immigration and Citizenship in assessing the issue of citizenship and the provision of passports.
One overarching consideration is that since July 2010 Mr Marston and Mr Blake have acted as parents to these children. They have fulfilled that role for over two years without input from any other person who might be seen as a parent. ..
 To suggest that Mr Marston is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of "family" in present day society. It is also turning a blind eye to the reality of the situation presently before the Court. The objective facts surrounding the birth and the manner in which various agencies have treated those circumstances coupled with the fact of the genetic father acting in that role since the birth of the twins points to the use of an expanded definition of parent.
To adopt any other interpretation would serve no purpose in addressing any public policy issues if, indeed, any exist. It would serve no purpose in enhancing the future welfare and best interests of these children.
 As the Australian Human Rights Commission submitted in Ellison  "the Court really needs to take children as it finds them". There is no valid reason to disadvantage children of surrogacy arrangements."

Her Honour then went on to make the proposed adoption order, finding that it would be in the interests of the children, including their identity and their long term welfare.
Comment
Although the decision is limited to the particulars of Western Australia's Adoption Act, there are some significant features of this case:

1. The court looked at the reality of who is a parent. If a person can be the genetic parent of a child, recognised on the child's birth certificate as the parent, the mother and her husband having relinquished parenting by virtue of the surrogacy contract, with the father and his partner having undertaking the parenting for the children since their birth for two years, why would the court not recognise the reality?
2. The provisions of the Artificial Conception Act are much like the Status of Children Act (NSW) Watts J said: "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."
3. By looking at the reality of the situation, her Honour has possibly opened the door for more cases in which an intended father may be considered to be the father of a child.
4. It was only because of the position of the WA Department for Child Protection that there was no investigation of the views of the surrogate or her husband. Otherwise it is likely that in line with the decision in Ellison such a costly and slow procedure would have occurred. Mr B and Mr M got lucky.
5. This case is an illustration of how the law can cater for unintended cases. The Adoption Act was intended to apply to home grown adoptions. Accordingly there would be an adoption plan. Her Honour saw that in light of the surrogacy contract there was no need for that.
6. This case is also an illustration of how in other States such a step might not be taken. In Queensland, for example, adoption by same sex couples is banned, which also means that a decision like this could never occur under current laws in Queensland.
7. Finally, this case is yet another illustration about why there needs to be reform about who is or who is not a parent through a surrogacy arrangement, and  some common sense, as seen in this case, is welcome. There have been a series of cases in the Family Court in which different approaches were taken about who is or is not a parent. To have a clear legislative framework to acknowledge that if someone is recognised by the Department of Immigration and Citizenship as a "parent" that they are also recognised as being parents under the Family Law Act and relevant State legislation such as the Artificial Conception Act, would seem a common sense and long overdue step.

Proposed changes in Queensland

In June 2012 the Attorney General Jarrod Bleijie announced to Parliament in the debate about civil partnership that Queensland would be changing the Surrogacy Act along the lines of those previously proposed by Lawrence Springborg in 2009.  The Attorney stated:

“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.

            What we are also going to deal with is the other issue that the bill dealt with and that        is parenting 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 a policy position we took years ago when we debated the Surrogacy Act.”

Since then, there have been no changes to the Surrogacy Act, in August the Attorney’s office wrote to me setting out four points:

1.      Lesbian co-mothers are to continue to be recognised.

2.      The government will not be bringing in a new criminal offence if intended parents are same sex couples, single or in a heterosexual de facto relationship of less than 2 years.

3.      Doctors will still be able to treat.

4.      The definition of “intended parent” will exclude same sex couples and heterosexual de facto couples of less than two years.

If the changes proceed, it is unlikely, at least for people living in Brisbane, that they will be effective.  What the changes would mean for someone living and working in Brisbane would be:

·        They would move to Casuarina Beach, Tweed Heads or Banora Point, and continue to commute to Brisbane.

·        As the intended parents would therefore be residing in New South Wales, the surrogacy arrangement would be a New South Wales surrogacy arrangement.

·        Treatment would still be carried out on the Gold Coast or in Brisbane.

·        The child would be born in Brisbane or the Gold Coast and registered with the Registrar of Births, Deaths and Marriages.

·        An order would then be made by the Supreme Court of New South Wales.

·        That order would then be given effect by the Registrar of Births, Deaths and Marriages in Queensland, thereby recognising the intended parents as parents on the Birth Register.

It is also my view that the Commonwealth Human Rights and Anti-Discrimination Bill would if it passes both Houses of Parliament and survives a High Court challenge overrule such discrimination.

Family Law Council

The then Attorney General Nicola Roxon has given the Family Law Council the task of enquiring as to how the Family Law Act can be made to synchronise with the various State Surrogacy Acts.  The council is due to report at the end of the year.  Submissions are due on 1 May 2013.

           

Stephen Page

Harrington Family Lawyers

1 March 2013

Stephen Page connect with me on the web:
http://www.harrringtonfamilylawyers.com
http://australiandivorce.blogspot.com.au

http://lgbtlawblog.blogspot.com.au
http://surrogacyandadoption.blogspot.com.au

http://twitter.com/stephenpagelaw

http://www.facebook.com/#!/pages/Stephen-Page-Lawyer/152122584877146

http://au.linkedin.com/in/stephenpagelawyer

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[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an accredited family law specialist.  He is an international representative of the American Bar Association Assisted Reproductive Technology Committee Executive Council, a member of the International Surrogacy Forum and a member of the Fertility Society of Australia.  He is the author of the Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au

[2] Where the surrogate is a genetic mother

[3] Conversation with Susan in Brown in February 2013

[4] Section 21(1)(a)

[5] Section 22(2)(b)(i)

[6] Section 22(2)(b)(ii)

[7] Section 22(2)(b)(iii)

[8] Section 21

[9] Section 22(2)(d), Section 14(2)

[10] Section 22(2)(e)(i)

[11] Section 22(2)(e)(ii)

[12] Section 22(2)(e)(iii)

[13] Section 22(2)(e)(iv)

[14] Section 22(2)(e)(v)

[15] Section 22(2)(e)(vi)

[16] Section 22(2)(f)

[17] Section 22(2)(g)

[18] Section 22(2)(g)(ii)

[19] Section 22(2)(h)

[20] Section 22(2)(i)

[21] Section 22(2)(a)

[22] At [140]

[23] Dudley and Chedi [2011] FamCA 502, viewable here: http://www.austlii.edu.au/au/cases/cth/FamCA/2011/502.html; Hubert and Juntasa [2011] FamCA 504, viewable here: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/504.html; Findlay and Punyawong [2011] FamCA 503, viewable here: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/503.html; Johnson and Chompunut [2011] FamCA 505,  viewable here: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/505.html

[24] [2012] FamCA 602, viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2012/602.html

[25] Proceedings commenced sometime soon after 1 March, 2011, with judgment being handed down 1 August 2012.

[26] Estimate: $3,000-5,000 for the independent children’s lawyer, plus $5-7,000 for the report writer’s fees, plus airfares, accommodation and sundries. The report writer would likely insist on flying business class.

[27] [2010] FCAFC 119 viewable at http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/119.html

[28] (2012) FamCA 79, viewable at http://www.austlii.edu.au/au/cases/cth/FamCA/2012/79.html

[29] [2012] FMCAfam 1126, http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2013/1126.html