NSW is also undertaking a review of its Surrogacy Act 2010. I have also
made submissions to that review. Thankfully NSW does not discriminate about the sexuality or the relationship status of intended parents. Here are my submissions:
Harrington Family
Lawyers
30 April 2014
The Director
Justice Policy
Department of Attorney General
and Justice
New South Wales
By email: justice.policy@agd.nsw.gov.au
Dear Sir/Madam
Review
of Surrogacy Act 2010
This is my submission as
to the Surrogacy Review.
1.
Who am I?
I am the leading
surrogacy lawyer in Australia. I have
advised hundreds of clients in all 8 states and territories as well as clients
from 15 countries overseas about proposed surrogacy arrangements. I have or am about to engage in proceedings
for parentage orders in Queensland, New South Wales and Victoria.
Many of my ART/surrogacy
clients come from New South Wales.
I am a partner of a Brisbane
boutique family law firm. I was admitted
in 1987 as a solicitor of the Supreme Court of Queensland, in 1989 as a
solicitor of the High Court and in 2013 as a solicitor and barrister in South
Australia. A copy of my current
curriculum vitae is enclosed.
In 2012 I obtained a
world first precedent that conception is the act of pregnancy, not that of
fertilisation.
I have given evidence to
the Tasmanian Upper House inquiry concerning that State’s Surrogacy Bill, which
resulted in changes to the bill before it was enacted. I have also spoken to both Queensland and New
South Wales MP’s regarding those States Surrogacy Acts. I was the co-author (with now Federal Circuit
Judge Harland) and the principal researcher of an article on State by State
Surrogacy Laws (in 2011). I chair the
Surrogacy Australia Legal Committee. I
am one of three Australian Members of the International Surrogacy Forum and I
am one of two
International
representatives of the American Bar Association’s Artificial Reproductive
Technology Committee. In my role with
that committee, I hold the responsibility for drafting a
position for the American
Bar Association as to the proposed Hague Convention on international surrogacy. I am a member as well of various legal and
family law organisations. This
submission is my own. The opinions I
hold are my own and not of those of any organisation of which I am a member or
of which I hold a position.
2.
Family Law Council
I note that last year
then Attorney-General Nicola Roxon asked the Family Law Council to review the
interplay between the Family Law Act
and the State Surrogacy Acts and
related legislation. That report was
presented to the Attorney-General Senator George Brandis QC. The recommendations of that report are
unknown and the position of the Federal Government in response to that report
is unknown. It would be helpful in
framing the review to know the outcome of that report and the position of the
Federal Government.
In the course of that
review I set out the various factors as to why people undertake surrogacy
overseas and gave many examples as to the current problems with surrogacy law in
Australia, including in New South Wales.
A copy of my two submissions dated 3 June 2013 and 28 June 2013 to the
Family Law Council are enclosed.
3.
National Health and Medical
Research Council
I note that the council,
which through its Ethical Guidelines[1]
in effect licences IVF units
nationwide, has commenced a review of the portion of the Guidelines covering
donors and surrogates including asking as part of the preliminary process as to
whether donors and surrogates should be paid.
4.
What is right with the Surrogacy Act ?
The Surrogacy Act quite properly allows for the legalisation and
regulation of surrogacy. It sets in
place a framework, along with other legislation, to allow the regulation of
surrogacy.
It is imperative that
surrogacy is able to be properly regulated.
Regulation brings with it one would hope the removal of exploitation –
of surrogates, of intended parents, of donors and of children. Regulation should also bring with it the
removal of child trafficking.
The trick with
regulation is to ensure that in meeting these laudable aims, and enabling the
recognition of children born through surrogacy, that it doesn’t become so heavy
handed that it defeats its purpose.
