Monday, 27 March 2017

HOORAY! THEY LISTENED! Queensland removes gay panic defence

Last week the Queensland Parliament at last removed gay panic defence from the statute books of Queensland. No longer will men be able to claim that they killed someone in panic because of an unwanted sexual advance to them.

There have been two cases in Queensland where that type of defence was raised- and in both cases those charged were convicted of manslaughter, not murder. Both cases came from the regional town of Maryborough. The then local priest, Father Kelly was resolute in pushing to get rid of the defence.

Others also pushed for the removal over the years. Prominent amongst them were academic, Dr Alan Berman and myself.

Dr Berman and I lobbied two Attorneys-General of Queensland:  Paul Lucas and Cameron Dick. The result was a group of experts, and then partial changes to the defence, but it was recommended by retired Justice John Jerrard QC  that the Government do more. That was in 2011. Then the Government changed - and the Newman Government was elected. New Attorney-General Jarrod Bleijie announced that there would be no change.

The ALP went to the last election saying that they would abolish gay panic defence. The LNP under Lawrence Springborg said that they would support the change. I made a submission to the Parliamentary Committee looking at the Government's Bill in support of the changes.

And then finally last week, those proposals came to fruition- and gay panic defence was abolished. All that effort over all those years finally resulted in meaningful, long last lasting worthwhile change.


Brisbane LGBTI Legal Service to be funded: Qld Government

There are some days it is better than others to wake up in the morning, and today was one of those magic days. Facebook told me that today was the fourth anniversary when I and six other ordinary citizens had defeated a proposal by then Attorney-General Bleijie to criminalise gays, lesbians and singles from becoming parents through surrogacy.

On the very same day, four years later, my husband Mitchell and I were honoured to witness the announcement by the Queensland Attorney-General, Yvette D'Ath, this morning that the LGBTI Legal Service would be funded for the next three years.

As I said to the Attorney afterwards, although I had been alive when the Berlin Wall fell- so anything was possible, and although I had hoped that there would be funding, I never expected it to occur.

The LGBTI Legal Service, which is soon to turn 7, has never been funded by the taxpayer- the only community legal centre in Queensland in that category. LGBTI people are the most vulnerable, on a range of categories, including domestic violence and discrimination, so with this funding they might at long last get better protection.

My blog has been named in the top 60 LGBT blogs worldwide

I am delighted that Feedspot has selected my blog as one of the Top 60 LGBT Blogs on the web. In the words of Anuj Agarwhal, the founder of Feedspot:

I personally give you a high-five and want to thank you for your contribution to this world. This is the most comprehensive list of Top 60 LGBT Blogs on the internet and I’m honored to have you as part of this!

Wednesday, 22 March 2017

Who is going to join me? The first LGBTI legal and regulatory conference is on in May

The first annual LGBTI legal and regulatory conference is being held on 25 and 26 May in Melbourne. I will be speaking there-  about IVF reproductive treatment and stored genetic materials. Who is going to join me?

The topics covered are:

  • same-sex relationships, spouses and divorce
  • birth certificates, passports and gender recognition
  • special medical procedures for transgender teens
  • intersex- misconceptions and surgical interventions
  • discrimination and bullying in schools
  • discrimination issues in the workplace
  • end of life planning
  • relationship breakdown from a family law perspective
  • same sex domestic violence
  • adoption rights
  • international surrogacy and parenting orders- and finally my topic: TAHDAH!:
  • IVF reproductive treatment and stored genetic materials
The chair on day one is Anna Brown, from the Human Rights Law Centre, who has been leading the campaign for equal marriage, and on day two is Professor Nathan Mushin, retired Family Court judge.

There are top quality speakers, including:
  •  William Keogh
  • Kristen Walker QC
  • Dr Michelle Telfer
  • Sally Nicholes
  • Morgan Carpenter
  • Anthony Wood, partner from Herbert Smith Freehills
  • Ben Sayer
  • Paul Boers
  • and of course me.
It is an excellent program, and I encourage everyone to register! Early bird registration through Television Education Network is until 13 April. After that it's full price.

SA LGBTI couples can now pursue surrogacy there

Changes to South Australian assisted reproductive treatment and surrogacy laws that partly remove discrimination started yesterday.

The laws will allow for the first time:

  • lesbian couples without medical infertility (which has traditionally been the failure to fall pregnant after 1 year of heterosexual intercourse- you see the problem) to have IVF or other ART
  • single women to have ART and IVF, even if they do not have medical infertility
  • LGBTI couples to have surrogacy
What the laws won't do, due to amendments in the Upper House brought about by Families First, is to allow single men and women to undergo surrogacy. Doctors will not be able to provide IVF and ART to those patients if they need to undertake surrogacy.

Men and women who are single and cannot have a child except through surrogacy, for example breast cancer survivors, cannot still undertake surrogacy in South Australia and might have to go interstate or overseas.

As well as helping South Australian clients proceed with surrogacy, I have helped clients from South Australia plan to be parents elsewhere when surrogacy was not available to them in South Australia.

