The dozen eggs in the international ART rules basket- a view from Down Under
San Francisco Bar Association
2 October, 2015
Stephen Page 
“Governments don’t play God. Governments shouldn’t tell us when to have children.”
“Your role and my role are completely different. A judge’s role is to enforce the law. A lawyer has a duty to their client. It is therefore the lawyer’s role to act in the best interests of the client. It is therefore the lawyer’s role to test the law, find the
loopholes and weaknesses and steer the client through them. This is a positive outcome for society.” 
Rule 1: Don’t believe everything you read on the internet.
“It seems clear that prohibition of surrogacy does not work and in Australia, most States approach this difficult policy issue by way of regulation. Such regulation is difficult in a globalised world where travel from continent to continent is no longer difficult. Added to this, in some parts of the western world, there is wealth to the extent that funding of surrogacy (whether commercial or altruistic) is easily achieved…
Modern science and medical skill surrounding the creation of life are now well ahead of legal, social and legislative policy. In Australia the creation of effective policy will be difficult particularly on a State by State basis. These policy issues probably need to be dealt with on a national, whole of continent consistent basis, including having regard to Australia’s international treaty obligations.”
“There are many and varied paths to parenthood. Where the path involves an international surrogacy arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.”
“The starting point, however, is to make clear from the Court’s perspective that this is an area where the Court has some disquiet. It is well known in the community that there are babies brought to various places around the world in international baby selling and trafficking. It is also said – and I think I can take judicial notice of this from some of the literature that I have read – those sorts of criminal elements involve the trafficker declaring themselves as the biological parent of a child and having the birth mother refuting or rejecting any involvement in the child’s life. It may not be prevalent in Australia, but it is known in other parts of the world.
A second reason why this Court needs to be cautious and scrutinise these arrangements carefully is the philosophical argument that children who are born to women under these circumstances can be seen to be either abandoned by their birth mothers or indeed crassly sold by their birth mothers. The Court is rarely given any information about the circumstances under which the child might otherwise live if it did not move from the birth mother to people such as the present applicants.
I know nothing about the financial circumstances that the mother in this particular case may have had arising out of this contractual arrangement. I do not know whether S Agency is an organisation profiting from the poverty and the problems that women in countries such as India and Thailand might face. That is not in any way to suggest that the applicants are anything other than responsible and very dedicated parents for the child. I stress again that the Court is raising these issues because it is concerned that it needs to be satisfied that this child is not caught in that web of horror and intrigue.”
My father, who was a very cynical man, used to say to me jokingly that if something were in the newspaper then it must be true. He frequently said to me that it was good to look at things with a sceptical eye to judge whether in fact what might be said might be the truth.
Unfortunately what I’m often seeing are intended parents who have entered into a surrogacy arrangement somewhere and realised that they are in a mess, usually when the surrogate is pregnant. They often end up there by having read something on the internet, believing it all to be true.
It sounds really basic, but it is absolutely essential that any intended parents (or for that matter surrogate or her partner or donor) contemplating entering into a surrogacy arrangement of some kind get good legal advice from all the places involved before wandering down the garden path of a surrogacy arrangement.
It is much easier to plan for matters than to try and dig clients out and save them. Recently I was lucky enough to attend the first regional meeting of the LGBT Family Law Institute outside the US. It was in London. A colleague described the role of an ART lawyer in a surrogacy arrangement as filling one of three descriptions:
· Hopefully, the planner- to set the scene for the clients, and make sure all goes through smoothly;
· Sometimes the pilot- for when the clients know precisely where they want to go, and want to get their as quickly as possible; but
· Too often, the janitor- getting called in after everything has gone wrong and having to clean up the mess.
I think it is imperative upon those of us who engage in the practice of fertility law, particularly international surrogacy, that we publicise issues of concern and emphasise repeatedly that those contemplating surrogacy ought to get legal advice before they start the process – not advice from their friends or the people they have talked to on the internet or other intended parents who have avoided going to lawyers. It may be that their friends were very fortunate and had a dream run by somehow walking through a minefield and avoiding stepping on any of the mines. However if they get stuck then they’ll get stuck big time.
Rule 2: What is legal there may result in jail here.
This applies both ways, see Rule 1. There is a common misconception that because commercial surrogacy, for example, is legal in California therefore it is legal in Australia.
To give examples of this problem:
· in three of five jurisdictions in Australia it is an offence to enter into a commercial surrogacy arrangement overseas. It is also arguable at least that it might be illegal in a fourth jurisdiction. Through garbled wording, it now appears to be illegal to undertake surrogacy of any kind overseas for people from South Australia, unless that State’s Attorney-General has approved the arrangement. The requirements for guidelines for such approvals are not known.
· in seven out of eight jurisdictions in Australia it is a criminal offence to enter into a commercial surrogacy arrangement in Australia.
· in all Australian jurisdictions it is a criminal offence, punishable by up to 15 years imprisonment, to engage in the commercial trade in eggs, sperm or embryos.
· in several jurisdictions the offence of entering into the commercial trade of eggs, sperm and embryos may also apply outside the jurisdiction so that someone from New South Wales, Queensland or Western Australia, for example, may unintentionally commit the offence while having gone to an egg donor agency overseas. In other jurisdictions such as Victoria, it is not a criminal offence overseas.
All parties involved in a surrogacy arrangement need to know before the arrangement commences as to the lie of the land with the law and practice in all relevant jurisdictions. What may be perfectly acceptable practice, indeed industry best practice in one jurisdiction may be a criminal offence somewhere else.
It is possible to register overseas child orders under the Family Law Act 1975(Cth). Section 70G provides:
“The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.”