4.1 No
discrimination
There are real
advantages with the Surrogacy Act as
opposed to interstate legislation. Those
advantages include:
1. The Surrogacy Act does not discriminate. In this respect it takes a similar position
to that in Queensland and Victoria. It
does not cast judgment about who can and who cannot be a parent. This is in contrast to the other
jurisdictions:
·
the
ACT where intended parents must be a couple
·
Tasmania
– where ordinarily all of the parties must come from that State;
·
South
Australia where the intended parents must be married or in a heterosexual de
facto relationship – thereby excluding gay and lesbian couples and single
intended parents; and
·
Western
Australia where the intended parents must be married or heterosexual de facto
couples or lesbian couples or single women – thereby excluding gay couples and
single men.
4.2 Expenses
The Act also takes an
inclusive approach as to expenses. When
the then Attorney-General George Hatzistergos stated that he would be following
the lead of the Surrogacy Act 2010
(Qld), I had expected that the definitions used for expenses would be identical. This was not the case and it is a terrible
shame that identical language is not used in different States.
The language used for
expenses is a matter with which the parties must comply. If they do not then they risk entering into a
commercial surrogacy arrangement, with the consequence that they are committing
an offence.
There appear to be an
assumption at the time of the drafting of the Bill that all those who enter
into a surrogacy arrangement would come from New South Wales. The reality is that there have been a number
of interstate matters either with orders made, underway or contemplated in
which, for example, the intended parents live in Queensland and the birth
mother in New South Wales or the intended parents live in New South Wales and
the birth parents in Victoria.
It would be ideal to
have identical language rather than the differences in language. Having said that the definition of expenses
is sufficiently wide to allow expenses to be met.
In my view it is
essential that the surrogate be cherished for the gift of life that she
provides, especially when she potentially puts her life at risk. It was recently estimated by leading
fertility specialist Dr Warren DeAmbrosis[2]
that a woman giving birth dies in one in ten thousand live births. It would seem extraordinary with those odds
that any woman would ever volunteer to be a surrogate.
4.3 Insurance
It is essential,
accordingly, in my view that adequate insurance is provided for surrogates,
namely life insurance, health insurance and disability insurance. The last can be difficult or impossible to
obtain for women who are not in the workforce or self-employed.
In South Australia, by
contrast with the situation in New South Wales which allows all these insurance
products to be made available to surrogates, it is in effect an offence to
provide life insurance to the surrogate.
4.4 No overarching bureaucracy
Another benefit of the
approach under the Surrogacy Act is
that there is no requirement to obtain pre-approval from a state regulator,
contrasting with the position in each of Victoria and Western Australia. In my view the stated advantages of having a
State regulator are in fact overstated and the cost burden to both the taxpayer
and the users concerned is in my view unnecessary.
In my view IVF clinics
are very concerned to ensure, quite properly, that at all times they meet their
licencing requirements, including those of ensuring that they are compliant
with the National Health and Medical Research Council Ethical Guidelines.
I have had the privilege
of dealing with four Sydney IVF clinics as to surrogacy/ART matters, In my view all the clinics take their legal
responsibilities very seriously, and strive to comply with the spirit, as well
as the letter, of the law.
4.5 Supreme Court
I also believe that the Surrogacy Act gets it right in requiring
that applications for parentage orders be made in the Supreme Court. This is the superior court of record of New
South Wales and was always the court that exercised parens patriae jurisdiction
it is clearly the appropriate court in which these applications ought to be
made pending of course any potential referral of power to the Commonwealth so
that these applications could be made in the Family Court of Australia or the
Federal Circuit Court of Australia. By
these applications being made in the Supreme Court if there is any defect in
any application, there is the potential at least for the Supreme Court to
exercise its cross-vested power. It is a
pity that in general other States, such as Queensland and South Australia did
not see fit to invest their Supreme Courts with this jurisdiction.
4.6 In Chambers
The one criticism that I
would have about the Supreme Court process, as I have brought parentage order
applications successfully in the Supreme Court as well as in the Children’s
Court of Queensland and have a matter pending currently in the County Court of
Victoria – is that the proceedings in the Supreme Court are in chambers. This means in effect that the various
paperwork including application and affidavits are filed in the Supreme Court
and then about 3 weeks later the orders issue.
