Fertility Society of Australia presentation on moral and ethical dilemmas with surrogacy

On Tuesday I am presenting to the annual convention of the Fertility Society of Australia conference about ethical and moral dilemmas to do with surrogacy. Here is my paper:

FERTILITY SOCIETY AUSTRALIA CONFERENCE

SYDNEY 4 – 7 SEPTEMBER 2013

 

MORAL AND ETHICAL DILEMMAS CONCERNING SURROGACY

– FROM A LEGAL VIEWPOINT

By Stephen Page[1]

 

“What have we got? We’ve got the lot – that’s what.”[2]

 

1.                  Introduction

Surrogacy certainly has the lot.  At its most basic surrogacy may involve a man having sex with a woman so that a child is conceived and she can then give away the child to the man (and the man’s partner).[3]

Since artificial insemination has been used, it might involve IUI again with the child being given away to the intending parent or parents.

More frequently it appears to involve some form or ART, such as IVF in which there is no genetic relationship between the surrogate and the child.  The surrogate has been described merely as “an incubator”.

Surrogacy often also involves, most commonly egg donation.

2.                  Right to reproduce

The United Nations said almost 50 years ago[4] that we all have the right to reproduce. This was said in the context of the rise of the women’s movement and no doubt was said, in 1968, in the context of women having the right to use contraception.  It was said before IVF was invented.  Surrogacy as we now know it would not have been contemplated.

I help about 150 couples (occasionally singles) who are intended parents or surrogate and her partner each year.[5]  When dealing with heterosexual couples undertaking surrogacy[6] or for that matter single women or lesbian couples, it is fair to say that women contemplating surrogacy are infertile.  Surrogacy for them, as it ought to be, is the option of last resort when conception naturally or via IVF, or with the use of donor sperm or donor egg is not likely.

If one were to describe surrogates as a general rule, they are women who:

·         Have had all their children;

·         Don’t want to have anymore, like being pregnant;

·         For whom child birth is pretty straight forward; and

·         Most importantly or all want to give the gift of life to someone else.

 

From a practical point of view surrogates are almost certainly fertile.  For those surrogates who have had children, it is rare that they go beyond a second cycle of IVF.  In discussions with various agency owners in the United States that I have had, it appears this is also common practice in the US.  Typically surrogates are pregnant on the first or second cycle.

 

By contrast, I wonder why it is considered appropriate by some fertility doctors in Australia for intended mothers to be subjected to almost innumerable rounds of IVF.  At some level one can understand that this might have been a requirement before surrogacy was legalised, but the law of diminishing returns would clearly demonstrate that if by the time they’ve got to the fifth or sixth cycle the chances of these women falling pregnant is extremely low.  Some of my clients have told me they have undertaken 12 or even up to 18 cycles of IVF.  I wonder what advice their doctors are giving them that complies with their legal obligations of a duty of care when the doctors have not adequately advised them about the option of surrogacy.  In the US where surrogacy is much more readily available due to the availability of commercial surrogates and paid egg donors, I am told by fertility doctors in the United States and agency owners that it is comparatively rare for women to undertake greater than four or five cycles of IVF.

 

Some of my female clients who are intended mothers who have undertaken many rounds of IVF are clearly traumatised by this process.  It certainly appears to me that greater thought ought to be given by treating doctors and other staff about advising intended parents about the options of surrogacy at an earlier stage than some doctors currently do.

 

Even more concerning is to be told by clients that even though they might have undertaken 15 rounds of IVF their doctor has never discussed with them the possibility of surrogacy.

 

I can understand the concerns of doctors about surrogacy.  Some doctors have a great moral objection to surrogacy.  Well that may be, but these doctors have a legal duty of care to their patients.  Sooner or later a patient may well consider that the emotional trauma and the money spent in undertaking pointless IVF will justify legal proceedings.  Hopefully it won’t come to that, but I am concerned that if doctors fail in their legal duty of care to their patients then sooner or later they will be made accountable.

 

I understand from talking to fertility doctors that there is published research that indicates that after 3 or 4 or 5 cycles of IVF that the chances of a woman becoming pregnant are very low, even as low as 1 per cent.  If this is correct namely that the chances of pregnancy are extremely low and a doctor does not specifically state this to a patient that her chances of falling pregnant are so low but then willy nilly advises her to engage in further cycles without explicitly warning her of the low risk, then it would appear to me that the doctor has breached his or her duty of care to the patient, subjected the patient and her husband to unnecessary, avoidable trauma and stress and in breaching the duty of care could be sued for damages.  Furthermore it would appear that if there is that published research which is readily available to the doctor and for which the doctor may well be familiar; in addition to civil liability, the doctor may well have committed professional misconduct, with all the potential sanctions that flow from that.

 

3.                  Rights to Reproduce – Who can be parents

 

Why is it appropriate, depending on jurisdiction, to determine who can be a parent?

 

In Queensland, New South Wales and Victoria, provided that you are the right age and you have the right residence requirement, you can be a parent under a surrogacy arrangement.  The Queensland Attorney General, Mr Jarrod Bleijie proposed last year to wind back the arrangements in Queensland so that singles and same sex couples could not be intended parents.  It would appear that that proposal is not proceeding.[7]   In the ACT it’s only okay to proceed with surrogacy if you are part of a couple.  In Tasmania there’s no discrimination based on sex, but everyone must come from Tasmania, unless a judge finds some exception the best interests of the child.

 

In South Australia married and de facto couples can proceed with surrogacy, but singles and same sex couples can’t.  In Western Australia married and heterosexual de fact couples can access surrogacy as can single women and lesbian couples, but single men and gay couples can’t.

 

It is likely that these requirements at least as to sexuality and relationship status breach Australia’s human rights obligations.  Why is it ethical for a parliament to say who can and can’t reproduce based on the sexuality or relationship status?  Curiously the Northern Territory has no laws but the effect of that given that Reprimed is the only operator and the inability to change the birth register in the Northern Territory means the people in the Northern Territory have to move interstate or overseas for surrogacy.

 

4.                  Lawyers Helping Surrogacy Clients

 

I undertook my first what was then called custody case in 1985 when I was fresh out of university.  I have undertaken that work ever since then.  Children of my clients from way back then have no doubt formed their own relationships and most likely have had their own children.  It certainly makes me focus, as a long term litigator in parenting matters, as to what impact my acts or omissions have had on children or the next generation or generations of children.  Hopefully I have learned something after all these years.  One of the things that I have certainly is that the research indicates, consistent with what I was seeing in practice, that in general terms the higher the conflict between parents,  the worse the outcome for a child.  It doesn’t matter particularly who is responsible for that conflict in many cases, but it is the perpetuation of that conflict that causes damage, especially long term permanent damage..

 

Unfortunately it appears to me that some of my family law colleagues who dabble in surrogacy don’t get that.  Surrogacy as I explain to clients is a grand voyage of love in which everyone owns the voyage.  In particular the people in the boat are the intended parents, the surrogate and her partner, and the professionals involved in helping including doctors, lawyers and counsellors.

 

As between the lawyers, it is essential that subject to their duty to their clients that they are as cooperative as possible with each other, bearing in mind that they don’t want to set up a child to fail so that there are then 40 years of recrimination.  The aim of the exercise must be to ensure so far as possible, that the process s as sooth and stress-free for the parties as it can be.