The Family Law Regulations 1984 (Cth) allow for orders made in prescribed overseas jurisdictions, primarily the United States, to be registered under the Family Law Act, which then have the effect by virtue of sections 70H and 70J of the Act as if they were made by the overseas court under Part VII of the Family Law Act. Three US jurisdictions are not captured: from recollection Missouri, North Dakota and another. California and all adjoining states are prescribed.
Anecdotal evidence exists that it is not possible to register a surrogacy order made in the United States in Australia because such an order involves the termination of parental rights, an order that is not otherwise possible under Part VII of the Family Law Act. An order terminating parental rights is to the Australian public benefit, because it terminates rights of custody under the Hague Abduction Convention. The existence of such an order is considered by the Department of Immigration and Border Protection when considering citizenship of the child. Such an order also ought be determinative in Australia of parentage.
However, a recent Family Court decision has indicated that it may be possible to register overseas surrogacy orders under this section.
I am currently in the process of seeking to test the waters and am seeking to register orders on behalf of several clients.
Rule 3: You say tomato…
Probably one of the easiest overcome issues, but nevertheless frustrating ones, is that of language. I am not talking of accents! I am talking about jargon. When your counterpart or client is not an English speaker then things become even more interesting. Patience is a virtue.
Examples of language differences- from within Australia
You may call them
I call them
Others call them
Bio and non-bio dad
Father and parent
Bio and non-bio mum
Mother and parent; mother and co-parent
Registered surrogacy agreement
Substitute parent agreement
Rule 4: Citizenship and residence are not the same.
As Oscar Wilde once said: “When you assume you make an ass out of u and me.”
Always ask about citizenship. Failure to do might mean a notification to your professional indemnity insurer! Often citizenship and residence are the same, but sometimes they are not. This necessarily adds to complications.
Rule 5: No one may know what happens there (or here).
All too often clients assume that the answer must be known and it must be obvious. Because surrogacy is so new in many parts of the world or so few lawyers if any are undertaking surrogacy work, often it is impossible to determine what is the state of law. Sometimes the state of practice is opposite that of the state of law- and often what is to happen is not known.
A constant problem that I am striking is as to the state of law in other countries and trying to find lawyers who know anything about surrogacy law in those countries. Despite my best efforts I’ve not yet had responses from possible lawyers who can advise about surrogacy in most of Asia. Lawyers there simply don’t want to touch it.
It is essential that we try and arm our clients with as much information as possible so that they can make an informed decision. This often will need to be with obvious disclaimers by us about our lack of knowledge.
I see that as also essential that given that surrogacy is so new in so many parts of the world that we try and engage and network with other lawyers and professionals in those countries so that there is a system of knowledge about surrogacy and the laws concerning surrogacy throughout the world.
Rule 6: In different parts of the same country, different rules might apply.
You saw my examples above about New South Wales and Victoria, New South Wales and Queensland, and South Australia and Victoria.
There is an assumption by many in Australia that the only place that undertakes surrogacy in the United States is California. There is also a common assumption in Australia that the rules throughout the United States are the same.
There is also a common assumption in both the US and Australia that surrogacy rules throughout Australia are the same. To give you an idea of the complexities in Australia:
· We have nine systems of law concerning surrogacy, namely at the Federal level (Commonwealth) and in the eight States and Territories;
· The Northern Territory has no laws concerning surrogacy, which has the bizarre effect that to all intents and purposes surrogacy can’t be practised there and Territorians must go interstate or overseas. There are currently moves in the Territory for there to be a Surrogacy Act, but any regulation is likely to be some way off.
· Queensland and New South Wales, ACT, Tasmania and South Australia have a model involving legal advice and counselling;
· Victoria and Western Australia each have a State regulator requiring pre-approval before the surrogacy arrangement can proceed;
· To be an approved surrogacy arrangement in ACT, Victoria, South Australia and Western Australia the medical treatment must occur in that jurisdiction. There is no such requirement in Queensland, New South Wales or Tasmania;
· In Tasmania, with an exception for the best interests of the child (determined by a judge after the baby is born), all parties to the surrogacy arrangement must reside in Tasmania;
· The intended parents must reside in Western Australia, South Australia, Victoria and the ACT before the surrogacy arrangement commences. They can reside in New South Wales or Queensland until later, which can have an impact on overseas intended parents who are Australian expatriates;
· Singles need not apply in the ACT or South Australia. Same sex couples need not apply in South Australia. Single men and gay couples need not apply in Western Australia, but for some reason single women and lesbian couples are okay.
The three models of surrogacy regulation in Australia
There is little commonality as to regulation of surrogacy in Australia. There appears to be little if any recognition that other parties may be outside State boundaries, and little commonality of approach. The best that can be said is that the then Standing Committee of Attorneys-General came to draft guidelines as to surrogacy. These guidelines have never been finalised, and nor have the laws been harmonised. A statutory body, the Family Law Council, has recommended that there be changes, but as yet the Commonwealth government is to respond to the recommendations.
There are three models of surrogacy regulation throughout Australia:
Model 1: No laws: NT
The Northern Territory has no laws about surrogacy. This means that it is legal to engage in surrogacy in the Northern Territory. In reality, all that is available is:
• Traditional, altruistic surrogacy
• Traditional, commercial surrogacy
As there are no laws, there is no ability to obtain a parentage order. This then impacts on any potential surrogates who live in the Northern Territory when the intended parents live interstate: if the surrogate gives birth in the Northern Territory, then a parentage order made interstate will not be able to name the intended parents as the parents of the child, as there is no ability to alter the birth register.
For the same reason, namely the inability to obtain an order, the only IVF clinic will not provide surrogacy services. Because of licensing requirements the clinic cannot offer commercial surrogacy services.
Model 2: Light regulation: Qld/NSW/ACT/SA/Tas
The key feature about this model is the need to have a surrogacy arrangement. The arrangement is not required to be in writing, but if not obtained, doctors will not treat and courts will not make parentage orders.
