Tuesday, 28 February 2017

Single people aren't good enough to be parents through surrogacy in South Australia- but LGBTI couples are now ok, apparently

When the exemptions to the Sex Discrimination Act ended on 1 August 2016, Jay Weatherill had a problem. This is because it is an offence in South Australia for an IVF doctor to help single people and gay and lesbian couples undertake surrogacy, and in some cases lesbian couples, some single women and all single men undertake IVF: but if doctors continued to refuse to do so they were acting unlawfully under the federal Sex Discrimination Act.

In simple constitutional terms, if there are conflicting federal and state laws, the federal laws overrule the state laws to the extent of the inconsistency. A recent example was seen in the High Court in the equal marriage case.

Something had to give. The obvious thing was to change South Australian law to get rid of discrimination on IVF and surrogacy so that singles and LGBTI couples could access both. And this is what the Weatherill government sought to do. First up it held an inquiry, well in advance of the end of the exemption, run by the law reform institute seeking to identify how the law discriminated against LGBTI couples- and how to change the law.

I took part in that inquiry and submitted that discrimination in IVF and surrogacy should end for LGBTI couples and single people.

The inquiry recommended an end to discrimination.

Then the government introduced an omnibus bill to get rid of the discrimination.

Then things did not go exactly according to plan.

The first thing the government did was to blink. It decided to split the first bill, so that the changes to IVF law and surrogacy were dealt with in a separate, later bill.

The second thing that happened was that it got to the Upper House - the Legislative Council- where the government does not have the numbers. Amendments made at the behest of Families First made major changes to the legislation, and provide a forerunner to what might happen with marriage law reform:

  • IVF doctors could object to providing ART or surrogacy to singles or LGBTI couples- but if they did so they would have to refer the patients on to someone else, and the doctors would have to be on a  public register. My view is that very few doctors will want to be on that public register, named and shamed,  as it is likely to be the death knell of their practice- but time will tell.
  • while single people could access IVF, as well as LGBTI couples, this meant in effect only single women. This is because the surrogacy laws would be extended only to LGBTI couples. Single men and women need not apply. Therefore single women could receive ART assistance (assuming the doctor did not object) but single men (assuming they were not transmen seeking to become pregnant) , who of necessity needed to rely on surrogacy- could not. 
It seems extraordinary and shameful, for example, that single women who have been cancer survivors, or have had the misfortune of being born without a uterus will not allowed to become mums in South Australia.

I have acted for single women who have become mums through surrogacy. My clients have included cancer survivors and women who were born with a uterus.

It is expected that the laws will pass the Lower House- the House of Assembly- any day.

It is likely that the laws continue to fail the test under the Sex Discrimination Act and therefore:

  • any doctor who refuses to provide treatment, becoming a registered objector, is in fact acting unlawfully under the Sex Discrimination Act;
  • and doctor who refuses to assist a single man or a single woman undertake surrogacy is again acting unlawfully under the Sex Discrimination Act
South Australian politicians should know better. After all, Mrs Pearce when she was refused IVF because she was a single woman (divorced) due to South Australian laws prohibiting IVF for single women, took South Australian authorities to court alleging a breach of the Sex Discrimination Act. She won.

In a similar case, Dr McBain, a Victorian IVF doctor, took the Victorian government to court when he found that he was not allowed to provide treatment to a single woman, because Victoria's IVF laws prevented him from doing so. He said that the Sex Discrimination Act overrode the Victorian law. He also won. 

Do we really need to have a repeat?

Monday, 13 February 2017

Please help Pride Munyonyo

On Valentines Day, it's good to focus on those who are doing it tough. There are probably few LGBTI people doing it as tough as the LGBTI people in Uganda.

While homosexuality amongst men has remained criminalised in much of Africa, and gay men are blamed for the spread of Aids, Uganda is in a league of its own. In 2014 the Anti-Homosexuality Act 2014 was passed- making engaging in homosexual acts punishable by life imprisonment. This was seen as a relatively good outcome- because until the Western media had called it "Kill the Gays Bill", and it was widely condemned, the penalty for engaging in homosexual acts was the death penalty.

Somehow, a few very brave souls have started a resource centre for LGBTI people, especially young people. My heart goes out to them and their bravery. They are putting their lives and freedom on the line. This centre is Pride Munyonyo Resource Center. Munyonyo is a suburb of the Ugandan capital, Kampala.

If you are able to, please donate to them. I am sure they can use every cent they can get.

Here is their webpage, which has a button to help donate.

Here is their Linkedin page.

No matter how bad we think we have it in Australia, they have it much worse. Any help they can get will be of much needed assistance.