 

One of the things that I have learnt time and time again in family law is that when parents are angry about not seeing their child or concerned about child arrangements they might focus on the next week or month.  Long term might be a couple of years down the track.  Extreme long term might be until the child turns 18.  The reality, however, is different.  Dynamics set in place by parents often last well and truly beyond the legal age of majority of a child namely the age of 18.  The dynamics between those parents may last a lifetime for that child.

 

Similarly I believe it is necessary that subject to their own professional duties, lawyers and counsellors and doctors need to work together for the benefit of these clients.  I had the unfortunate experience last year where a counsellor undertook counselling but then refused to write a report and the failure to write the report meant that the intended mother could not obtain a parentage order.  Judge Dick QC, a Childrens Court Judge in Brisbane stated that the failure of the counsellor to write the report was a breach of her professional duty and that consideration ought to be given to that counsellor being reported to her professional association.  Her Honour suggested that a subpoena issue to the counsellor to attend and give evidence but that as an alternative an affidavit was produced to the counsellor so that if the counsellor swore the affidavit, she would not be required to give evidence.  Thankfully the counsellor in those circumstances when met with the subpoena swore the affidavit.  The alternative was quite clear – that if the counsellor had attended by compulsion in accordance with the terms of the subpoena, her Honour would have referred the counsellor to her association so that she could be disciplined.

 

The case was a clear illustration that irrespective of the professional dealings that there may be with relevant IVF clinics (as part of the reason that the counsellor hadn’t prepared a report was because the intended mother had changed clinics, away from the clinic with which that counsellor was associated), there is a duty to the client or patient.

 

In surrogacy matters, it is arguable that in addition to the duty to the client there is also a duty to the proper administration of law and justice and that the failure by a lawyer, counsellor or doctor to recognise that duty may result sooner and later in an adverse outcome to the career of that professional.

 

5.                  The Use of Embryos

 

I am told by American colleagues that it is common in the United States for embryos to remain in storage when no fees have been paid for the storage of the embryos for some considerable time, that the destruction of the embryos might be seen as a heartless act, and when inadequate forms have been used the use of embryos may occur in a way not contemplated by one or both of the intended parents.

 

This is an area that needs to be considered more thoroughly in day to day practice in terms of forms and consents and ensuring that consents are properly informed.  As I have discussed in this paper about lesbian couples moving the eggs from one partner to the other, an assumption that one party is a “donor” may not adequately reflect the dynamics of the relationship of the sperm donor and the intended mother (as seen in Groth v Banks (2013)[8]).

 

Groth v Banks contains some interesting legal and ethical questions.  The parties had been in a de facto relationship.  They split up, even undertaking a financial settlement.  Subsequently the woman employed the man to provide sperm and they subsequently undertook an IVF procedure through a Melbourne clinic which enabled her to become pregnant.

 

Significantly, they told the clinic that they were a couple.  They weren’t.  They lied.  He signed the standard form required by the clinic in compliance with Victorian legislation that he was not a parent but only a donor.

 

Subsequently his new partner found out that he had fathered a child and the man then applied to the Family Court for orders concerning spending time with the child.  Justice Cronin found that the man being one of two biological progenitors of the child and his position had not been displaced otherwise under the Family Law Act (as opposed to say lesbian couples when each would be recognised as parents) was therefore recognised as a parent of the child, especially given that he was a known donor, and therefore determined that by virtue of the Commonwealth Constitution the Victorian Status of Children Act was overridden.  His Honour declined to consider the consent form as he considered it was irrelevant from a constitutional point of view.

 

6.                  The Rise of Illegitimate Children

 

Back in the 1970’s it looked as though we had finally cured the age old curse of illegitimate children, who were seen as bastards and were disowned from entitlement and generally looked down upon.  A fundamental change in the law occurred with the passage of status of children legislation, such as the Status of Children Act 1978 (Qld).  This legislation recognised that children were children – nothing more, nothing less.  The stigma of illegitimacy and of being a bastard child was finally removed.

 

It is an unfortunate outcome that the way in which surrogacy has developed both within and outside Australia has meant that more and more illegitimate children are being conceived and born every day.  This happens in one of three ways:

 

·         Surrogacy need not occur through an IVF clinic.  Traditional surrogacy can happen in a very low tech way.  It may be illegal to engage in traditional surrogacy.  Alternatively engaging in traditional surrogacy may be the type of surrogacy in which the parties chose not to obtain a parentage order.  In either way, a parentage order is not obtained and the presumptions under our laws are that the birth mother (and/or partner if any, subject to Groth v Banks) is the parent.  The intended parents are not recognised.  This could lead to the disinheritance of these children.  The birth records of the children will forever recognise the birth mother and her partner as the parents and their children as these child’s siblings.  Our adoption laws, such as the Adoption Act 2000 (NSW) make private adoptions all too difficult.  There ought to be the means to enable these children to be adopted so that legitimacy is given to them.

·         Intended parents at a great rate of knots have undertaken surrogacy overseas.  A couple of years ago, for example, there were approximately 300 children born through surrogacy overseas and 11 born within Australia.  Almost none of these 300 hundred children would have their parents recognised as their parents as a matter o law and are to all intents and purposes illegitimate in Australian law.  Nevertheless intended parents seeing the difficulties or perceived difficulties in undertaking surrogacy within Australia undertake surrogacy overseas.

 

If we are doing such a great job with the regulation of surrogacy in Australia whey do Australian intended parents vote with their feet and go overseas?  What can we do in Australia to lessen the stampede and reduce the possible exploitation of surrogates, egg donors, intended parents and children in developing countries?

 

Why is it appropriate for each of our States and the ACT to determine eligibility for surrogacy based on the residence of the intended parents?  Australian expatriate citizens who seek to undertake surrogacy in Australia for example with a family member, may be unable to undertake surrogacy in Australia unless at a relevant time they reside in the relevant State.  The test varies.  For example in Victoria and Western Australia an intended parent must reside in that State from the beginning.  In Queensland and New South Wales by comparison one merely only need reside at the time of the making of the parentage order.  Why is that restriction appropriate?

 

 

7.                  The use of egg donors

 

Some women regrettably need the help of a donor egg.  In recent years it has been next to impossible to obtain egg donors in Australia.  I recall 18 months ago attending at an IVF clinic and asking about the delays in the availability of egg donors.  I had been told from a number of sources that the delay was between two and seven years.  The response:

            “If a patient doesn’t bring an egg donor, forget about it.”

Parliaments have seen to criminalise the commercial trade in eggs, sperm and embryos.  This has occurred both at a Commonweal, State and Territory level in all jurisdictions save the Northern Territory.  What is curious about the Commonwealth legislation is that State legislation is complimentary.

 

Section 21 of the Commonwealth legislation has been mirrored in the State and ACT legislation.  Section 21 provides:

 

            “1.       A person commits an offence if the person intentionally gives or offers          valuable consideration to another person for the supply of a human egg, human           sperm or human embryo.

            Maximum penalty: Imprisonment for 15 year.

            2.         A person commits an offence if the person intentionally receives, or offers to                        receive, valuable consideration from another person for the supply of a human                     egg, human sperm or a human embryo.

                        Maximum penalty: Imprisonment for 15 years.

            3.         In this section:

                        ‘Reasonable Expenses’:

                        (a) In relation to the supply of a human egg or human sperm - - includes, but                       is not limited to, expenses relating to the collection, storage or transport of the                   egg or sperm; and

                        (b) In relation to the supply of a human embryo:

                                    (i) Does not include any expenses incurred by a person before the time                                 when the embryo became an excess ART embryo; and

                                    (ii) Includes, but is not limited to, expenses relating to the storage or                                     transport of the embryo.

