Family Law Council surrogacy inquiry submissions- part 2

Here are my further submissions to the Family Law Council's surrogacy inquiry, the submissions being caused by two recent Family Court cases:

28 June 2013

 

Professor Helen Rhoades

Family Law Council Secretariat

Attorney General’s Department

3-5 National Circuit

Barton ACT 2600

 

 

Dear Professor Rhoades

 

 

REVIEW OF PARENTAGE LAWS – Further Submission

 

I refer to my submission forwarded to you 5 June 2013.

 

Since that submission there have been three matters that have arisen, namely an international matter and two Family Court cases.

 

Proposed Hague Convention

 

As members of the Council are probably aware, the Hague Conference on private international law has sent a questionnaire to each member nation seeking a response as there have been moves for some time within the conference for there to be an international convention on international surrogacy.

 

I enclose a copy of the questionnaire.

 

In my view it would be a fundamental mistake by Australia to seek to outlaw Australians undertaking international surrogacy.  The evidence of where such prohibitions are in place is that they don’t work and all that happens is that it leads to secrecy and therefore anxiety on the part of the intended parents; which in turn may well mean for any children born through that process that they will not truly know where they came from.

 

Colleagues practising in the United States have told me that there is a key difference between surrogates chosen by Australian couples and surrogates chosen by European couples, where the European couples come from countries that have an absolute prohibition on surrogacy including international surrogacy.  Australian couples want to know their surrogate and have an ongoing relationship with her because they recognise that this is for the benefit of their child.  European couples by contrast do not want to have an ongoing relationship with their surrogate because they pretend to their government and others that the child was conceived either naturally or through IVF but not involving surrogacy.  This will mean inevitably that the child may well not know that he or she was conceived through surrogacy or the identity of the surrogate let alone, any meaningful relationship with the surrogate.

 

The desperate desire to have children is such that I have no doubt that desperate people will adopt desperate measures and will continue to have children via surrogacy internationally irrespective of any ban.

 

I believe that there may be some benefit in there being an international convention; if that convention is properly drafted with the aim of seeking to protect the human rights of all involved namely the intended parents, the surrogate and her partner and above all the child.

 

However, I am of the belief that the proposed model put forward by academics in Aberdeen which conflates surrogacy with adoption and proposes that central authorities be involved will quite simply not work and will not do anything to protect human rights, but instead may encourage countries to discriminate against some intending parents such as singles or those in same sex relationships.

 

My role with the Assisted Reproductive Technologies Committee of the American Bar Association is to help draft the position to be put to the House of Delegates of that association as to that association’s official position in respect of a proposed Hague Convention.

 

Two further Family Court Cases

 

As you are probably aware, since my last submission there have been two recent decisions handed down by Family Court judges:

 

·         Justice Ryan in Mason & Mason [2013] Fam CA 424 (Justice Ryan)

 

·         Justice Cronin Groth & Banks [2013] Fam CA 430 (Justice Cronin)

 

The significance of Mason & Mason is that her Honour changed her mind from her previous decision in Ellison & Karnchanit [2012] to a position where she believed that State legislation concerning parenting presumptions was the legislation that concerned who was a parent, determining that the applicant was not a “parent”.

 

Her Honour noted that the Commonwealth Parliament sought to adopt the same scheme that operates in the States and Territories:

 

            “namely a scheme for the declaration of parentage and, for children born or a surrogacy   arrangement, the transfer of parentage in accordance with an order made by the Supreme      Court of NSW.”

 

Her Honour did not deal with the approach taken by Justice Crisford in Blake & Anor [2013] FCWA 1 where her Honour dealt with the “reality” and looked at in effect the intention of the parties as to who was to be the parent.

 

If Justice Ryan had adopted the approach taken by Justice Crisford then in my view she would have found that the applicant was a “parent”.

 

Of concern are the facts contained in paragraph 4 of the judgment:

 

“The contract provided that the total compensation Rs 2,25,000 (Rupees two Lakhs twenty five thousand) for a vaginal birth or Rs 2,60,000 (Rupees two Lakhs sixty thousand) if the mother had a caesarean delivery. It is not necessary to summarise the entire agreement but it should not pass without comment that the provisions which limit the birth mother’s ability to manage her health during the pregnancy and make decisions

 

 

about delivery of her babies, are troubling. It is also troubling that this 29 page document is written in English. It is signed by the applicant and, because she is illiterate in English and Hindi, the mother’s attestation is her thumb print. There is nothing in the document which suggests that before the birth mother signed it that it was read and translated to her.”

 

I also note paragraphs 67 to 69 of her Honour’s judgment:

 

67.              “As to the children being born from a surrogacy arrangement by mothers they are unlikely to know, the family consultant said that at some point in the children’s            lives, they may have “an intense, emotional identity crisis about this aspect of   their lives”. She went on to say:

31.              ... Borrowed from the discourse about adoption, the twins may potentially face a more complicated task of making sense of their place in the world because they have grown up in a family whose parents faces do not look like theirs and without experiencing their “mother”, and her culture. There may be times in [the children’s] lives when they will be pre-occupied with this task. They may seek contact with their mothers at significant life cycle transitions. It is also possible that it may never be an issue for the twins.