We hold hands, they point fingers and throw stares

A week and a half ago, my husband Mitch and I were walking home- and copped "faggots" from a  complete stranger. This happens too often.  It shouldn't have happened at all. It is certainly not the worst we have been called. It happened to be the night of the 30th anniversary of my admission as a solicitor.

I put up a two or three line comment about it on Facebook- and over 200 Facebook friends responded, and over 150 comments. Next thing you know, I was asked by the editor of Brisbane times to write an article, in time for Valentines Day. Here it is.

Thursday, 9 February 2017

South Australian shadow Attorney-General calls for commercial surrogacy

The South Australian Deputy Opposition Leader, and shadow Attorney-General, Vickie Chapman, has called for commercial surrogacy to be legalised, to minimise the number of intended parents going to develpoing countries for surrogacy. She did this in a debate about reform of that State's IVF and surrogacy laws so that they are non-discriminatory.

Ms Chapman said:

"We are not dealing with all the issues that go to surrogacy in this bill, and I think that is a shame. I think we need to, and the sooner we do the better. My personal view is that to do it we are going to have to actually except the fact that if we are going to ask a female person to undertake this role and responsibility—which is a major sacrifice—then a fee ought to be able to be paid for that purpose. Otherwise, couples in Australia will continue to go to other countries, exploit other people, pay the fee and not be required to sign up to levels of responsibility that I think we should insist on here.
Let us make that an area of reform that we do address, and that we do try to make sure we protect women in exploitable circumstances in other countries, that we do not allow a situation to prevail in Australia where it is prohibitive for many to undertake this role, just to be repaid their expenses.

I remember that when I was in early adulthood sometimes my sisters—and I have plenty of them—would say to me, 'What would you do in this situation? If one of us couldn't have children would you have a baby for us?' As a sister I said I would, I would do that; if I were fertile (which I happened to be) then that would be something I would do. It was a personal commitment, but not everyone has an available sibling or friend who is prepared to do that.
I think it is important that we have a chance to have control over the terms and conditions the women are in so that they are not exploited, so that the children who are born are protected against circumstances of either abandonment or exploitation. It is time we addressed that. I know it is very hard to get things through without government approval supporting things in this parliament, because it has to go through two houses of parliament, but we do try—and I have a list of bills tomorrow for private member's bills. Every now and again we get one up, but the point is that we do need the government's blessing.
In an area of comprehensive reform such as this, I think it is a missed opportunity for the government to fix it. It is well known. It is an issue that other jurisdictions are starting to deal with, but it seems that the government has had a bit of a hands-off approach to this, other than dealing with a certain group in the community who are seeking status and recognition, which of course is our LGBTIQ community—not unimportant, but it is not the only thing that needs to be fixed. We do need to address this matter."

Tuesday, 7 February 2017

South Australia pauses before making IVF and surrogacy law non-dscriminatory

Moves to remove discrimination in South Australia against LGBTI couples and singles in family formation law have taken a pause. The Weatherill government introduced the Relationships Register Bill to get rid of a whole bunch of discrimination against LGBTI couples and singles, including in IVF and surrogacy, as I posted last month.

However, it is not to be- at least for the moment. The Government successfully managed to get the Relationships Register Bill through both Houses- but there was a bit missing: all the bits related to IVF and surrogacy have been removed. It turns out, the Government decided to split the Bill- so these reforms appear to be still on track- but not quite yet. Hopefully they won't be long.

SA to set up a relationships register

Following action by the Weatherill government, South Australia has reviewed its laws concerning LGBTI people, resulting in the passing of a bill to set up a relationships register in South Australia. The relationships register, to commence at a date to be proclaimed, will bring SA into line with Qld, NSW, ACT, Victoria and Tasmania, which also have relationship registers.

Having a registered relationship can have a major impact on legal issues for a couple. If they split up, for example, then this means it is beyond doubt that at some stage they were in a de facto relationship- potentially saving many tens of thousands of dollars arguing in the Family Law Courts about whether they were or were not in a de facto relationship. Passing this law is a good move.

South Australia to allow same sex couples and singles to adopt

The South Australian Parliament has passed a law which will mean that single people and same sex couples will, for the first time, be allowed in that State to adopt.

Until about a year ago, four Australian jurisdictions prohibited same sex couples from adopting:

  • Victoria
  • Queensland
  • South Australia
  • Northern Territory
Since then, Victoria and Queensland have passed laws removing that discrimination. South Australia's law is to commence on a date to be fixed.

Only the Northern Territory is not changing its laws, and will for the foreseeable future continue to discriminate in this area.