The common feature is that there is mandatory counselling and legal advice before the surrogacy arrangement is signed.
Queensland requires counselling beforehand, and an independent assessment after.
NSW, when it followed the Queensland model, requires this too, but also requires relinquishment counselling of the surrogate and her partner after having given over the child. In practice there appears to be little benefit in relinquishment counselling, as any issues that might be raised there can be adequately raised in initial counselling, in the obtaining of legal advice and in the report process.
ACT requires counselling and assessment from an independent counsellor which can have occurred before or after the surrogacy arrangement is entered into.
SA is similar to Queensland, but before the surrogacy arrangement is signed up, there must be a counsellor who makes an assessment of the suitability of the surrogate (it is not said how this will be achieved, nor whether the intended parents are to be counselled at this point) and more counselling, from different counsellors of the intended parents and the surrogate and her partner. (The parties see their counsellors.)
Tasmania largely follows on the Queensland model, with some additions from SA and NSW. While a magistrate can order an independent report, the requirement is that a counsellor see the parties before the process.
My views as to best practice:
· Have one counsellor undertake pre-signing counselling for all parties, who provides a written report to the IVF clinic, which is also made available to the parties, and if the matter proceeds to court, to the court. It is essential in my view for issues of difference to be sorted out in counselling, and that the parties although they have different perspectives have a common shared vision for the child and the surrogacy arrangement. It is my view that the South Australian model potentially hampers this process at commencement.
· There ought to be a post-birth independent assessment much like a family report, so that the court can be assured that the orders it makes are in the best interests of the child.
· The practice of one of the pioneers of surrogacy in Australia, the Canberra Fertility Clinic is the ideal as to counselling: namely after initial counselling, that there be counselling between the key parties (typically the intended mother and the surrogate) at:
• 3 months pregnant
• 6 months pregnant
• 3 months post-birth
I am of the view that it is essential that any possible difficulties are likely to be ironed out through counselling. Given that it is likely that the surrogate and her partner will play a part in the child’s life for the rest of their lives, a smooth start for that child’s life is essential. I don’t believe that this process of extra counselling on the Canberra model needs to be part of regulation, but part of best practice standards adopted by, say, the Australia and New Zealand Infertility Counsellors Association (ANZICA).
Model 3 Heavier regulation: Vic and WA
Both Victoria and WA have a State regulator. The perception of intended parents is that the system is very slow, costly, and invasive. I am told that the process to obtain approval from the Patient Review Panel in Victoria takes about 2 months, but I have had clients who spent 18 months going through the bureaucracy of their IVF clinic before treatment could commence. They gave up, and decided to go overseas instead.
The most damning words about what has happened in Western Australia were those of the Tasmanian Leader of Government Business in the Legislative Council, Mr Farrell, when rejecting the Western Australian model as a model for Tasmanian laws on surrogacy:
“I have been provided with a report that shows that when debating the surrogacy reforms in Western Australia the Attorney-General stated there were between 40 and 50 couples awaiting the passing of surrogacy legislation and that the government anticipated approximately 25 applications per year for parentage orders. After the legislation was passed it was nearly two years before any applications were received by the approval body. By November 2010, two applications for surrogacy had been approved and a further one was under consideration. The author of the report surveyed those people who had identified as wishing to utilise surrogacy but who had not done so. Overwhelmingly, the response was that the people simply could not meet the requirements of the legislation. Of those surveyed the majority were still intending to pursue surrogacy but outside the parameters of the legislation. The result of this is that there will continue to be children being raised by people who do not have legal parentage of them. As I outlined earlier, this is not in the best interests of the child.”
One might think that with heavy regulation and pre-approval that a written surrogacy arrangement is required. I recently was involved in a case from Victoria where the parties had obtained approval, and then had the child, without there being a written surrogacy arrangement! Not surprisingly, without ideas being reduced to writing, the parties fell out- with the surrogate and the intended parents having differing expectations about the surrogate’s role.
In my view surrogates are amazing people. They are prepared to risk their lives to enable others to achieve the joy of parentage. In my view they ought to be cherished. South Australia and Victoria apparently gave little thought about how to protect them.
Rule 7: Children have a right to know who they are, and where they come from.
“Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”
“It is important to remember, when looking at surrogacy from a legal point of view, that each surrogacy arrangement involves real people with real emotions. Most important of all is the child, who must be assured of their safety, citizenship and identity.”
I believe that it is the right of every child to know where they’ve come from, and that this is a fundamental human right.
In our country there was a shameful practice which peaked in the 1960’s and 1970’s and which has resulted in apologies from State governments and the Federal government. It was the removal of children from their mothers, typically single women, at birth or within a couple of days of birth to be adopted by “good families”. This was often undertaken by religious organisations with the best intentions. It copied a practice that was undertaken for many decades when children were forcibly removed from indigenous mothers and adopted out to “deserving” couples. We are still dealing with the ramifications of those policies today. What has been obvious in listening to the stories of those who were adopted is that often they don’t know who they are or where they came from.
I recall many years ago acting for a husband in a Family Court custody dispute. The husband and wife had three children aged 5, 7 and 8. The dispute was bitter. The key event that led to the breakdown of the marriage and the bitterness of the dispute occurred many years before the marriage. It was the night before the future wife’s 21st birthday. On that night her mother called her in and said: “Darling, there’s something we need to tell you.” The 21 year old sat down and was told, for the first time, that she was adopted. She was devastated and from that point on when her parents had told her such a fundamental lie she was never able to trust anyone ever again. That pattern of behaviour ultimately led to the breakdown of the marriage and no doubt lifelong impact on their children and probably their grandchildren.