32.              The adoption discourse suggests that, of those who make enquiries about their adoption and have difficulties when adjusting to the news, these emotional difficulties are often a result of pre-existing psychological vulnerabilities and where there were already troubled family dynamics within the adoptive family. [The applicant] and [the respondent’s] declaration at this point of openness may be a protective factor for the twins alongside the development of secure and healthy parent-child relationships. In addition to this, the parents have actively sought out other families in similar positions, and if these friendship groups can be continued, there may be some benefit to the twins in connecting to other children in the same position.

33.              Another argument proffered in the discourse on parentage is that a child’s genetic identity forms part of a child’s history. There may be medical advantages in the children knowing their parentage. The donor mother and [the birth mother] and their families will, apparently, be unlikely and/or unable to seek out [the children]. There may be significant class issues separating the families which may well be apparent to the children as they explore their Indian backgrounds further. The twins may realize that their mothers and any half siblings experienced life very differently to them. Again, this is an issue that the parents can assist the children to understand and deal with. (family consultant’s report dated 6 June 2012)

68.              As to the ultimate issue, the family consultant strongly recommended that the           applicant and respondent be awarded equal shared parental responsibility and      that the children reside with them. She was as certain and comfortable as one           can be about predicting the future that the children “will thrive” in the care of the          applicant and respondent. In short, she gave a glowing report about them which             brims with optimism for their and the children’s future together.

69.              Her opinion accords with my own assessment. I am strongly satisfied that the          applicant and respondent are astute to the challenges that lie ahead and as well-    equipped as anybody could be to meet them.”

 

           

Groth & Banks

 

In the third development this year as to who is a “parent” Justice Cronin determined as a matter

 

of statutory drafting that the Family Law Act envisages that there are two biological parents of a child and that unless there is a displacement under the Family Law Act a sperm donor can be a parent.  His Honour determined that a known sperm donor to a single woman was a parent; section 60H of the Family Law Act not applying.

 

His Honour was of the view that the provisions of the Family Law Act overrode the relevant Victorian legislation that declared that the sperm donor was not a parent.  Therefore his Honour did not consider the consent form signed by the sperm donor in which he acknowledged that he was only a donor and not a parent.

 

This decision has sent a shockwave through IVF clinics as it clearly states that known donors in certain circumstances are no longer donors but are parents and that as a result may have rights and responsibilities under the Family Law Act, have a liability to pay child support and their child may have a right of inheritance.

 

I draw your attention to paragraphs 10 to 16 of the judgment:

 

“In Re Mark: An Application Relating to Parental Responsibilities [2003] FamCA 822; (2003) 179 FLR 248; (2003) 31 Fam LR 162; (2003) FLC 93-173, Brown J considered the differing positions of a sperm donor who was unknown or anonymous, and a donor who had entered the process with the intention of fathering a particular child. Her Honour held that a person in the latter position was rightly considered a “parent” for the purposes of the Act. If this were not the case, there would be no need for legislation such as the Status of Children Act 1974 (Vic) to remove the rights and responsibilities that might otherwise attach to anonymous or unknown donors.

 

Brown J reproduced the Oxford English Dictionary definition of a parent, being “a person who has begotten or borne a child”, which was also relied upon in Tobin. In Re Mark, the man had donated his genetic material with the express intention of fathering a child he would parent. Moreover, her Honour found at [59],

            [t]he fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in       utero through sexual intercourse, is irrelevant to either his parental role or the genetic       make-up of [the child].

The applicant here submits that the same course should be taken in this case. His argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life. Concerns of public policy, such as those raised by Guest J in Re: Patrick (An Application Concerning Contact) [2002] FamCA 193 at [298] that unknown sperm donors could be considered “parents” under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.

 

Thus, the interpretation of “parent” in the Act allows each case to be determined on its particular facts.

 

The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law. I return to those exclusions below.

 

Part VII of the Act contains multiple references to the parents of the child as “either” or “both”. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i),

 

61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.

 

The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes.

 

Going back to my earlier analysis, there are three ways of saying who is a parent:

 

·         By genetics;

 

·         By birth; or

 

·         By intention.

 

The approach taken by his Honour was by genetics.  The basis on which the applicant was determined to be a parent relied on genetics.  Nevertheless his Honour distinguished between known and anonymous donors.  It is my view that if a genetics based approach were to be taken then the intention of the donor is irrelevant.  Following the analysis to conclusion, anonymous donors to single women would be considered to be parents because each man is the “biological progenitor” of the child.

 

What this case illustrates as does Blake and Mason & Mason is that consideration should be given in determining who is a parent under a surrogacy ART arrangement the test ought to be  intention of the parties involved.

 

I note that so far as IVF clinics are concerned that there are strict protocols as to evidencing written, informed consent.

 

I remain available to address the Council if asked.

 

 

Yours faithfully

 

 

 

 

Stephen Page

Harrington Family Lawyers