                                    (iii) ‘Valuable consideration’, in relation to the supply of a human egg,                                human sperm or a human embryo by a person, includes any                                                 inducement, discount or priority in the provision of a service to the                                   person, but does not include the payment of reasonable expenses                                               incurred by the person in connection with the supply.’”

                                    (Emphasis added)

 

Many clients of mine have told me that when it appeared that their eggs were not viable that the doctors have advised them to go overseas to undertake commercial donor contracts.

 

This area alone is replete with moral and ethical dilemmas.

 

The first obvious dilemma is why Australian Parliaments consider that commercial trade in eggs is so bad that it has been criminalised and even worse have been criminalised with a maximum of 15 years imprisonment.  It seems to be an extraordinarily harsh punishment.  One wonders what the mischief is.

 

In the last 12 to 18 months a number of websites have sprung up where egg donors have said to all and sundry that they are prepared to donate.  These women from my limited experience appear to have essentially the same motives as those of surrogates namely that they can give the gift of life to others who cannot conceive children.

 

From discussions with clients and discussions with doctors and related professionals, many doctors are not aware of these websites.  They ought to be.

 

Doctors may feel squeamish in advising their patients of the existence of these websites.  Doctors may be concerned that somehow they have conspired to break the law.  They clearly will not have done so.  The donors who advertise or tell their stories on these websites are not or at least appear not to be commercial donors.  Their motivation is to help others.

 

Each State regulates as to whether donors can advertise.  The legislation had its genesis in a report by the Australian Law Reform Commission about transplants.  It was seen that doctors shouldn’t be seen to be banging the drum to get in to pay people for organ donations.

 

This legislation ought be reviewed given the critical shortage we have in this country as to egg and sperm donors.

 

However there are subtle differences in legislation which can have drastic outcomes.  For example the Queensland and Victorian versions of this legislation have four differences in the drafting of relevant clause, three of which are inconsequential but one of which, comprising four words results in significant difference in practice.

 

The Queensland legislation furthermore in most cases makes a difference between egg donors and sperm donors.

 

7.1       Why egg and sperm donors are different in Queensland

 

Section 41 of the Transplantation and Anatomy Act 1979(Qld) provides:

 

            “A person shall not –

            (a) Publish or disseminate by newspaper, other periodical, book, broadcasting,       television, cinematograph or other means whatever; or

            (b) Exhibit to public view in a house, shop or place; or

            (c) Deposit in the area, yard, garden or enclosure of a house, shop or place;

            An advertisement relating to the buying of tissue or of the right to take tissue from the          bodies of persons unless the proposed advertisement has been approved by the            Minister and contains a statement to that effect.

            Maximum penalty – 10 penalty units or 3 months imprisonment.”

 

The key phrase in the section so far as egg and sperm donors are concerned is:

            “The right to take tissue from the bodies of persons”.

There is no definition of “tissue” in the Transplantation and Anatomy Act 1979(Qld) except a reverse definition contained in section 8, which states:

            “In this part, a reference to tissue shall not be read as including a reference to foetal           tissue, spermatozoa or ova.”

Section 8 is in part 2 of the Act.  Section 41 is in part 7.  Section 8 does not directly apply, but would appear to show an intention by Parliament that “tissue” includes eggs, sperm and embryo.

 

As I said the key phrase in section 41 is “The right to take tissue from the bodies of persons”.

 

It may seem obvious, but sperm is normally supplied after masturbation.  There is   therefore no need to take sperm from the body of a man in most cases.  Therefore the advertising for sperm donors is not prohibited.  The taking of eggs, requires a medical procedure involving aspiration which requires the taking of the eggs from the body of     a woman and therefore there is a requirement I believe by a clinic or doctors if they want to advertise for egg donors to obtain the approval of the Queensland Minister for Health.

 

It certainly seems curious as to why there doesn’t need to be ministerial approval for advertising for sperm donors but there does need to be ministerial approval for advertising for egg donors because one process ordinarily involves masturbation and the other ordinarily involves a minor procedure.

 

What is clear is that there is no prohibition in Queensland to intended parents advertising for egg donors because unless the intended parents are doctors they did not have the right to take tissue.  By law this right to take tissue is limited to doctors.[9]

 

7.2       Banning of Advertising by donors in Victoria

S.40 of the Human Tissue Act 1982(Vic) provides, in almost identical terms to section       41 of the Transplantation and Anatomy Act 1979(Qld):

            “A person shall not –

                        (a) Publish or disseminate by newspaper, other periodical, book broadcasting,                    television, cinematograph or other means whatever:

                        (b) Exhibit to public view in a house, shop or place; or

                        (c) Deposit in the area, yard, garden or enclosure of a house, shop or place –

                        An advertisement relating to the selling or buying of tissue or the donation of                      tissue or of the right to take tissue from the bodies of persons unless the                          proposed advertisement has been approved by the Minister and contains a                    statement to that effect.

                        Penalty: 50 penalty units or imprisonment for 3 months, or both.”

                        (Emphasis added)

 

As you can see, the legislation is almost identical and there are four differences which       I have highlighted, but the key difference is that for some reason in Victoria as opposed to Queensland (I just give these states as examples) the advertising of the donation of tissue is banned.

 

Should Victorian doctors advise their patients of the existence of these websites by which donors “advertise”?  It may be a fine line.  If donors tell a story but do not “advertise” as such then there is no breach of the legislation.  In any case, it is not an offence for a person to respond to an advertiser where the advertiser commits an offence by advertising.  The contacting of the advertiser after the offence which          constitutes advertising is not in itself an offence.

 

It is therefore legal, even in Victoria, for an intended parent to contact an intended donor who has advertised on the web.  However if the intended parent were also to advertise then under the Human Tissue Act the intended parent might be committing an offence.

 

7.3       Monash and World Egg Bank

Monash has entered into an arrangement with World Egg Bank so that altruistic donors, who live in the US, and are counselled via Skype by an ANZICA counsellor, can donate eggs to Australian intended parents.   Monash was able to obtain the approval of VARTA.  It is almost certain       that others will copy what Monash has done. Monash was able to obtain the approval of VARTA.  It is almost certain       that others will copy what Monash has done.

 

7.4       What then was the point of the law?

Monash has been careful in ensuring that it has approval of the State regulator.  There is no State regulator in other jurisdictions, such as Tasmania or the Northern Territory so one might wonder whether the setting up of an egg bank in either of those jurisdictions, for example, might on its face without the imprimatur of a State regulatory authority, be the commission of an offence.

 

7.5       But what of the referral to overseas?

If a doctor is referring a patient to an overseas jurisdiction for an egg donor transaction, where it is a commercial egg donor transaction, is it ethical for the doctor to do so when, for patients engaged in the same transaction in Australia it would almost certainly constitute a criminal offence?

 

I’m certainly aware from talking to clients and colleagues overseas that many Australian doctors say to their female patients to pursue egg donor contracts overseas.  Australians have undertaken egg donor contracts I understand in Argentina, South Africa, India, Thailand and the United States amongst others.

 

More importantly, if a doctor is to undertake the duty of care to her patient and advise them of the possibility of egg donor contracts overseas so that the patient can exercise her right to reproduce, the doctor needs to be aware of the law.  The law varies on this     point from state to state.  Whilst the legislation about the commercial trade in eggs remains the same, criminal law as to jurisdiction varies.  For example the effect of section 10C of the Crimes Act 1900(NSW) is that if part of the offence is committed in New South Wales or the effect of the offence is in New South Wales then        irrespective as to whether the act is perfectly legal somewhere else in the world, the offence is nevertheless committed in New South Wales.