Whilst this may be appropriate to the rigorous demands of that Court, I
would suggest that a better approach, being more inclusive of the surrogate and
her partner and of the intended parents is that there be a requirement for the
appearance to occur in
Court. Having had the alternate experience of having
to attend at Court and having talked to colleagues in Victoria, it is my view
that it is certainly better for all concerned that there be a court appearance. In my view it is likely that these
applications will largely be made by solicitors on the papers with extensive
submissions so they should be a fairly quick process, assuming that all the
requirements of the legislation have been met and especially that the best interests
of the child have been provided for.
There is not a much larger cost in going to court as opposed to doing
the matter in chambers. Most of the cost
incurred by the parties at that point of the surrogacy arrangement is in
preparation of affidavit material, with the obtaining of reports and the
preparation of submissions.
For intended parents,
birth mothers and their partners, the appearance in court is both nerve
wracking before court and a wonderful release afterwards. It is a clear recognition by society that
this baby and all who sail with it in the ship of that surrogacy arrangement
have the imprimatur of the State. It is
a joyous experience which is simply not matched by the matter being dealt with
in chambers. The matter being dealt with
in court has a richer, more inclusive nature to it and I would strongly urge
that it be adopted (whether under the Surrogacy
Act or appropriate practice direction or other rules of the Supreme Court)
to allow the procedure to occur in court as opposed to in chambers.
There are two clear
advantages that the Surrogacy Act has
over some interstate equivalent legislation:
1. There is not a requirement for
treatment to occur in New South Wales.
2. There is not a requirement for
the parties to reside in New South Wales before they enter into the surrogacy
arrangement.
Place
of treatment
Like Queensland, but
unlike Victoria, in effect Tasmania[3],
The ACT, South Australia and Western Australia there is no requirement for
treatment to occur in New South Wales.
This may not seem of great significance, but it is of great advantage in
allowing flexibility for intended parents.
Example
Dom
and Charmaine wish to undertake surrogacy.
Although Australian citizens and residents of New South Wales, they have
previously lived in the United States.
While living in California, they created a number of embryos comprised
of Dom’s sperm and Charmaine’s eggs.
These embryos were frozen. One of
these embryos was previously used when they undertook commercial surrogacy in
California. Commercial surrogacy is
legal in California. Their eldest child
Taylah was born in California.
They
decide to undertake surrogacy. Realising
that it is illegal to enter into commercial surrogacy in California again, Dom
and Charmaine explain the problem to their family. Charmaine’s sister-in-law Lauren agrees to be
a surrogate.
Dom
and Charmaine then have three options:
1. Create
new embryos. In accordance with the National Health and Medical Research
Council, Ethical Guidelines, in a clinic in Sydney and then undergo
implantation of Lauren in Sydney. Not
surprisingly this is their least favourite option, because they want to use the
embryos they have already created that are currently in storage in California.
2. Ship the embryos from California to
Sydney for treatment to occur in a Sydney IVF Clinic. There are two problems with this approach –
one physical and one from a practical viewpoint. The physical problem is that in shipping
there is a low risk of the embryos being lost in the thawing process once they
have arrived in Sydney. There is a lower
risk of loss of the embryos, in their view based on the advice they have
received, if treatment occurs in California.
The other practical issue is that because they received counselling from
an experienced psychologist before their embryos were created and before they
undertook surrogacy, but that counsellor was not an ANZICA counsellor,
therefore there was a real risk that an IVF clinic in Sydney would not treat
because counselling was not in compliance with the NHMRC Ethical Guidelines.
3. Undergo treatment in California with
the surrogate to fly to California for treatment.
Dom
and Charmaine decide on the last option, although it is the most expensive of
the three because they believe that the doctor being a renowned expert in the
field will be recognised as an expert in the Supreme Court. As at the time of preparation of this
submission the child is shortly due to be born.