It is essential in my view that intended parents are honest with their children about where they came from. It is essential that they identify for their children that there was a magical woman who was a surrogate. The ideal outcome is to have an ongoing relationship with the surrogate. I am extremely concerned about the model that is being adopted by many Westerners, but particularly by many Australians going to Thailand and India. I call this model the set and forget model. If they meet the surrogate it is only briefly. Often the surrogate does not speak English and after the transaction is done she goes back to her own village never to be seen from again.
What will happen to this child later on when he or she wants to find out who the magical woman was who carried him or her for the first critical 9 months and without whom he or she would not be in existence?
I am also deeply troubled that in some jurisdictions, particularly in India there is an insistence on anonymity of donors. Australia has pursued a model, after rigorous inquiry, of donors either being known or open identification once the child turns 18, giving the child the option of having on going contact. What if as a matter of practice the child doesn’t have that choice and can never know who was genetically the parent and may never know their full family medical history?
I have recently been told that in some clinics in India that there is a mixing of eggs, a lack of paperwork, and that the donor that the parties think that they are getting is not the donor who provided the gametes. Incidentally, I have also learnt that in some clinics it is not uncommon practice for multiple embryos to be implanted, to guarantee a result. Of course this places the surrogate’s life potentially at risk.
In order to guarantee a result, this necessarily involves selective reduction. Because only so many eggs are produced by donors, this means that it may not be uncommon for eggs from different donors to be implanted into the same surrogate. While intended parents believe that they are getting twins, and the sperm may be from the same intended parent, the maternal DNA might be unalike.
As of 22 April, 2013, Passports Australia has required intended parents ensure that they secure the signature of any person who has parental responsibility for a child so that a passport issue for a child . Passports Australia has in turn defined the person who has parental responsibility as the surrogate. What Passports Australia has not said is that if the surrogate were in a de facto relationship or married at the time of conception, then the consent of her partner or husband is also required.
Be that as it may, in the set and forget model of surrogacy seen in India and Thailand in particular, this issue may increasingly cause intended parents grief when children’s passports need to be renewed every 5 years. It may prove impossible to locate, let alone obtain the consent of the surrogate and her husband/partner to a new passport issuing.
Before 22 April, 2013, Passports Australia did not need the written consent of the surrogate and her husband/partner to the issue of the birth certificate. Therefore passports have issued for children where that consent was not required, but when a renewal of that passport is sought, the consent of the surrogate (and her husband/partner) will be required.
Recently I have managed to persuade Passports Australia to issue passports for clients who have US orders, without the need of obtaining the consent of the surrogate.
Rule 8: A birth certificate may not make you a parent.
You may be a parent for some purposes but not others. It seems like a remarkable proposition, but some laws may recognise you as a parent in your home jurisdiction but other laws do not as I have illustrated above under Rule 6. It can be extremely distressing to clients to hear that their home country recognises them as parents only for some purposes and not others.
It is an absurdity worthy of Sir Humphrey Appleby that s.69R of the Family Law Act 1975 (Cth) states the possibility of recognising overseas birth certificates, but no overseas jurisdictions are prescribed! Intended parents are stunned to learn that their name on the birth certificate is not, on the face of it, recognised in Australia.
However, as they are keen to point out, that same birth certificate is recognised by the local school, Medicare and Centrelink offices as to parentage and identity for the child. As they have pointed out to me, it enables the payment of money to them on the basis of parenthood by the same Government that says that they are not parents!
The impact of the failure to prescribe any jurisdiction is also felt at the State level, as part of the statutory scheme, for example, section 25 of the Status of Children Act 1978 (Qld). It seems extraordinary that no jurisdiction in the world, such as California or the UK, for example, is recognised in Australia.
Australia has a schizoid way of saying who is a “parent”.
In essence, there are three ways to say who is a “parent”:
Australia, confusingly, has chosen all three! It has done so this way:
· Under the Status of Children legislation in each State and Territory (which cover parenting presumptions), adopted by the Family Law Act, the approach has been that of defining by birth. That definition in turn has in part made its way to the Australian Citizenship Act. This has been the approach taken in most Family Court cases concerning overseas surrogacy.
· The approach of the Department of Immigration and Border Protection, the body which administers the Australian Citizenship Act, which has largely relied on genetics.
· The approach of two recent court decisions, which have relied on intent, and the reality of who was parenting the child concerned.
Therefore, a person might be recognised as a parent of a child for the purposes of citizenship, but because that person was not the birth parent of the child or married to or a partner of a birth parent of the child, is not a parent for State law purposes, and may not be a parent under the Family Law Act.
It is obvious that there may be a difference between a parent as a matter of law and a parent as a matter of genetics. If a child is born to an Australian citizen who is a parent then by virtue of the Australian Citizenship Act 1997(Cth), the child is taken to have acquired Australian citizenship by descent. If a child is born overseas where the child has been conceived naturally, there is no question who is the parent and who is the child. Genetics apply.
A different approach as to referral to the DPP was taken by other judges, for example:
• Justice Stevenson in the earlier decision.
• Re Mark (2004) - where Justice Brown declined to refer.
• Lowe and Barry (2011) where Justice Benjamin did not refer.
• Ellison and Karnchanit (2012) where Justice Ryan did not refer.
Justice Watts referred because he believed, probably correctly, that there had been an offence committed under the then Surrogate Parenthood Act 1988 (Qld). However, at the time of the referral, the time for prosecution had passed. The children were born in August 2009. The time of the referral was 30 June 2011. Almost two years had passed. Prosecution in Queensland for the relevant offences had to be commenced within 1 year of the commission of the offence. The husband and wife were not prosecuted.
On the same day, Justice Watts referred another Queensland couple to the DPP for possible prosecution. They were well and truly inside the limitation period. They were not prosecuted either.