 

It is possible for those undertaking egg donor contracts overseas to do so legally if they come from jurisdictions such as New South Wales, Queensland and Western Australia for example.  In my view no one wants to be the first person prosecuted for an offence in which there is a 15 year maximum term of imprisonment.

 

In my view doctors should tell their patients about the possibility of egg donor contracts overseas however they should do that in a quite qualified way which is to    advise their patients that there may be serious legal issues and to obtain good legal advice.  It is imperative that the doctor records the details on the patients file.  Otherwise the doctor might be committing an offence such as in Queensland - procuring or aiding and abetting or counselling, the commission of an offence or even conspiring to commit the offence.  In New South Wales, for example it might be inducing the commission of an offence. 

 

Sections 12 and 13 of the Criminal Code 1913(WA) are explicit.

Section 12 provides, relevantly:

            “(1)   An offence under this Code or any other law of Western Australia is committed                      if -

                        (a) All elements necessary to constitute the offence exists; and

                        (b) it leads to one of the acts, omissions, events, circumstances or states of                affairs that make up those elements occurs in Western Australia.

              (2)      Without limiting the general operation of subsection (1), that subsection                               applies even if the only thing that occurs in Western Australia is an event,                             circumstance or state of affairs caused by an act or omission that occurs                                outside Western Australia…

Section 13 provides:

            “When an offence under this Code or any other law of Western Australia is             committed, section 7 of this code [principal offenders including those who aid or             enable another to commit the offence or counsel procure them to do so applies to a        person even if all the acts or omissions of the person –

                        (a) Enabling or aiding another person to commit the offence; or

                        (b) aiding another person in committing the offence; or

                        (c) Counselling or procuring another person to commit the offence, occurred                       outside Western Australia.”

 

8.                  But why does it need to be so difficult?

 

In Victoria and Western Australia a State regulator imposes requirements before surrogacy can occur.

 

The criticism of this process, most recently by the Tasmanian Attorney-General who noted that in 4 years there had been 6 surrogacies in Western Australia and that whatever perceived strengths of regulation are outweighed by cost, delay and emotional turmoil for intended parents.

 

An effect of such regulation is that intended parents go overseas, primarily to developing countries.  Is that what is intended?

 

9.                  But it’s all about the money, stupid

 

One of the prime motivators of intended parents who undertake surrogacy in India and Thailand is because the perceived inability to obtain surrogates or donors in Australia but another prime motivator is because of the cost.  It is perceived that the cost in India and Thailand is considerably less than that in Australia for surrogacy.  This cost is not necessarily accurate.  I have raised with clients my concerns about the possible exploitation of surrogates, their being possibly exported by the relevant clinic or agency, lack of quality control issues, the inability to name the intended mother on the birth certificate (in Thai cases), and the inability to know the identity of the donor.

 

Some clients believe that the set and forget model, whereby they engage in a “clinical” transaction involving money while having nothing ever to do whatever again with the surrogate and any donor, is the preferred one.  My own view is that that is a fundamental mistake because it fails to recognise the ongoing need of children to know where they come from.  In my view to clamp down on Australians undertaking surrogacy in those jurisdictions is doomed to failure in that the only practical course that is open is to enable surrogacy to be more available in Australia and restrictions in relation to advertising for surrogacy, and donors and paying surrogates and donors be removed.

 

What was singularly telling to me about public attitude towards surrogacy was demonstrated by the media in Queensland in 2012.  Contrary to the position taken by Campbell Newman at the previous State election that there would be no change to the surrogacy laws, the Attorney- General Mr Bleijie announced that the Surrogacy Act should be amended so that singles and same sex couple would not be entitled to undertake surrogacy.  With rare exception, the media to my surprise took a cudgel to the government for removing this right i.e. the right to become a parent.  The government was very much portrayed in the media as the fall guy. 

 

10.       Cherishing the Surrogate

 

In our society we consider that to impose childcare burdens on grandparents is often unduly onerous and that the use of child care facilities is not only appropriate but we wouldn’t dream in our society of having child care facilities where the carers were unpaid.  Nevertheless at the time of the creation and gestation of the child we consider it entirely appropriate that the surrogate be unpaid.  It is considered obscene that she’d be paid.  If we were to truly cherish her, as we do with child carers, we would ensure that she is paid.  It doesn’t have to be a huge amount and the US experience is that it isn’t a huge amount but she ought to be properly compensated for the risks to her and her family of carrying a child to term.

 

What is clear to me is that in talking to my American colleagues, the prime motivation of surrogates in the US is to help others.

 

For surrogates in South Australia and Victoria, the only conclusion that can be drawn is that they are truly non-valued at all.  There is still a risk of death or permanent injury for a woman undertaking surrogacy.  If we were to truly cherish the role of a surrogate we would ensure that she has adequate insurance namely health insurance, disability insurance and life insurance. 

 

10.1     South Australia

 

In South Australia the Family Relationships Act 1975 (SA), s10HA provides at (2)(ix):

            “The agreement states that no valuable consideration is payable under, or in respect          of, the agreement, other than for expenses connected with –

                        (A) A pregnancy (including an attempt to become pregnant) that is the subject                                 of the agreement; or

                        (B)  The birth or care of a child born as a result of that pregnancy; or

                        (C)  Counselling or medical services providing a connection with the                                               agreement (including after the birth of a child); or

                        (D)  Legal services provided in connection with the agreement (including after                                the birth of a child); or

                        (E)  Any other matter prescribed by the regulations for the purposes of this                          provision.”

 

The Family Relationships Regulations 2010 (SA) do not make any allowance for life or disability insurance.  It is arguable that health insurance is covered in South Australia, but to make payment of life insurance for the surrogate or for her disability insurance would mean that the agreement is not one that falls within section 10HA  of the Family Relationships Act and therefore would mean that the surrogacy arrangement would be one in which a criminal offence was committed, which has a maximum penalty of $4000 or imprisonment for 12 months.

 

10.2     Victoria

 

Section 44 of the Assisted Reproductive Treatment Act 2008 (Vic) provides:

 

(1)   “A surrogate mother must not receive any material benefit or advantage as the result of a surrogacy arrangement.  Penalty: 240 penalty units or 2 years imprisonment or both.

(2)   Subsection (1) does not prevent a surrogate mother being reimbursed for the prescribed costs actually incurred by the surrogate mother as a direct consequence of entering into the surrogacy arrangement.

(3)   To the extent that a surrogacy arrangement provides for a matter other than the reimbursement for costs actually incurred by the surrogate mother the arrangement is void and unenforceable.”

 

Section 10 of the Assisted Reproductive Treatment Regulations 2009 (VIC) then sets out those prescribed costs.  In essence if costs incurred by a surrogate aren’t for prescribed cots then the offence is committed.  Section 10 provides:

 

            “For the purposes of section 44(2) of the Act, the following costs are prescribed –

(a)   Any reasonable medical costs associated with the pregnancy or birth are not recoverable under Medicare, health insurance or another scheme;

(b)   Any legal advice obtained for the purpose of section 43 (c of the Act;

(c)    Travel costs related to the pregnancy or birth.”

