Sunday, 27 October 2013
Thursday, 24 October 2013
With absolute predictability, the Abbott government will challenge the laws in the High Court. What is uncertain is whether the laws will survive the challenge in the High Court, as I have blogged before. There has been a lot of speculation in the media, as long ago, in respect of mooted Tasmanian laws on this point, as 2008. The reality is that we don't know. It will be up to the seven members of that court to decide. I thought the position was summed up well by one academic, who said: 50/50.
Commonwealth Attorney-General George Brandis is seeking that the High Court deal with the matter urgently. He will no doubt be concerned that delays might not prevent the inevitable (at least in a political sense): the longer that it might take the High Court to decide as to the laws, the potential for more and more people to get married. It is then a bad look for any politician to be removing the rights of hundreds of people who that they had engaged in a valid marriage.
We saw that happen in California.
If for some reason the challenge does not get up, then the Abbott government still has a political fix. If it can persuade the Senate after Clive Palmer controls it in July to pass legislation to override the ACT's laws- then voila!- the laws can be overcome.
Wednesday, 16 October 2013
In Carlton and Bissett, Mr Bissett was both a South African and Israeli citizen. He pursued an altruistic surrogacy in South Africa, where it is legal. A surrogacy arrangement was signed and a South African judge then made an order which meant that when the children were born that Mr Bissett was the sole parent of the children, the surrogate relinquishing her rights.
Following the order being made, medical treatment started and the children were then conceived.
During the course of the pregnancy, Mr Carlton, an Australian resident but originally from South Africa, happened to be visiting South Africa, when he met Mr Bissett. They fell in love and became an item.
Justice Ryan held that the question of whether Mr Bissett was a parent was:
Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.
Her Honour then said that under South African law Mr Bissett was the parent.
After examining the labyrinth under the Family Law Act as to whether Mr Bissett was a parent, her Honour made a declaration of parentage in favour of Mr Bissett:
It will be apparent that I have accepted that Mr Bissett is able to rely on the general presumptions of parentage notwithstanding the provisions of s 60H [donation to a couple] and s 60HB[ State based parentage orders] , both of which were inserted into the Act after the general presumptions. Those provisions are not directed to children born in another country to a person or people ordinarily resident in that country at the time of conception and birth. (emphasis added)
It will be interesting to see how expatriate Australians may be able to take advantage of what her Honour said.
Registration of overseas orders
It is possible to register with the Family Court overseas custody orders made in specified jurisdictions so that they have the same force and effect as if they had been made under the Family Law Act.
Her Honour rejected the possibility of registration because South Africa was not a prescribed overseas jurisdiction. What she did not do was to reject the possibility of registration on the basis that the Family Court could not make a surrogacy order i.e. the view that the only orders that could be registered were like for like. Her Honour was silent on this point.
I mention this because in the past Family Court registrars have rejected overseas surrogacy orders from prescribed jurisdictions- as I wrote about in my initial submissions to the Family Law Council- because they were not like for like- as the Family Court could not make a surrogacy order, therefore it could not register an overseas surrogacy order.
In light of her Honur's silence on the point, it may now be possible to register those overseas orders, such as from California.
Recently I was asked by Rodney Cruise, convenor of Gay Dads Australia, to write about the case again.
The case is called Groth and Banks. Justice Cronin said that the sperm donor was the legal father of the child when the recipient was the genetic single mother.
The case emphasises three things:
- The rules regarding who is or is not a parent are remarkably arcane, and seem to be changing. Those who thought the sperm donor was not a parent but now may be a parent- whether they like it or not.
- Honesty between the couple was essential- but lacking in several respects.
- Stated intention was trumped by genetics.
Mr Groth and Ms Banks had been in a relationship. They split up.