To rely on legislation as to parenting presumptions that did not contemplate international surrogacy arrangements, has resulted in what appears to be more and more difficult reasoning.
In Ellison and Karnchanit, for example:
• Mr Ellison, who was the genetic father of the child, and named on the Thai birth certificate, was not recognised by that process as the father;
• He was recognised as the father following the discovery that at the time of conception the surrogate was not in living in a de facto relationship;
• It is unclear who might have been the mother- whether it was the intended mother, Ms Solano, the birth mother Ms Karnchanit, or the anonymous egg donor. In any event, Ms Solano was not recognised as the mother, even though this was no doubt her and Mr Ellison’s intent when entering into the surrogacy contract.
Three of the difficulties of defining a parent by birth (and thereby excluding the intended parents) are that:
· The person who had always intended to be parent, was the driving force to ensure the child’s creation, and parents the child on a daily basis may never be recognised at law as a parent (and therefore the child is never recognised at law as that person’s child, with potential adverse impact on the child’s psycho-social development);
· The need to obtain the consent of the birth parent every time the child’s passport needs to be renewed;
· The risk that children may unintentionally be disinherited.
A parent by genetics: the usual approach taken by the Department of Immigration and Border Protection
I understand that the approach taken by the Department varies from country to country and specifically:
· In India the approach of the Department is to insist that there is a genetic connection.
· In Thailand the approach of the Department is to insist on a genetic connection.
· For those intended parents going to the United States the approach appears to depend on the officer of the Department. Some are insistent on DNA testing. Others are satisfied with the making of custody orders, consistent with H v Minister for Immigration and Citizenship (see below for discussion of this case).
The formal position of the Department is as follows:
“A parent-child relationship is a question of fact to be determined by the department with regard to all the relevant circumstances.
In the majority of surrogacy arrangements, at least one of the intended parents is also a biological parent of the child. Normally, the biological parentage can be readily determined through medical records and/or DNA testing. Provided that DNA testing is carried out to approved standards the result of DNA testing is given substantial weight when determining if a person is a parent of another person.
See: Fact Sheet 23 – DNA Testing
Where there is no biological connection between an Australian citizen who is the intended parent and the child born through an international surrogacy arrangement, or where such a biological connection has not been satisfactorily established, it is necessary for an Australian citizen to provide other evidence to demonstrate that the Australian citizen was in fact the parent of the child at the time of the child's birth. The type of evidence that would support such a claim is likely to require greater scrutiny and verification than DNA evidence. Consequently, an application based on such evidence may take significantly longer to decide.
Evidence that the parent-child relationship existed at the time of the child's birth may include, but is not limited to:
· A formal surrogacy agreement entered into before the child was conceived
· Lawful transfer of parental rights in the country in which the surrogacy was carried out to the Australian citizen before or at time of the child's birth
· Evidence that the Australian citizen's inclusion as a parent on the birth certificate was done with that parent's prior consent
· Evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support and making arrangements for the birth and prenatal and postnatal care
· Evidence that the child was acknowledged socially from or before birth as the Australian citizen's child, for example, where the child was presented within the Australian citizen's family and social groups as being the Australian citizen's child.
· Evidence that the Australian citizen treated the child as his or her own from some point in time after birth would not by itself be evidence that the Australian citizen was the child's parent at time of birth, but it would lend weight to evidence of the types previously listed.”
A parent by intent: H v. Minister for Immigration and Citizenship (2010)
The Federal Court rejected the approach taken by the Department of Immigration and Citizenship. The Department argued that the relevant test for who is a parent and who is a child under the Australian Citizenship Act was determined by genetics or determined by the relevant definitions under the Family Law Act.
In two cases decided side by side (neither of which was a surrogacy case) the Federal Court determined that with the poor drafting of “parent” and “child” under the Australian Citizenship Act, who was the “parent” would be determined by fact in each case, but appears clear to say demonstrated intent.
The Full Court of the Federal Court held:
“Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the ‘common bond’ mentioned in the preamble. Within this framework, there is, however, little contextual support for the proposition of the word ‘parent’ has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word. Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community…..Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word ‘parent’ in s16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage.”
The Court went on to say:
“There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of the s16(2), has the meaning it bears in ordinary contemporary English usage. Indeed legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.
The word ‘parent’ is an everyday word in the English language, expressive of both the status and the relationship to another. Today, in the Citizenship Act it self-recognizes, not all parents become parents in the same way….This is not to say that parents do not share common characteristics; an everyday use of the word indicates that they do.
Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; Today, biological connection in specific incidences may not be enough………. Perhaps in a typical case, almost all the relevant considerations, whether biological, legal, or social will point to the same person as being ‘the parents’ of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person is one’s own and treating him or her as one’s own.
The ordinary meaning of the word ‘parent’ is, however, clearly a question of fact, as is the question of whether a particular person qualifies as a parent within that ordinary meaning, implying s16(2)(a) the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be property described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parents’ conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledges the applicant as his own before and at the time of birth and, thereafter treated the applicant as his own, may justify a finding of that person as a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth…….
We can discern no relevant justification for holding…….that a person can only be a ‘parent’ within the meaning of s16(2) where it can be established that he or she has a relevant link to the applicant. If the Minister’s arguments in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on a DNA test undertaken for other reason, that under the law he is not and never was a citizen……….As a practical matter, we do not consider that Parliament would have intended the likely unfortunately results of the Minister’s construction……….The practical effect of this construction would be to accord the science of genetics a status Parliament has not given it.”(emphasis added)
Significantly, the court found that:
· An Australian man who met a Chinese woman on the internet when she was pregnant to a Chinese man, and agreed to marry her, have his name on the birth certificate as the father of the child and raise the child as his own, was a parent. On this point the court took a similar approach to the US Supreme Court; and
· An Australian man who for 30 years had believed he was the father of a child, but was not, but had acknowledged paternity, brought the child into his family including paying child support, and he and his wife and children visited the child, was also a parent.