 

There is nothing in there about loss of income if the surrogate is unable to work due to health complications with the pregnancy.  There is nothing there about child care costs or travel costs to come to and from Court or to doctors but above all if a person pays for disability insurance or life insurance for the surrogate then a criminal offence is committed.  This is a terrible message that Victoria gives to its surrogates about how they are not valued and it is…

 

11.       Lesbians behaving badly

 

Although it is probably not surrogacy (it certainly is not under the Surrogacy Act 2010(Qld), although I have not checked in the respective other States), it is becoming more and more common both here and overseas, particularly in the United States, for one lesbian in a same sex relationship to provide her eggs to be implanted in the other woman so that they are both the mothers of the child, one being the birth mother and the other being the genetic mother.

 

In my view this is a procedure that is potentially fraught with difficulty.  If one were to look at the National Health and Medical Research Council, Ethical Guidelines, then this would appear on its face to merely be a donor arrangement.  Merely to be a donor arrangement I consider would be a mistake.  The dynamics of this arrangement, namely eggs from one implanted in to the other and the child then being born are such that if and when such a couple separate there is a real risk about who is considered to be the parent.  Certainly as a matter of law each would be considered to be the parent both under the Family Law Act 1975(Cth) and the State and Territory legislation.  However, the dynamic of the couple is that as I have seen in cases of warring lesbians in the Family Court that the woman who gave birth may consider herself the mother and the other woman not to be the mother.

 

I had the benefit recently of talking to US colleagues about this arrangement.  They had similar concerns to me, which commenced with the language of how each of the women were described.  For example in a donor arrangement one would be considered to be the mother and the other would be the donor.  It would be wise in considering the donation forms of such an arrangement that the clinic does not merely identify one as the donor and the other as the parent as this may lead to a disempowering of the genetic mother.

 

It was also identified by my American colleagues that it is only a question of time when/if the couple split up and the genetic mother is treated less than being a mother that she will seek recourse, especially against the IVF clinic who treated her merely as a donor.

 

So as to minimise legal risk, aside from a reconsideration of the forms used in these particular arrangements, the women should obtain independent legal advice and that the clinic should not proceed unless they have a brief letter from a lawyer indicating that that independent legal advice was given to the women about the proposed process.

 

Given the general nature of the advice that is given, and the intention of the parties to act together, I don’t see a difficulty at this stage in one lawyer giving advice to both women.

 

My American colleagues were quite clear that this is an area that may well be prone to litigation in which claims will be made sooner or later against IVF  clinics and that part of the concern is that one of the women at least did not go into the transaction fully informed and was misled by the doctors or the clinics involved.  Getting that independent legal advice should hopefully change that.

 

12.       Undertaking surrogacy overseas

 

We have a curious state of affairs in Australia whereby we have 9 methods of regulation of surrogacy namely 8 for the States and Territories and some incidental regulation of surrogacy at a Commonwealth level.

 

This regulation of surrogacy has many dilemmas and conundra.  For example the effect of the Parentage Act 2005 (ACT) is that to obtain a substitute parentage order a couple must have had the treatment in the ACT.  Why should they be prevented, for example, obtaining treatment anywhere else in Australia, or in the world if the scheme of the legislation is to allow altruistic surrogacy?

·         The same legislation specifies that the intended parents must be a couple and the surrogate must be part of a couple.  Why?  Why can’t the surrogate be single?  Why can’t an intended father or mother be single?  It is questionable in light of the Sex Discrimination Act (Cth), section 22 and the decisions of McBain and Pearce that this provision is constitutionally invalid.  Why does it remain?

·         Why is that in effect those living in Victoria, South Australia and Western Australia must have treatment in those respective states?  Why can’t intended parents have treatment in New South Wales, for example, in one prospective matter I had last year (which ultimately has not proceeded) I acted for the intended parents who lived in Queensland.  The intended mother’s sister (who was to be the surrogate) lived in Wollongong.  My clients understandably wanted the treatment to occur in New South Wales.  Under the model in Western Australia, South Australia, ACT and Victoria this would have meant on an equivalent basis that a parentage order could not have been obtained in those respective States.  That’s crazy.

·         Why is it the case in Tasmania with a population of 500,000 people that the general rule is that all parties must come from Tasmania?

           

Why is it the case that three Australian jurisdictions make it an offence to engage in commercial surrogacy overseas[10] but the other five don’t?  The effect of these laws, which seemingly have never been enforced, has meant that intended parents from those jurisdictions have:

·         Decided to proceed with commercial surrogacy overseas but done so knowing that they had committed an illegal act for which they could be prosecuted, but were flying under the radar hoping to take the chance that they would not be prosecuted.

·         Undertaken altruistic surrogacy in Australia and been able to find a surrogate and if necessary an egg donor to facilitate that.

·         Moved interstate so they could go overseas from that other jurisdiction.  I have had clients move from Queensland to Victoria, Western Australia and the Northern Territory.  I have had clients from New South Wales move to Victoria, Western Australia and the United States.

 

An example of the absurdity of the laws on point was the couple in New South Wales who went to India for surrogacy.  They lived close to the Victorian border.  They rented a home in Victoria that was 20 minutes away from their work and commuted each day.  It seemed to point out the absurdity of the New South Wales law.

 

What has been put to me by New South Wales and Queensland politicians about why there is this overseas ban is because it was designed to protect women in third world countries from exploitation.  Of course the ban is much wider than that.  It criminalises those seeking to undertake surrogacy in the United States.  There are fewer things more absurd than when I’ve said to the owner of a surrogacy agency in the United States that the purpose of the ban was to stop the exploitation of women, for her to respond that she was a feminist and that she was absolutely opposed to the exploitation.  It became more absurd when I pointed out that it was to avoid the exploitation of women in developing countries and at the same time I noticed a Matisse on the wall, and looking out her office window there was the Hollywood sign in the background.

 

There appears to be little argument by politicians that commercial surrogacy in the United States is well regulated, that women are not exploited, that intended parents are not exploited and neither are the children, and yet the laws remain in the three jurisdictions on the statute books.

 

13.       Who is a parent

 

Of the two forms of words that are used “commissioning[11] parents” and “intended parents”, I prefer the latter.  I do so for two reasons:

·         The latter is the internationally used term; and

·         Commissioning parent implies some sense of ownership over the baby and of the surrogate whereas intended parent sets out that it is their intention to become parents and nothing more.  I consider it a more neutral term.

 

When a couple has sex which result in the conception and birth of a baby, the law is quite clear in Australia that they are the parents.

 

Laws that were designed for IVF seem to fail the test when it comes to surrogacy.  The law in this area is quite simply a mess.  Currently there is an enquiry being undertaken by a statutory body, the Family Law Council, as to the definition of “parent” as to who is a parent under the Family Law Act and under relevant corresponding State legislation.  The Family Law Council was asked to enquire by the then Attorney-General Nicola Roxon and is due to report by the end of the year.  Who knows what the Council might recommend and what action if any the then Federal Government might take.  It is highly likely that the Federal Government will need to have cooperation from the states for amendment of State legislation.

 

In broad compass there are three ways to define who is a parent.  Each of them have quite different outcomes.  One might think that the intended parents under a surrogacy arrangement are the parents, but the outcomes can be quite different.  The three ways that someone can be recognised as a parent are:

 

a.       By birth.  This is the test that is used for the donor legislation, such as under the various Status of Children Acts.

b.      By genetics.  This is the usual test applied by the Department of Immigration and Citizenship to determine citizenship for the purposes of section 16 of the Australian Citizenship Act 2007(Cth).  The department has issued Australian citizenship instructions as of January this year in which there is heavy emphasis on a DNA link between the intended parent and the child.

c.       By intention. This is the approach that the Federal Court has said is one of the approaches that ought to be taken under the Australian Citizenship Act and is also the approach taken by a Judge recently.