It might be noted that
if the model in other States (other than Queensland) were adopted the ability
to undertake this treatment overseas would not be available to them.
It might also be noted
that the costs of IVF treatment in California are only marginally higher than
that in Australia for surrogacy (as there is no taxpayer subsidy here).
4.8
Resident
There are a good number
of expatriates who wish to undertake surrogacy in Australia, typically with
family or friends. A requirement that
the Surrogacy Act has, in common with
Queensland, but not in common with the other jurisdictions is a requirement
that the intending parents reside in New South Wales at the time of the making
of the parentage order. This means that
there is not a requirement for the intended parents to live in New South Wales
at the time of entering into the surrogacy arrangement. This approach has flexibility as well as
appropriate regulation.
4.9
Language
I am pleased that the
Surrogacy Act has adopted the language of “intended parents, birth mother, and
birth mother’s partner”. In doing so it
has adopted international norms and has reflected the reality of intended parents. It has not fallen into the mistake, as I see
it of appearing to be a commercial transaction such as Victoria’s words of
“commissioning parents” or demeaning of the intended parents such as in the ACT
where they are called “substitute parents” or that of Western Australia where
they are called “arranged parents”.
5.
What is wrong with the Surrogacy Act
The Surrogacy Act and related legislation[4]
whilst regulating surrogacy does so in such a
manner that in effect it
forces people to undertake surrogacy somewhere else.
Changes
required for surrogacy in New South Wales
1. Taking a national approach;
2. The ability to advertise for a
surrogate;
3. The ability to advertise for a
donor;
4. The ability to pay for a donor;
5. The ability to pay for a
surrogate;
6. The ability to undertake commercial
surrogacy overseas.
5.1 Taking a national approach
Australians are mobile,
as we have seen in recent times with the great numbers of Australians flocking
to Western Australia during the mining boom.
It is essential that so far as is possible a national approach is taken
to surrogacy laws.
I note that there is a
broadly similar model of regulation in five jurisdictions: Queensland, New
South Wales, the ACT, South Australia and Tasmania – namely that surrogacy is
undertaken without the need for pre-approval from a State beaurocracy and
instead counsellors, lawyers and IVF clinics can be trusted to ensure that thorough
screening is undertaken prior to commencement so as to ensure that there is not
commercial surrogacy being undertaken, that there is not exploitation of the
surrogate or of the intended parents, that all parties at the right time
receive counselling and legal advice and appropriate medical help.
I note that when
Tasmania was debating its Surrogacy Bill
in 2011 the then Attorney-General,
specifically rejected the Western Australian approach as being too
restrictive and slow. I note in passing
that the Upper House committee which reviewed the Surrogacy Bill also toyed with the idea of having the pre-approval
by a judge of proposed surrogacy arrangements (presumably in a similar manner
to that in South Africa) but rejected that also no doubt as being too
restrictive as it added to costs to the parties and to taxpayers, without
adding a greater benefit. That
pre-approval model also envisaged that after the child was born a parentage
order would be made, necessitating therefore a minimum of two court appearances
with the paperwork and costs associated with each.
Under the model of final
approval, approval is granted at the end by the making of a parentage order at
which stage a Judge has the opportunity to review all that has happened
before. The effect of that judicial
check and balance is that the parties ensure that they comply with all steps
prior to that point because their aim as is the aim with any intended parent is
to ensure that not only a baby is conceived and born but that the parents are
recognised by the community as a matter of law as the parents of that child,
including on the birth certificate of that child.
Example:
Joanne
Blow is a widow in Sydney. It was always
the dream of her and her husband to have children. Tragically he died. Joanne has had a number of miscarriages and has
been unable to carry children. She has
since learnt that her eggs are not viable either. She wishes to proceed by way of
surrogacy. Due to the complexity of her
proposed surrogacy arrangement, she does not meet
the internal guidelines of one of Sydney’s IVF clinics and another decides that
it will not assist.