Sometime after they split up, Ms Banks asked Mr Groth to supply sperm so that she could become a mother. Mr Groth agreed. They went to an IVF clinic in Melbourne. They told the clinic they were a couple. They weren't. Mr Banks signed a consent form to say that he did not intend to be a parent, but was a donor. The form was provided by the clinic in accordance with Victorian law.
After his partner saw some messages and then questioned Mr Groth did it tumble out as to what he had done. He then asked the Family Court to find that he was a father.
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.
[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].
Places are limited. At last count there were only 9 tickets left!
Russell Kennedy Pty Ltd
La Trobe Street
To register: https://www.eventbrite.com.au/event/5581676946/?ref=enivte001&invite=NDExNTkzMy9jYXRoeS5iYXJ0bGV0dEBmd2MuZ292LmF1LzA%3D&utm_source=eb_email&utm_medium=email&utm_campaign=inviteformalv2&utm_term=attend&ref=enivte001
And I'm going to throw my two cents in. In my view the numbers tell the story. Jenni Millbank's figures show that about 1000 children were born in the year ended 30 June 2012 to Australian intended parents in India and Thailand alone. The link to that story is on my Facebook page: https://www.facebook.com/Stephen.Page.Lawyer.Brisbane or my Twitter feed: https://twitter.com/stephenpagelaw.
That number says to me clearly that our system doesn't work, a point I made in my submissions to the Family Law Council . In my view our system needs to change because at the moment if it were working, then intended parents would not be voting with their feet.
If we are so keen to protect women in developing countries, why do we not make it easier to undertake surrogacy at home?
In recent discussions I had with prominent US surrogacy lawyer John Weltman, John and I estimated that about 4000 or 5000 children were born in international surrogacy arrangements each year - where they are born in one country and move to the country of their intended parents.
That means that the number of children born to Australian intended parents in India and Thailand alone represents 20-25% of all children born worldwide through international surrogacy arrangements, meaning that we are ground zero- and demonstrating our failure as a nation to adequately regulate surrogacy.
The seminar is being organised by fertility counsellor Antonia Lockitch with a lawyer and an egg donor also as speakers.
Despite the address, it's actually in a great location- overlooking the iconic Alan Border Field.
Registrations are essential.
When: 8.30 am for 9am- finishing at 3pm this Saturday 19 October.
Where: Pavilion Function and Conference Centre, 1 Bogan Street, Breakfast Creek
Cost: $60 per person, $100 for couples
Materials, morning tea and lunch included
How to register: infertility.com.au or 0418 668 448
Monday, 14 October 2013
Of course, the Tribunal finding that the Applicant failed to live in Australian as a gay man was but one of its findings as to whether the Applicant was a homosexual person. His vague account of his past sexual encounters, his failure to articulate any emotional aspect of discovering his homosexuality, and his inconsistent conduct of returning to Lebanon after his earlier visit to Australia, were others. Each went to the conclusion arrived at by the Tribunal. In its consideration of the matter, the Tribunal asked of the Applicant how it was that he lived openly as a homosexual in Australia? There was no imposition by the Tribunal of a criteria or a particular measure that the Applicant had to live up to. On a number of occasions the Tribunal attempted to elicit from the Applicant those matters which for the Applicant meant, that he lived openly as a gay man in Australia. The Tribunal did not impose its own criteria on the Applicant, but rather attempted to gain a factual context for the Applicant’s claims. The Tribunal asked of the Applicant:-
Contrary to the Applicant’s assertions, I find there was no “relevant test” applied by the Tribunal comprising its own arbitrary criteria, but rather an eliciting of relevant information from the Applicant, and a putting to him of matters that the Tribunal had difficult in accepting. There was no illogicality attending the decision. The Tribunal made a number of factual findings on the evidence before it which lead it to a logical conclusion about the Applicant’s claims.
Wednesday, 2 October 2013
The article highlights concerns that the sooner that India has regulation of surrogacy the better. Chapter 1 of the article can be found here: http://www.sfchronicle.com/local/bayarea/item/India-surrogacy-23858.php.