 

This area is an absolute minefield and makes my head spin.  I’m on top of what’s required but I feel sorry for any intended parent going through the minefield.  To give you a brief synopsis:

·         In 2010 the Federal Court held[12] that two Australian men were parents of children even though they were not genetically the parents.  Neither was a surrogacy case.  In the first case an Australian man met a Chinese woman on line.  She was already pregnant to a Chinese man.  The Australian man agreed to marry the Chinese woman and to raise the child as his own.  They married.  He was shown on the birth certificate as the father.  The Federal Court held that he was the parent of the child.  In the Fijian case an Australian man 33 years before was told by a Fijian woman that he was the father of her unborn child.  When the child was born, blood tests were undertaken (his DNA was then unavailable).  He was the same blood type.  The Australian man went home to Sydney and told his wife that he had fathered a child.  They stayed together.  He paid child support.  He and his wife and their children visited the child from time to time and she came to Sydney regularly.  All were shocked when two DNA tests were undertaken which determined that he was not the father of  his daughter.  It turns out that the mother was having sex with another man believed to be an Australian citizen who had since died.  In all of the circumstances the Federal Court said if this man were not the parent who was?  The Federal Court determined that he was the parent of the child.

 

In 2001there were four decisions by Justice Watts in the Family Court.  These concerned Australians who had undertaken commercial surrogacy in Thailand.  Aside from referring two Queensland couples to the DPP for possible prosecution, his Honour questioned:

·         Whether someone was a “parent” of a child if they had engaged in an illegal act, for example entering into a commercial surrogacy arrangement.

·         Whether anyone other than the surrogate and the surrogate’s husband (if any) was the parent having regard to status of children legislation.

 

In 2012 Justice Ryan determined a test case concerning international surrogacy.  Her Honour rejected the approaches by Justice Watts and instead relied on the Sex Discrimination Act overriding Queensland’s Status of Children Act.

 

Her Honour also considered that it was inappropriate to refer the intended parents to the DPP because that would have an adverse impact on the child.  Which is better, to ensure that the law is complied with and that miscreants prosecuted, or to ensure that children are protected because if their parents are prosecuted that may well have an adverse impact on the children?

 

Move forward to January this year when Justice Crisford in Western Australia took a different approach.  Her Honour noted that the intended parents were not parents under the that State’s Artificial Conception Act, because that would mean that the surrogate and her husband were the parents but said when one looked at all of the circumstances of the case and the reality, i.e. the demonstrated intention of the intended parents, they were the parents. Justice Ryan more recently in June held that her approach last year was wrong and that the State Status of Children legislation formed part of a scheme with the Family Law Act applied[13] therefore the intended father was not a ”parent” under the Family Law Act.

 

Most recently in Groth v Banks Justice Cronin held that a known sperm donor to a single woman was one of two biological progenitors under the Family Law Act and as his position was that no other was displaced by other provisions of that Act then he was a parent of the child and that therefore the Status of Children Act (Vic) was overridden by virtue of the Commonwealth Constitution.  His honour declined to consider the form signed by the donor which said that he was merely a donor and not apparent.

 

If his Honour’s reasoning is correct, there appears to be some difference between known donors and anonymous donors.  However, if it be the case, as his Honour has determined, that a man is a parent of the child by virtue of genetics, then, whether he is a known or anonymous donor is surely irrelevant.

 

It must be noted that the effect of Groth v Banks, because of the nature of statutory drafting only applies to sperm donors to single women.  It does not apply to sperm donors to couples (including lesbian couples) and it does not apply to egg donors.

 

It has been 30 years since the Courts of California determined that who was a parent under a surrogacy arrangement was the person who intended to be the parent irrespective of genetics.  The sooner that we in Australia get to that point, the better.  Example of absurdity: 

 

 

George and Martha live in Sydney and are intended parents who want to have a baby.  Martha’s sister Abigail is happy to be the surrogate.  She and her husband John live in the United States.  The surrogacy arrangement is a New South Wales surrogacy arrangement.  The intention is for Abigail to give birth in New South Wales.  If she does so then a parentage order will be made in the Supreme Court of New South Wales which will alter the birth registry in New South Wales.  George and Martha will be recognised for all purposes under Australian law as the child’s parents.

 

If Abigail cannot for medical reasons travel back to Australia, but gives birth in the United States, then an order will be made in the United States transferring custody from John and Abigail to George and Martha.  A birth certificate will issue showing George and Martha as the parents.  Although George and Martha will be the “parents” for the purpose of the Australian Citizenship Act 2007 if following the approaches of Justice Watts and Justice Ryan George and Martha will not be the parents for any other purpose.  The US order will not be recognised in Australia for most purposes.  The birth certificate is not formally recognised in Australia.  If George and Martha do not have an adequate will, they will in effect disinherit their child.

 

Nevertheless:

·         George and Martha will be able to obtain Centrelink Benefits (if available)

·         The child will be entitled to a Medicare card

·         They will be able to rely on the birth certificate to ensure that the child is registered at school

·         The child will be able to be taken to hospital in the middle of the night.

 

14.       Rights of adults v rights of the child

The question is whether the rights of those who are desperate to have children somehow override or are indeed in conflict with the rights of the child conceived out of that same transaction.  The United Nations International Convention on the Rights of the Child (1990) states:

            “The child, for the full and harmonious development of his or her personality, should          grow up in a family environment, in an atmosphere of happiness, love and           understanding.”

Article 2 provides that the rights to each child be provided:

            “without discrimination of any kind, irrespective of the child’s or his or her parent’s            or legal guardian’s race, colour, sex, language, religion, political or other opinion,        national, ethical or social origin, property, disability, birth or other status.”

In Article 3 the convention provides:

            “In all actions concerning children, whether undertaking by public or private social            welfare institutions, courts of law, administrative authorities or legislative bodies, the      best interests of the child shall be of primary consideration.”

Article 5 provides:

            “States Parties shall respect the responsibilities, rights and duties of parents or,       where applicable, the members of the extended family or community as provided for          by local custom, legal guardians or other persons legally responsible for the child, to      provide, in a manner consistent with the evolving capacities of the child, appropriate     direction and guidance in the exercise by the child of the rights recognized in the     present Convention.”

Article 7 provides relevantly:

            “The child shall be registered immediately after birth and shall have the right from             birth to a name, the right to acquire a nationality and, as far as possible, the right to       know and be cared for by his or her parents.”

Article 18 provides in part:

            “States Parties shall use their best efforts to ensure recognition of the principle that             both parents have common responsibilities for the upbringing and development of the child.  Parents or, as the case may be, legal guardians, have the primary   responsibility for the upbringing and development of the child.  The best interests of             the child will be their basic concerns.”

 

15.       Are we really buying and selling children?

Are we in the process of bringing children into existence for those who desire children in reality buying and selling children?  When I recently wrote to other lawyers about a proposed Hague Convention as to international surrogacy, one responded:

            “Any such convention will likely legitimise practices that will be discouraged.  I       wonder what the world would be like today had there been a Hague Convention       legitimising the trans-Atlantic triangular trade between Europe, Africa and the            Americas in the centuries following 1492.” 