Joanne
then decides to undertake medical treatment in Brisbane. There is no prohibition in Queensland in
undertaking surrogacy treatment for those who live interstate. Joanne executes
a surrogacy arrangement. Her surrogate and the surrogate’s husband live in
Western Australia. Her egg donor comes
from Queensland and her sperm donor from New South Wales.
The
surrogacy arrangement:
-Is
a New South Wales surrogacy arrangement because Joanne lives there.
-Must comply with the Surrogacy Act 2010 (Qld) because the clinic is in Queensland.
-Must not fall foul of the Surrogacy Act 2008 (WA) because the
surrogate and her husband live
there.
-Must comply with the National Health and Medical
Research Council, Ethical Guidelines on the use of Assisted Reproductive
Technology in Clinical Practice and
Research, 2007 – as that is a licensing requirement of the IVF clinic.
-As the sperm donor is from New
South Wales there must be compliance with the
Human Tissue Act 1983 (NSW).
-As the egg donor is from Queensland
there must be compliance with the Transplantation and Anatomy Act 1979
(Qld).
-Must
not be commercial trading in human eggs or sperm and therefore must comply with the Prohibition of Human Cloning for Reproduction Act 2002 (Cth), the Human Cloning for Reproduction and other Prohibited Practices Act 2003 (NSW)
and the Research Involving Human Embryos
and Prohibition of Human Cloning for Reproduction Act 2003 (Qld).
5.2
The inability to advertise for a surrogate
It is an offence under
the Surrogacy Act to advertise –
except where the advertisement is for free and except where it is for an
altruistic surrogacy arrangement.
As a daily event
surrogates and intended parents advertise.
They are not prosecuted, despite there being similar laws in every State
and Territory (other than the Northern Territory). This law is ineffective. It is not an offence, for example, for an
intended parent to read an advertisement placed by a potential surrogate and
then to contact that potential surrogate.
If given the option many Australian intended parents would rather
undertake surrogacy with an Australian surrogate than with a surrogate
overseas.
It is suggested that the
ability to advertise should not be restricted to free advertisements.
5.3 Inability
to pay the donor
It is an offence under
section 21 of the Prohibition of Human
Cloning for Reproduction Act 2002 (Cth) to pay an egg or sperm donor
anything other than “reasonable expenses incurred” (which phrase has not been
defined as there have been no prosecutions to my knowledge). The penalty for committing the offence is a
maximum of 15 years imprisonment.
Section 24 of that Act allows for the operation of State laws. The equivalent
provision is section 16 of the Human Cloning
for Reproduction and Other Prohibited Practices Act 2003 (NSW) which allows
for a maximum of 15 years imprisonment.
Intended parents in New
South Wales faced with these laws and a shortage of donors are undertaking egg donation
overseas. Many intended parents knowing
that they cannot have children themselves and believing that the cure is
surrogacy unnecessarily have decided to undertake surrogacy overseas whereas
the cure in their particular case may merely be that of egg donation.
The availability of egg
donors seems to vary. Recently Dr Warren
DeAmbrosis, Fertility Specialist in Brisbane, told a surrogacy seminar in
Brisbane that the delay in undertaking egg donors through Queensland Fertility
Group was approximately 6 years. From
talking to my overseas colleagues, this appears to be the worst in the world,
and reflected in New South Wales and Victoria.
Monash IVF has been able to import egg through its operations in
Queensland and Victoria from the World Egg Bank in Arizona.
Australians have
undertaken egg donation in places as disparate as Argentina, South Africa,
Spain, Greece, Ukraine and the three places where Australians typically go for
surrogacy are: India, Thailand and the United States.
Given that it has been
estimated that one in six Australian couples have infertility problems it is
likely that the number of Australians including New South Wales residents
undertaking egg donor arrangements overseas will increase.