The significance of the case is:
o It sets the benchmark for who is or who is not a parent of a child for the purposes of the Australian Citizenship Act;
o It sets out clearly that proscriptive definitions of who is or who is not a parent can fail because they do not take into account unusual or unexpected cases.
In neither case was there any DNA link between the two men and their children. Neither did the Family Law Act definitions apply.
Clearly, if an intended parent enters into a surrogacy arrangement with the intention of raising a child of their own (even if they do not supply their own DNA) then they may well be a parent having regard to the facts of the case as decided in H.
This approach was similarly accepted in Re Blake  FCWA 1, where the Family Court of Western Australia noted that if the birth definition of who is a parent were adopted, under that State’s Artificial Conception Act 1985 (WA), then neither of the intended parents would be recognised as parents, but instead looked to the intention of those concerned, or as her Honour referred to it, the reality- who was parenting the children.
Rule 9: You may be a parent for some purposes but not others.
Why are custody orders needed for Australians going to the US, but not in India?
Each overseas country has its own procedures. Officers of the Department of Immigration and Border Protection wish to ensure, as part of Australia’s international obligations, as Australia is a signatory to both the Hague Inter-Country Adoption Convention and the Hague Abduction Convention, that children born through surrogacy arrangements aren’t children who have been improperly abducted, sold or adopted in the overseas jurisdiction.
India is not a signatory to the Hague Abduction Convention, but the United States is. Because the United States is a signatory to the Abduction Convention, the best practice is to have court orders in place to overcome issues to do with the Abduction Convention.
One feature of Ellison and Karnchanit is that the Australian intended parents simply did not know the marital status of the surrogate. If the surrogate had been married, her husband could quite properly make complaint to Thai authorities that his child, who was habitually resident in Thailand at the time of birth, had been removed from Thailand without his consent, prompting action under the Abduction Convention.
It is of great surprise to intended parents to be told that although in the overseas jurisdiction they were recognised as parents, for example on the birth certificate, surrogacy contract or in the court order, that they might be recognised under the Australian Citizenship Act as parents, that the overseas birth certificate is disregarded for these purposes (such as seen in Ellison and Karnchanit), and that for parenting presumptions under State and Territory laws (with now the possible exception of Western Australia given the decision in Re Blake, and for Victoria, South Australia, the Northern Territory and Tasmania following the decision in Green-Wilson and Bishop, discussed above) they are not parents.
If the labyrinth were not difficult enough, it is possible that if the surrogate were single that the intended parents (or at least the genetic father) is a parent under Australian law.
They wonder, quite rightly, how they could be parents for some purposes of Australian law, and not others.
Not being a “parent” generally makes little practical difference by the time intended parents seek advice, as:
o The child is probably already an Australian citizen;
o The child as a citizen is entitled to a Medicare card, and with the birth certificate Centrelink benefits can be claimed, and the child can be enrolled at school;
o Arriving at accident and emergency at 2am with the child in tow, the parents are not going to be asked about the legality of parenthood More likely they will be asked to fill out a form, and for Medicare and health insurance details.
The differences come later on:
· If the intended parents separate, there may then be argument about whether or not they were a “couple”. If the court forms the view that they were not, then that may prevent the non-biological parent having a relationship with the child.
· The theoretical difference that they are not viewed as “parents” in the eyes of the State, at least for some purposes.
· Sooner or later it might be argued that child support is not payable .
· That the child may be accidentally disinherited, due to a lack of a (or poorly drawn) will of the parent.
Two recent decisions have thrown the matter into stark relief
Case 1: Mason and Mason
The significance of Mason & Mason  is that Ryan J changed her mind from her previous decision in Ellison & Karnchanit  to a position where she believed that State legislation concerning parenting presumptions was the legislation that concerned who was a parent, determining that the applicant was not a “parent”.
Her Honour noted that the Commonwealth Parliament sought to adopt the same scheme that operates in the States and Territories:
“namely a scheme for the declaration of parentage and, for children born or a surrogacy arrangement, the transfer of parentage in accordance with an order made by the Supreme Court of NSW.”
Her Honour did not deal with the approach taken by Justice Crisford in Blake & Anor  FCWA 1 where her Honour dealt with the “reality” and looked at in effect the intention of the parties as to who was to be the parent.
If Justice Ryan had adopted the approach taken by Justice Crisford then in my view she would have found that the applicant was a “parent”.
Of concern are the facts contained in paragraph 4 of the judgment:
“The contract provided that the total compensation Rs 2,25,000 (Rupees two Lakhs twenty five thousand) or a vaginal birth or Rs 2,60,000 (Rupees two Lakhs sixty thousand) if the mother had a caesarean delivery. It is not necessary to summarise the entire agreement but it should not pass without comment that the provisions which limit the birth mother’s ability to manage her health during the pregnancy and make decisions about delivery of her babies, are troubling. It is also troubling that this 29 page document is written in English. It is signed by the applicant and, because she is illiterate in English and Hindi, the mother’s attestation is her thumb print. There is nothing in the document which suggests that before the birth mother signed it that it was read and translated to her.”
I also note paragraphs 67 to 69 of her Honour’s judgment:
67. “As to the children being born from a surrogacy arrangement by mothers they are unlikely to know, the family consultant said that at some point in the children’s lives, they may have “an intense, emotional identity crisis about this aspect of their lives”. She went on to say:
31. ... Borrowed from the discourse about adoption, the twins may potentially face a more complicated task of making sense of their place in the world because they have grown up in a family whose parents faces do not look like theirs and without experiencing their “mother”, and her culture. There may be times in [the children’s] lives when they will be pre-occupied with this task. They may seek contact with their mothers at significant life cycle transitions. It is also possible that it may never be an issue for the twins.