            For instance, would William Wilberforce have succeeded had there been a convention        providing for the humane treatment of the stock whilst in transit?  I doubt there would            have been the political will.

            I have grave concerns that those who have caused, facilitated or encouraged the birth         of anyone of the 1400 children to whom you refer [approximately 1400 children being          born over 3 years overseas to Australian intended parents] can have at any stage         acted with a sufficient focus on the interests of the child when born.  I have equally    grave concerns the legitimate interests of the single ‘gestational carrier’ are such that         they can never be properly respected in the context of a market.

            Essentially I do not adhere to the view that the existence of a demand is of itself a    sufficient justification for a civilised society to facilitate the supply within a market,         particularly one that enables others to profit from their peripheral involvement as       facilitators of the trade.  I also think that those who seek to develop a presence in that             market are ill-placed to guide the development of policy and that anyone who is in a           position to so profit should always fully declare that interest when seeking to win             from such policy.”

It might be noted that I give advice to intended parents and surrogates and their partners in relation to surrogacy matters.

 

The concern has also been put to me that surrogacy is essentially a giant experiment, in that by the use of IVF and willing surrogates, whether altruistic or commercial, children are being created in the most complex of circumstances and that therefore there is a risk that we are setting those children up to fail.

Certainly having acted for over 25 years undertaking family law particularly in parenting matters, I want to avoid setting children up to fail and I believe that it is essential that we identify the needs of children (unless those of the adults involved) so that some of these dilemmas can be identified and hopefully resolved.

 

16.       Medical or Social Need

It has been suggested that intended parents want to have children because in the case of women they don’t want to ruin their career or their figure.

That hasn’t been my experience.  The fundamental desire of those who are intended parents is that they wish to have children.  This desire is no different from those wanting to form a family by more conventional means.  The desire is the same whether it is a heterosexual married couple, heterosexual de facto couple, a gay or lesbian couple or single man and woman.

The desire to have children and raise a family is a fundamental one for many of us.  As I said above it is such a fundamental right that it has been recognised as a right to reproduce.

Of the hundreds of clients that I have seen have undertaken or intend to undertake surrogacy, none have ever suggested to me that it is for the desire to save a figure or to keep a career alive.  Surrogacy has been seen by all my clients as the option of last resort.  For single men and gay couples, as a matter of biology surrogacy is in reality their only option to become parents.  For them it is much less of a leap into the unknown.  They have little choice.

There certainly seems to be at times a very fine line as to when doctors judge there to be a medical need for surrogacy.  Speaking as a lawyer, not a doctor, I wonder the processes that are involved.

Surrogacy Act 2010 (NSW) Section 30 provides that there must be a medical or social need for the surrogacy arrangement.  A women needs to be an eligible woman.  An eligible woman is defined as a woman who:

a.       is unable to conceive a child on medical grounds; or

b.      Is likely to be unable, on medical grounds, to carry a pregnancy or to give birth; or

c.       I unlikely to survive a pregnancy or birth, or is likely to have  her health significantly affected, or is likely to have her health significantly affected by a pregnancy or birth; or

d.      If she were to conceive a child:

                                i.            Is likely to conceive a child affected by a genetic condition or a disorder, the cause of which is attributable to the woman; or

                              ii.            Is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy The or birth.

 

The test in Western Australia is a woman who:

·         Is unable to conceive a child due to medical reasons aside from her age or not because of her having or the child would otherwise be likely to be affected by a genetic abnormality or a disease or is unable to give birth or is unable to conceive a child due to medical reasons

 

I just want to focus here on the word “likely”.

 

The leading case on what the word “likely” means is a decision from the Federal Court of Tillmans Butcheries Pty Ltd v Australasian Meat Industry and Employees’ Union (1979)[14].   This is a decision of the full Federal Court comprised of Chief Justice Bowen and Justices Evitt and Deane (which he then was).  The Chief Justice stated[15]:

 

            “The word ‘likely’ is one which has various shades of meaning.  It may mean          ‘probable’ in the sense of ‘more probably than not’ – ‘more than a fifty per cent           chance’.  It may mean ‘material risk’ as seen by a reasonable man ‘such as might           happen’.  It may mean ‘some possibility’ – more than a remote or bare chance or, it     may mean that the conduct engaged in is inherently of such a character that it would          ordinarily cause the effect specified.”

 

His Honour did not conclude what he considered to be the meaning of “likely”. 

 

Justice Deane stated[16]:

 

            “The word ‘likely’ can, in some context, mean ‘probably’ in the sense in which that            word is commonly used by lawyers and laymen, that is to say, more likely than not or    more than a fifty per sent chance… it can also, in an appropriate context, refer to a        real or not remote chance or possibility regardless of whether it is less or more than     fifty per cent.  When used with the latter meaning in a phrase which is descriptive of            conduct, the word is equivalent to ‘prone’, ‘with a propensity’ or ‘liable’.  When so       used it is sometimes equated with the concept of foreseeability in the law of       negligence.  Thus, if I fire a rifle through drawn curtains into a quiet lane in a country             village, it is not likely, in the sense of more likely than not for an odds-on chance, that          I will injure anyone.  It would, however, be difficult to deny that there was a real                         chance of possibility (or likelihood in that sense) that an occasional passer-by would      be wounded by the bullet.  Plainly, the act of firing a rifle through drawn curtains into    a lane used by pedestrians would be an act which was, in the circumstances, prone or             liable (likely in that sense) to cause injury to a passing pedestrian”. 

 

His Honour then went on to express the view in respect of the legislation and was considering that “likely” meant that there was a real chance or possibility that New South Wales could repeal in Harika v Stanley Tupaea (2003)[17] in following Justice Deane in Tillmans stated:

 

            “The word ‘likely’ must be construed in context.  It does not always require proof or           persuasion to a probability greater than 50 and the per cent ... the court is involved in          a predictive exercise.  In analogous’ context judges have favoured the broader       sense of ‘a real and not a remote chance or possibility, regardless of whether it is less          or more than 50 per cent’”.

 

A similar approach was taken by the Western Australian Court of Appeal in Dwyer v Movements International Movers (WA) Pty Ltd (2000)[18].  Similarly Justice French as he then was took a similar approach in the Federal Court in Smith on behalf of the Gnaala Karla Booja People v State of Western Australia(2001)[19].

 

A similar approach was then taken by the Queensland court of Appeal in Mirvac Queensland Pty Ltd v Wilson(2010)

 

 

17.       Conception

            When is a child conceived?

 

I had the privilege last year to act for the surrogate in a case in which a world precedent was established as to what constitutes conception.  Judge Clare SC held in LWV v LMH (2012) QChC 026:

“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.”

In April 2013 I presented at the American Bar Association Family Law ART Stream in Anchorage, Alaska.  I included a reference to this case as defining when conception occurs.  An Alaskan attorney came up to me and vigorously debated with me as to what constituted conception.  He was adamant that conception was at the date of fertilisation namely at cell division.  He stated quite clearly that that was when life began even though it might be suspended animation with an embryo being frozen.

 

It may well yet be the case that there are other cases in which judges take a differing view to that of Judge Clare.  We will have to wait and see.

 

 

18.       Whose child at the hospital?

 

It would appear that ordinarily the child when born will be considered to be the child of the surrogate and her partner.  To transfer parentage means that at some later stage a parentage order is made.  The traditional approach of hospitals has been that the child does not leave the hospital until the birth mother leaves as she is the legal mother of the child.  At some level there appears to be a wilful blindness on the part of hospitals as to the role of intended parents.  Some hospitals I am told refuse to undertake surrogacy work because it is against the teachings of their church.  By contrast other hospitals, for example the Mater in Brisbane, have actively embraced surrogacy, so as to ensure the children are properly cared for.