If the Surrogacy Act is looked at in isolation
without consideration of the various parts that need to be changed to enable
the legitimate expectations of New South Wales intended parents to become
parents then the review will by its nature fail.
I am told that the delay
in obtaining eggs from an egg donor through a website takes approximately 8
weeks. Reports vary. Queensland clients of mine reported to me
that they approached 40 prospective egg donors and were unsuccessful with all
save a prospective donor in Western Australia who wanted to be paid $5000 which
she wanted to then use to undertake surrogacy overseas. Not surprisingly, my clients declined her
offer.
Note: Section 10C of the Crimes Act 1900 (NSW) makes it plain that those who undertake
commercial surrogacy outside New South Wales or those who pay egg donors other
than “reasonable costs incurred” outside New South Wales may well be committing
a criminal offence in New South Wales.
Section 10C provides:
“(1) If:
a)
All elements necessary to
constitute an offence against the law of the State exist (disregarding
geographical considerations), and
b)
A geographical nexus exists
between the State and the offence,
the
person alleged to have committed the offence is guilty of an offence against
that law.
(2)
A geographical nexus exists between the State and an offence if:
a)
The offence is committed wholly
or partly in the State (whether or not the offence has any effect in the
State), or
b)
The offence is committed wholly
outside the State, but the offence has an effect in the State.”
In other words if the
offence is committed in part in New
South Wales or the effect in New
South Wales, the offence occurs in New South Wales.
I also note here the similar
provision in section 32(3) of the Human
Tissue Act 1983.
Example of
committing offences
Damian
and Bianca Smith live in Sydney. They
have contacted the You Want a Baby Now Surrogacy Agency in Thailand. The agency makes it plain that surrogacy can
be completed efficiently, quickly and cheaply in Thailand and the agency will
assist them in obtaining Australian citizenship for their child in
Bangkok. The agency sends them two agreements:
·
Agreement
with the surrogate
·
An
egg donor agreement
Both
purport to be altruistic, but certain agency expenses are to be met.
Damian and Bianca receive these
documents by email, print them, sign and date them, scan them and email them
back.
Damian
and Bianca, by virtue of section 10C may have well committed an offence under
section 16 of the Human Cloning for
Reproduction and Other Prohibited Practices Act 2003 and by virtue of
sections 8 and 11 of the Surrogacy Act
2010, the latter of which provides for an extra geographical nexus for
offences, which is 2 years for breaching the Surrogacy Act and 15 years for breach of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003.
5.4 The
inability to pay the surrogate
In my view the extension
of the geographical nexus under section 11 has been remarkably
ineffective. The purpose of it, as I
understand it from talking to MP’s was that it was intended to ensure that
women in developing countries were able to be protected, and that related to
this, a strong message would be given by Parliament which would have the effect
of deterring people from undertaking surrogacy overseas due to concerns also
about the potential exploitation of intended parents and particularly about the
trafficking of children.
As far as I am aware
there have been no prosecutions, but it is beyond reasonable doubt that many
people from New South Wales have undertaken commercial surrogacy overseas.
The extra-territorial
ban has been King Canute holding back the tide; a symbolic and futile gesture
which has been completely ineffective.
Others have moved
interstate, particularly to Victoria and less so to Western Australia and the
Northern Territory, so that they do not commit offence and some also have moved
overseas particularly to the United States.
The ban was brought in
with no community consultation, which then resulted in an uproar after it was
enacted, the effects being set out in the extraordinary section 11 of the Surrogacy Regulation 2011 which,
contrary to the obvious words of section 10C of the Crimes Act 1900 in effect provides that if anyone has entered into
a surrogacy arrangement overseas before 1 March 2011 or at least signed up an
agency before that date they cannot be prosecuted.