32. The adoption discourse suggests that, of those who make enquiries about their adoption and have difficulties when adjusting to the news, these emotional difficulties are often a result of pre-existing psychological vulnerabilities and where there were already troubled family dynamics within the adoptive family. [The applicant] and [the respondent’s] declaration at this point of openness may be a protective factor for the twins alongside the development of secure and healthy parent-child relationships. In addition to this, the parents have actively sought out other families in similar positions, and if these friendship groups can be continued, there may be some benefit to the twins in connecting to other children in the same position.
33. Another argument proffered in the discourse on parentage is that a child’s genetic identity forms part of a child’s history. There may be medical advantages in the children knowing their parentage. The donor mother and [the birth mother] and their families will, apparently, be unlikely and/or unable to seek out [the children]. There may be significant class issues separating the families which may well be apparent to the children as they explore their Indian backgrounds further. The twins may realize that their mothers and any half siblings experienced life very differently to them. Again, this is an issue that the parents can assist the children to understand and deal with. (family consultant’s report dated 6 June 2012)
68. As to the ultimate issue, the family consultant strongly recommended that the applicant and respondent be awarded equal shared parental responsibility and that the children reside with them. She was as certain and comfortable as one can be about predicting the future that the children “will thrive” in the care of the applicant and respondent. In short, she gave a glowing report about them which brims with optimism for their and the children’s future together.
69. Her opinion accords with my own assessment. I am strongly satisfied that the applicant and respondent are astute to the challenges that lie ahead and as well-equipped as anybody could be to meet them.”
Case 2: Groth & Banks 
Four days after Mason was delivered, Cronin J 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. Neither Case, Mason nor Groth and Banks referenced the other.
His Honour was of the view that the provisions of the Family Law Act overrode the relevant Victorian legislation that declared that the sperm donor was not a parent. Therefore his Honour did not consider the consent form signed by the sperm donor in which he acknowledged that he was only a donor and not a parent. (because it was signed under State, not Federal, it was therefore irrelevant).
This decision has sent a shockwave through IVF clinics as it clearly states that known donors in certain circumstances are no longer donors but are parents and that as a result may have rights and responsibilities under the Family Law Act, have a liability to pay child support and their child may have a right of inheritance.
His Honour stated:
“In Re Mark: An Application Relating to Parental Responsibilities  FamCA 822; (2003) 179 FLR 248; (2003) 31 Fam LR 162; (2003) FLC 93-173, Brown J considered the differing positions of a sperm donor who was unknown or anonymous, and a donor who had entered the process with the intention of fathering a particular child. Her Honour held that a person in the latter position was rightly considered a “parent” for the purposes of the Act. If this were not the case, there would be no need for legislation such as the Status of Children Act 1974 (Vic) to remove the rights and responsibilities that might otherwise attach to anonymous or unknown donors.
Brown J reproduced the Oxford English Dictionary definition of a parent, being “a person who has begotten or borne a child”, which was also relied upon in Tobin. In Re Mark, the man had donated his genetic material with the express intention of fathering a child he would parent. Moreover, her Honour found at ,[t]he fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of [the child].
The applicant here submits that the same course should be taken in this case. His argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life. Concerns of public policy, such as those raised by Guest J in Re: Patrick (An Application Concerning Contact)  FamCA 193 at  that unknown sperm donors could be considered “parents” under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.
Thus, the interpretation of “parent” in the Act allows each case to be determined on its particular facts.
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law. I return to those exclusions below.
Part VII of the Act contains multiple references to the parents of the child as “either” or “both”. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.
The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes.”
Going back to my earlier analysis, there are three ways of saying who is a parent:
• By genetics;
• By birth; or
• By intention.
The approach taken by his Honour was by genetics, but also one might think intention. The basis on which the applicant was determined to be a parent relied on genetics. Nevertheless his Honour distinguished between known and anonymous donors. It is my view that if a genetics based approach were to be taken then the intention of the donor is irrelevant. Following the analysis to conclusion, anonymous donors to single women would be considered to be parents because each man is the biological progenitor of the child.
What this case illustrates as does Blake and Mason & Mason is that consideration should be given in determining who is a parent under a surrogacy ART arrangement the test ought to be intention of the parties involved.
The impact of this case from an international point of view is that there might be a benefit in a surrogate for Australian intended parents being single. Each case will however depend on its own facts.
Rule 10: There is insurance and there is insurance
Travel agents are insistent that when Australians travel to one country in the world they must have travel insurance. That one country is the one with the world’s most expensive health system- the US of course.
Insurance is one of those tricky things that need to be covered for those undertaking surrogacy. Something might go wrong. South Australia, as I set out above, in effect makes it a criminal offence to provide life insurance for the surrogate. Victoria is unclear and at face value appears to do likewise, but the regulator has stepped in and said that it is entirely appropriate to provide for life, disability and health insurance for the surrogate.
Australia has a mixed form of medicine. Part of our system is met by the taxpayer, via Medicare (for all Australians) and part of it is met privately, through health insurance.
When a child is born in Australia through surrogacy, the child is an Australian citizen and entitled to Medicare (provided by the taxpayer) from birth. If the surrogate is not an Australian citizen or permanent resident giving birth in Australia, the child may not then be entitled to Medicare, but once the parentage order is made in favour of an Australian citizen or citizens, then by combination of the relevant State Surrogacy Act, the Federal Family Law Act, and the Australian Citizenship Act, the child then becomes an Australian citizen and is entitled to Medicare.
Australians living outside Australia may or may not be entitled to Medicare in Australia, depending on how long they have lived overseas. As with all insurance matters, this is a matter that ought to be planned for before the surrogacy arrangement is entered into, not afterwards.