 

Nevertheless, we have the curious event occur when the child must remain in the hospital until the birth mother leaves and then there is a changeover in the hospital car park between the birth parents and the intended parents.  This does not seem to be a particularly child focussed way of going about business.  Surely we can do better.

 

An example of a change of heart was seen in a case involving clients of mine who were the birth parents.  They lived in a regional city and the birth was to occur at the base hospital in that regional city.  I was told in advance that the hospital would not be accommodating of the intended parents.  I spoke to the head of maternity and was told by her that the hospital “would not discriminate” and that there were “accommodation issues” and that my client “is the mother”, not the intended mother.  Therefore, I was told the intended mother could only attend the hospital during visiting hours.  She would get all the lessons in bathing, feeding, changing the child etc, but as she was not the parent as a matter of law, she could not stay any longer than those visiting hours.

 

One might be well concerned about the potential attachment of the child and an adverse impact on that child by having such limited contact with its mother in the first few days after being born.  Nevertheless the head of maternity was quite clear with me that there would be no change.

 

Curiously reality intervened after the child was born.  The hospital had previously not had a surrogacy matter.  The midwives realised that this was a magical event.  They excluded my client, who had just given birth to the child, from the care of the child and made accommodation available for the intended mother.  My client stayed five days in hospital.  The child left with the intended mother after 2 days.  This was with the blessing of all parties.  There was no hospital car park changeover.

 

 

19.       Magical Rules v Legal Rules

 

In addition to whatever rules might be specified by law, some clinics have come up with their own rules specifying when they will help or not help intended parents.  For example:

 

·         Where traditional surrogacy is legal, some clinics will not undertake traditional surrogacy because in line of the Baby M case and Re Evelyn, they consider that traditional surrogacy by its nature is inherently risky.  Whilst traditional surrogacy has some risks, recognised as long ago as Genesis, it may be appropriate in certain cases.  Traditional surrogacy after all was the genesis of what is now the commercial surrogacy industry in the United States.  I’m told by colleagues from the United States that traditional surrogacy currently represents 5 per cent of the market there.  Clearly there is still some demand for traditional surrogacy and one wonders why, with adequate safeguards, treatment is merely refused.

 

·         Similarly there is a rule with some clinics on requiring a 1 or 2 year pre-existing relationship between the intended parents and the surrogate or the intended parents and the donor.  This is based on the theory that a pre-existing relationship will be inherently more stable.  This hidden rule means that intended parents who may be able to locate a surrogate are otherwise declined to undertake surrogacy or even donation in their home jurisdiction and may be forced in effect to go interstate or overseas for surrogacy, and possibly undertaking surrogacy as a result in a developing country.  Is this ethical?

 

The two most difficult surrogacy arrangements that I have experienced were when each of the parties knew their surrogate for 14 years – the surrogate in each case being an old friend.  There were a number of relationship complications in each case, but the overwhelming feature in each case was that at least one of the intended parents treated the surrogate as though she were merely undertaking a job and not performing the miracle of the gift of life.  I would suggest that instead of there being a proscriptive rule about the numbers of years of having known a surrogate or a donor which may exclude people unnecessarily from undertaking egg donation or surrogacy that a better approach by clinics would be to ensure that the counselling report that is obtained before the donation occurs or the surrogacy occurs is a thorough one.  IVF clinics are entitled to rely on those reports.  Presumably the report writer will either recommend in favour of the proposed surrogacy arrangement, or against it or recommend that it proceed subject to certain conditions.

 

 

20.       Hague Convention

 

The Hague Conference on Private International Law has called for responses from member nations including Australia and from members of the legal profession as to feedback to be taken into account as to the proposed outcomes as there have been discussions within the conference about the possibility of there being a Hague Convention on International Surrogacy.  One model that has been put forward about such a process equates surrogacy with adoption and proposes that before there can be any international surrogacy the intended parents must meet certain unstated criteria and that all proposed international surrogacy arrangements be approved by Central Authorities much as in the same way as international adoptions.

 

There is vigorous debate about the form of any such convention.  I for one am on the record in saying that surrogacy should not be conflated with adoption – the two are essentially dissimilar and that to require the pre-screening to occur will almost certainly discriminate against gay men and singles, and that to engage in the process involving Central Authorities will not only lead to a higher cost to tax payers but worse outcomes for intended parents.  Australian intended parents through adoption wait 8 – 10 years, if they’re lucky and the situation is getting worse.  By contrast those undertaking surrogacy wait 18 months to 2 years.  What will be the effect if a convention is passed in that form on those intended parents and on the children conceived and born through that process?  Certainly there is lobbying being undertaken at the moment.  I hold a position as one of two international representatives on the Assisted Reproductive Treatment Committee of the American Bar Association and I have been charged with the responsibility of creating a position paper for the American Bar Association to do with The Hague.  That paper which is only in draft proposed a much more liberal approach involves the use of Courts in each member state and by virtue of international comity, the recognition internationally of those decrees.

 

Conclusion

 

Although surrogacy in some forms in its traditional form has been around since the time of Genesis, the practice of modern surrogacy in Australia is new since about 2004.  Much of the time those professionals who are involved with surrogacy have never come across it previously and are scratching their heads as to what to do.  It is likely that there will be continuing challenges about approaches with surrogacy and that these challenges will remain for many years to come.

 

As a country we can do better – for the intended parents, the surrogates and their partners and especially for the children.  The sooner we embrace change to properly recognise the right to reproduce, and cherish the roles of surrogates the better.

 

Stephen Page

Harrington Family Lawyers

 

 30 August 2013

 

www.harringtonfamilylawyers.com

Phone: 07 3221 9544

Fax: 07 3221 9969

spage@harringtonfamilylawyers.com

 

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[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane.  He was admitted as a solicitor in 1987, has been an accredited family law specialist since 1996 and is author of the Australian surrogacy and Adoption Blog.

[2] Advertisement for the now defunct Paddy’s markets in Brisbane, 1980’s

[3] Such as in Genesis with the story of Abraham, Sarah, Haggar and Ishmael.

 

[5] Most of these are seeking advice as to surrogacy overseas but some are intended parents seeking to undertake surrogacy in Australia.  Some are Australian expatriates seeking to undertake surrogacy in Australia. Lf the numbers from 2011 are an accurate reflection of the current number of people undertaking surrogacy, approximately one third of all Australians undertaking surrogacy are seen by my office.  In 2011 approximately 200 Australian born through surrogacy in India, 45 in the United States, 45 in Thailand and 11 in Australia.

[6] Or for that matter single women or lesbian couples

[7] According to a Brisbane Times report in April 2013.  The writer has an interest in the matter having been the convenor of Queenslanders for Equality, a lobby group opposed to the proposed change.

[8]

[9] See Transplantation of Anatomy Act 1979(Qld), s.48; Criminal Code 1899(Qld)s. 282

[10] ACT, New South Wales and Queensland

[11]

[12] HB Minister for Immigration

 

[14] [1979] FCA 85; (1979) 42 FOR 331

[15] Commencing at [34]

[16] Commencing at [10]

[17] [2003] NSW CA 332

[18] [2000] WA SCA 75

[19] [2001] FCA 19