There ought to be the
ability to pay surrogates. As Professor
Jenni Millbank demonstrated, in the year ended 30 June 2012 approximately 1000
children were born to Australian intended parents in India and Thailand alone. This figure is astounding. It demonstrates the inability of Australian
parliaments to meet the legitimate needs and aspirations of Australians. It makes surrogacy so difficult that
Australian intended parents are voting with their feet and going overseas. My experience of clients from New South Wales
is that they have undertaken surrogacy overseas in:
·
India
·
Thailand
·
United
States
I have had clients from New South
Wales enquire about undertaking surrogacy in Mexico. As I indicated above, there are currently
negotiations in place as to a proposed Hague Convention on International
Surrogacy. Such a convention is likely
not to be in place for several years.
Hopefully a properly drawn convention will help protect the human rights
of surrogates in developing countries, reduce the chances of child trafficking
and protect the interests of intended parents and donors. Above all, hopefully a convention will
protect the interests of children.
As part of the lobbying
efforts associated with the convention, an international adoption
non-government agency has estimated that there are approximately 20,000 international surrogacy arrangements
per year in the world i.e. the child is born in country A and then moves to
country B where the intended parents came from.
If that number is correct, then one in twenty international surrogacy
arrangements involve Australians remembering that Australia has a population of
22 million. This is an extraordinary
figure. However, in October last year I
had discussions with a colleague, Mr John Weltman who is the founder and
president of one of the world’s leading surrogacy agencies, Circle Surrogacy in
Boston. It is the estimate (and no more)
of Mr Weltman and mine that there are approximately 4,000 – 5,000 international
surrogacy arrangements each year in the world.
If this number is correct then the number of Australian babies each year
in India and Thailand alone are 20 to 25 per cent of the whole of the world’s
international surrogacy arrangements.
Certainly my experience has indicated that there are more New South
Wales residents undertaking surrogacy overseas than undertake it locally. This is not just limited to gay or single men
but also applies to those in married and heterosexual de facto relationships.
The perception of these
clients is quite simple: it is too hard to undertake surrogacy in New South
Wales and they would rather go overseas.
I have set out these perceptions in my submissions to the Family Law
Council inquiry, which are attached.
Commercial surrogacy has
been an anathema for Australian politicians who are rightfully concerned that
there ought not to be exploitation of women’s bodies nor child
trafficking. The reality about the
regulation of commercial surrogacy is that in much of the United States that
regulation occurs and it has worked; in the case of California for example for
over 30 years.
At the moment if a New
South Wales couple wants to find a surrogate (because they don’t have a family
member or friend who will be a surrogate), they take pot luck as to the quality
of any potential surrogate. There is
currently no great screening ability of potential surrogates as occurs with
surrogacy agencies in the United States who are extremely thorough in screening
potential surrogates. Commercial
surrogacy can be undertaken with appropriate safe guards in New South Wales
that would continue to protect the surrogate, the child, the intended parents
and donors – without the sky falling in and avoiding exploitation and
trafficking.
Example:
Will
and Bart are a gay couple who are teachers living in Albury. They wish to undertake surrogacy. They have found a suitable surrogacy agency
in the United States. They are employed
by the New South Wales Government as teachers.
Will and Bart decide, so as to not commit an offence under the Surrogacy Act to undertake commercial
surrogacy in the United States. By then
doing so they move to Wodonga. It is
legal in Victoria to undertake commercial surrogacy overseas. They then commute from Wodonga to Albury
daily for work. They act properly and
continue to be able to be employed by the New South Wales Government and remain
registered as teachers. They have not
committed any offence. They have
complied with Victorian law. They were
not ordinarily resident or domiciled in New South Wales at the time of entering
in to the surrogacy arrangement in California.
6.
Costs of Surrogacy
Undertaking surrogacy in
Australia is cheaper than overseas. The
cost in the Eastern States at least varies from $25,000 to $60,000.
An IVF cycle costs
approximately $15,000, and legal costs are $10,000 - $15,000.
If there is one cycle
and lower legal costs, the cost is $25,000.
If three cycles and higher legal costs, the cost is $60,000.