Disability and life insurances are provided privately.
The number one stumbling block for Australians undertaking surrogacy in the US is that of cost. The single biggest factor in that cost is health insurance and medical cost.
Rule 11: A lawyer in one place may be useless somewhere else.
In July 2010 after 20 odd hours of travel I arrived in Memphis from Brisbane. Within a few hours of getting out of the plane, I was walking down Beale Street. I am a keen photographer. I was approached by a teenage girl wearing what appeared to be two tea towels which I then recognised were skimpy items of clothing. She asked if I were the official photographer for Beale Street. I said that I was a tourist from Australia. To my complete bemusement, she insisted that I take her photograph and those of her friends.
After the photos were taken, this girl asked me what I did for a living. I said that I was a lawyer. She then said “Can you help me? I’m in trouble with the county? I might go to jail.” I protested that I was from Australia and that I was not a local lawyer. Her friend said: “No Lurline he ain’t a local. You need a local lawyer.”
What Lurline’s friend understood but many intended parents don’t understand and indeed some lawyers undertaking surrogacy work clearly don’t understand is that the law is different in different places. Therefore if there is a matter which touches different jurisdictions then advice should be obtained from lawyers in that jurisdiction.
Rule 12: Lawyers and other professionals should work as a team.
Rule 2 stated that what is legal there may result in jail here. It is essential so far as possible that lawyers are able to work as a team so that, as far as possible the clients are able to have a seamless approach. If there is a network with a surrogacy agency and with doctors and other associated professionals, all the better.
I say “so far as is possible” because for my clients undertaking commercial surrogacy overseas who ordinarily reside in Queensland, New South Wales, the ACT or are domiciled in New South Wales, I can’t encourage them or facilitate them to commit the act of commercial surrogacy. The relevant jargon in Queensland is aid, abet, counsel, procure or conspire with and the relevant jargon in New South Wales is to induce or conspire with. As an officer of the court I am obliged to remind my clients that what they are proposing to do is illegal and that I must to everything as a lawyer to discourage them from doing so. I also do not want to commit an offence!
My number one gripe with international surrogacy matters is being kept out of the loop. The number one complaint I have received from clients about international matters is that the process is not seamless- that different people do different things for different parts of the journey, but no one follows them through all the way, to make sure that each part goes smoothly. By far the easiest way to ensure that the process is as seamless as possible is to be included in communications. Just because I’m a lawyer in another jurisdiction doesn’t mean I’m an idiot or a yokel. The easiest way to include me in communications is to cc any email to me and to have systems in place in your office to ensure that occurs. I will extend the same courtesy.
The cost to a client of the lawyers doing so is minimal but the benefit is that the client hopefully will not fall between the cracks; issues will be identified and dealt with quickly and efficiently, and that above all the client will feel that they are being looked after (which they are) and that they are not a number (they are not).
The essence as to how I undertake business is that subject to my professional duties, particularly the duty to my client, I believe that the essence in doing business is having long-term trusting relationships with others. This means we can refer work to and from each other and also mean that we can trust each other to get the result right.
Several years ago, I heard Dr Kim Bergman from Growing Generations speak of the mantra which is required for a successful surrogacy arrangement. I would say that it’s the essence also of a relationship between lawyers and others involved in a successful surrogacy arrangement:
1. Mutual respect
Harrington Family Lawyers
25 September, 2015
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1 Stephen Page is an IAML fellow from Brisbane, Australia. He is a partner of Harrington Family Lawyers, and was admitted as a solicitor in 1987 (Qld), 1989 (High Court of Australia) and barrister and solicitor (South Australia) 2013. He is an international representative of the ART Committee of the American Bar Association, is the first international fellow of the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and chairs the Surrogacy Australia legal committee. Stephen in November 2014 obtained parentage orders in Qld, NSW, Vic and SA. In 2012 he appeared for the surrogate in a case which set a worldwide precedent – that conception is at pregnancy, not fertilisation.
 Statements by a client to the writer, 2012 and 2013. The client was the surrogate for her daughter.
 . Private statement by a judge to the author in 2015. When the judge originally said that the roles of a judge and a lawyer were different, I disagreed, saying that we had both sworn an oath of office.
 Lowe and Barry  FamCA 625, - per Benjamin J.
  Fisher-Oakley and Kittur  FamCA 123 at - per Cronin J
 Carlton and Bissett  FamCA 143 per Ryan J
 Relevant to offences in NSW
 Since this case example, India has refused to take any intended parents from Australia.
 And by way of contrast see the decision of Groth and Banks, referred to below, which was delivered 4 days later.
 At 
 Although the House of Representatives, Social Policy and Legal Affairs Committee has recommended an inquiry into surrogacy.
 I might add that I was not involved in the initial process, but commenced acting when court proceedings were about to be filed.
 As seen for example in Fisher-Oakley and Kittur FamCA 123.
 WA residents are already recognised as parents following the decision in Re Blake  FCWA 1
 At 
 International Covenant on Civil and Political Rights (1966), Article 24
 Chief Federal Magistrate Pascoe, speech viewed at http://www.federalcircuitcourt.gov.au/pubs/docs/Speech%20-%20Pascoe%20-%20LawAsia%20-%202011.pdf on 28/4/13
 Re Evelyn  FamCA 2378;  FamCA 55
From the BBC’s Yes Minister. A triumph of bureaucratic obfuscation.
 Our Social Security Department
 FamCA 424
 US $3664 as of 25/1/15
 US $4235 as of 25/1/15
  FamCA 430
 And it speaks aas to the global nature of surrogacy that after the parties in Mson & Mason obtained orders in the family Court of Australia in Sydney, they all moved to England and obtained surrogacy orders there. The orders in Australia were apparently not fully recognized in England.
 at  –