By contrast the cost
overseas is:
India $80,000
Thailand $80,000
USA $100,000 - $250,000
7.
Who can counsel
The wide definition under
regulation 7 of the surrogacy Regulations 2011 should form part of the act and
that definition to include social workers, psychologists and psychiatrists
should include those counsellors who undertake the preliminary counselling. Provided that the counsellor has the relevant
experience it the initial counsellor does not need to be an ANZICA
counsellor. For example, in one of my
surrogacy arrangements in Queensland I acted for the intended parents. The wife was a clinical psychologist. She took objection to a psychologist being
the counsellor because she said the MMPI test, which counsellors typically use,
was patronising and irrelevant to the process of surrogacy. Instead I was able to ensure thorough counselling
was provided by a very experienced social worker. The requirement in Queensland, for example,
for counselling is that the person is one of the following:
a. A member of the Australian and New
Zealand Infertility Counsellors Association
b. A psychiatrist who is a member of the
Royal Australian and New Zealand College of
Psychiatrists
c. A psychologist who is a member of the
Australian Psychological Society
d. A social worker who is a member of the
Australian Association of Social Workers and
e. Has the experience, skills or knowledge
appropriate to prepare the report.
It has been the practice
by some counsellors who undertake the initial counselling to then undertake the
relinquishment counselling of the birth parents. Other counsellors decline to do so as it is
unclear whether parliament and the Government by virtue of the regulations
there to be three counsellors involved in the process or two.
By the time
relinquishment counselling has occurred, the child has already been handed
over. For clients who are birth mothers
and their partners, this counselling seems to be pointless save that it is
required by the legislation.
The experience from
Queensland is that having thorough initial counselling with a thorough report
from the counsellor, together with thorough legal advice before the surrogacy
arrangement is entered into along with the obtaining of the independent
assessment by an experienced report writer demonstrates clearly to the court
that the parties knew what they were doing and were not acting under duress or
some disability.
The relinquishment
counselling adds to cost and to my mind adds little benefit. What would be more effective in my view is
not a legislative response but to continue to work with ANZICA to encourage
counsellors to offer counselling to the intended parents and the birth mother
and her partner, in addition to that initial counselling but by that same
counsellor at 3 months and 6 months of term and 3 months post birth. This is in accordance with the original protocols
prepared by the pioneers of surrogacy in Australia, Canberra Fertility
Clinic. That counselling is to be paid
for by the intended parents. It ought
not to be compulsory but as requested.
Prevention, after all, is better than cure.
From my experience where
there is a heterosexual couple who are the intended parents and a surrogate has
a spousal partner, the most likely people undertaking that further counselling
are the intended mother and the birth mother alone. In those types of arrangements it is
essential that there is a good bond between those women, that any problems are
able to be nipped in the bud and that the counselling can be used to build on
the bond between them and repair any potential problems.
8.
China
Australia has been a
pioneer since the inception of IVF.
A current trend that
will accelerate in coming years is the number of Chinese infertile couples
accessing donor egg and surrogacy services in the United States. Because of the regulation of IVF units donors
in surrogacy in Australia, including under the Surrogacy Act, it is not
possible to attract this business to Australia.
Increasingly surrogacy agencies and egg donor agencies in the United
States are targeting their services to potential Chinese customers.
9.
Availability to give evidence
I am able to give
evidence or otherwise assist further if called upon.
Yours faithfully
Stephen
Page
Harrington Family
Lawyers
[1]
NHMRC, Ethical Guidelines on the use of
Assisted Reproductive Technology in Clinical practice and Research, 2007
[2]
Dr DeAmbrosis is a fertility specialist in Brisbane. He was one of the founders of the Queensland
Fertility Group. He advised a public
forum “So you want to make a baby” in Brisbane in April 2014 of this statistic.
[3]
Because of the requirement that in effect all the parties must come from
Tasmania therefore the treatment must in reality occur in Tasmania.
[4]
I note that this review is only related to the Surrogacy Act
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