The silly change- registered objectors

Some bright spark in Parliament came up with an amendment of being a registered objector. If a person holding an ART registration  objects to treatment of a patient due to their relationship status or sexuality, according to this change- that's OK- BUT the registered person must go on a public register and say so (the name and shame file) and refer the patient to someone else.

At first blush this would appear to an IVF doctor- but it isn't! The registered person, due to the fine print- regulation 6 of the Assisted Reproductive Treatment Regulations must be an IVF clinic. Now which of the four South Australian IVF clinics is going to do that and give their work to their competitors:

  • Repromed?
  • Fertility SA?
  • City Fertility Clinic?
  • Flinders?
I am sure none of them- which makes the whole exercise rather pointless. It was probably assumed by the politician in question that the amendment would cover  doctors, not clinics. Quite simply, it doesn't.

Sunday, 19 March 2017

Should the genetic dad be named on the birth certificate before a domestic surrogacy parentage order is made?

I am very much a believer in getting it right first time. One of my cardinal rules with surrogacy cases is that I hate surprises- or to put it another way, prevention is better than cure. I aim to make my clients' surrogacy journeys as quick, as cheap and above all as stress free as possible.

When it comes to naming the father on the birth certificate when the child is born, I follow the law- which in Australia is (usually) that the surrogate's husband is the father.

 A question I have been asked from time to time is should the genetic father should be named on the birth certificate as the father before a domestic surrogacy order is made? It has been raised with me a couple of times in the last couple of weeks, so I thought it a good idea to set the record straight.

The simple answer is: NO. There are a number of reasons for this, but the basic one is this:

Who is the genetic parent may not be the same as the legal parent.

I'll give an example, say of a New South Wales surrogacy arrangement, where there is a gay couple who are the intended parents, with a married surrogate. One of the gay couple is the genetic father of the child.

Who is the father of the child at birth?

The simple answer in New South Wales is that ordinarily the surrogate's husband is the child's father at birth. His name therefore must go on the birth register as dad. The only circumstance when he won't be the legal father is when it can be shown that he did not consent to the fertilisation procedure.

The point of a parentage order is to transfer parentage from the birth parents to the intended parents. Who then are the intended parents at birth?The answer is contained in the Status of Children Act 1996 (NSW), section 14:

1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.

(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.

(4) Any presumption arising under subsections (1)-(3) is irrebuttable.

So there it is- the genetic father is not the legal parent at birth- the surrogate's husband is the parent.

In seeking a parentage order, s.38 of the Surrogacy Act 2010 requires that the child's birth be registered in accordance with the Births, Deaths and Marriages Act 1995.

The offence

In light of that statutory presumption, the intended father should not be registered as the father on the birth certificate, because to do so is a criminal offence. This is because of section 57 of  the Births, Deaths and Marriages Registration Act 1995 (NSW):

A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.
Maximum penalty: 100 penalty units or 2 years imprisonment, or both.

The caselaw:"at their peril"

While it is possible to have a parentage order made in New South Wales when the intended father was named on the birth certificate at birth as the father, judges have been highly critical of the practice.

For example, see BB v DD [2015] , where the judge said the next time it was heard  in BB v DD (No 2) [2015] said that those who ignored s.38 of the Surrogacy Act did so "at their peril".

The earlier case of S v B; O v D [2014] involved a gay couple who were the intended parents, and a married surrogate. In the words of Justice White:

  1. It follows that the naming of the intended father as the child's father on the birth certificate did not give him the status of father (Re A and B [2000] NSWSC 640; (2000) 26 Fam LR 317 at [40]). It also follows that the wrong person was named as father on the birth certificate. The birth was not registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW) as required by s 38 of the Surrogacy Act.
  1. A difficulty in both cases was that the husband of the birth/surrogate mother was not prepared to complete a birth registration statement that named him as the father of the child, notwithstanding that until a parentage order were made under the Surrogacy Act (or an adoption order made if that were required), he was irrebuttably presumed to be the child's father.
  1. The solicitor for the plaintiffs advised that she provided legal advice to the parties that the birth mother (that is, the surrogate mother) should be recorded on the birth certificate as the child's mother and that the intended father should be named on the birth certificate as the child's father. She advised that in both cases the husband of the birth mother did not wish to be named on the birth certificate as the child's father. She stated:
"As the husband of the surrogate mother did not wish to be recorded on the birth certificate, as there was the intention by the plaintiffs to apply for a parentage order with the consent of the defendants and as there was no penalty for registering the second plaintiff as father, or no specific exclusion not to be registered, the advice given by me was for the second plaintiff to be recorded on the birth certificate as father. (In each case the second plaintiff was the intended father.)"
  1. The solicitor for the plaintiffs submitted that it was in the best interests of each child from the outset that the intending fathers be registered as the children's fathers. Having their name on the birth certificate as father assisted in the process of having the child's name on the Medicare card of the intending father soon after the birth of the child. The children lived with their intended parents very soon after birth. If there had been any post-birth complications for which a father's consent to medical treatment might have been required, having the intended father's name on the birth certificate could have avoided complications.
  1. In one of the cases the solicitor advised that following the birth of the child the surrogate mother and her partner separated and remain separated and the partner of the surrogate mother initially refused to sign a consent to the application for the parentage order, although it was always the intention and agreement of the parties that the intending father would become the father of the child and the partner of the surrogate mother would never act as the father of the child.
  1. Hence, recording the intending father as the child's father on the birth certificate reflected the physical realities of the situation.
  1. The pre-condition in s 38 to the making of a parentage order is not met. Despite that pre-condition not having been met, the parentage order can be made if I am satisfied that exceptional circumstances justify the making of the order (Surrogacy Act, s 18). The guiding principle in administering the Act is that the best interests of the child be paramount (s 3). The phrase "exceptional circumstances" is used in a wide variety of legislation. The phrase is to be construed in the context in which it appears and having regard to the purposes of the legislation. In its ordinary sense circumstances can be exceptional if they are out of the ordinary. ...
  1. I am satisfied in the present case that there are exceptional circumstances that justify ignoring the non-satisfaction of the pre-condition in s 38. I think it must be unusual and out of the ordinary for parties to be advised by a solicitor that they need not comply with the requirements of the law. That is what the solicitor's advice amounted to in this case. No doubt the advice was well-meaning, but it was wrong.
  1. The solicitor said that it was intended that the plaintiffs (the intended parents) would apply for a parentage order with the defendants' (the surrogate mother and her husband) consent. But the application initially made was only for the transfer of the mother's parentage. If that had been the only order made the child would be without a father. The incorrect details on the birth certificate would not withstand scrutiny if the child's parentage were in issue. I infer that the reason that the intended fathers in the present case did not initially seek a parentage order for the transfer of the parentage of the children from the partners of the surrogate/birth mothers to them was that they considered that having been recorded on the birth certificate as the children's fathers, they would have that status and nothing more would need to be done. Whilst their registration as the children's fathers gave rise to a presumption that they had that status, the presumption could readily be rebutted with potentially irreversible consequences, for example, if one of the intended fathers died and the question was whether his estate should pass to his child on intestacy.(emphasis added)

When can a Medicare card issue for a child born under a domestic surrogacy arrangement?

When can a Medicare card issue for a child born under a domestic surrogacy arrangement?

The simple answer is usually- as soon as the birth certificate issues- but getting consistency out of Medicare is a challenge. Surrogacy is a relatively rare and new concept in Australia (with the number of births overseas via surrogacy for example about 7 to 1 as compared to the number of domestic births)- and some people either do not know about surrogacy, or oppose the idea of surrogacy.

Every Australian citizen living in Australia is entitled to a Medicare card

This can't be put more simply: if the child at birth is an Australian citizen, then the child is entitled to a medicare card.

The child in being born in Australia is NOT an Australian citizen

For the child to be born as an Australian citizen, two things are required under the Australian Citizenship Act 2007:

  • the child is born in Australia
  • the child has at birth an Australian citizen parent (or permanent resident).

Who then are the parents of the child at birth?

Every case is different, but usually the parents of the child are the surrogate, and if she has one either  her husband or de facto partner. If one of those is an Australian citizen, therefore the child is entitled to Australian citizenship at birth, and is therefore then entitled (once the birth is registered) to a Medicare card.

For the purposes of citizenship, if the child was conceived through an artificial conception procedure, then before a parentage order is made, the surrogate (and if she has one, her de facto partner or husband) is the parent: s.8,12 Australian Citizenship Act 2007, s.60H Family Law Act 1975.

What if the surrogate and her husband/partner are not Australian citizens or permanent residents?

Then the child needs a visa to stay in Australia until a parentage order is made. The child will not be entitled to Australian citizenship (and a Medicare card)  until that point. It should not be assumed that the surrogate and her partner and husband are Australian citizens. It needs to be checked in every case.

OK- so the surrogate and her husband are Australian citizens- who applies for the Medicare card?

Either the intended parents can apply OR the surrogate and her husband can apply. If the former, then depending on who you get in Medicare, you might get help or hindrance.

I have had clients who have obtained a Medicare card without difficulty, and others who had extreme difficulty- because of who was behind the counter. There appears to be little consistency.

Can the baby be named on the Medicare card of the intended parents before an order is made?

The simple answer is yes, but the approach taken by Medicare offices varies. Some will refuse it. The legal test is that the child is in your "custody, care and control". Unhelpfully, this phrase is not defined- but appears to mean the reality of who is caring for the child, as opposed to the legality of who is caring for the child. If the former, then a family card should issue without drama. If Medicare take the view that it is the latter- then a family card won't issue, but a card can still issue for the child before the order is made. After the order is made- then the family card should then issue without difficulty.

If the child is born to a foreign surrogate (and her foreign partner/husband) how does the child obtain Australian citizenship?

Quite simply, the child obtains Australian citizenship on the making of a surrogacy parentage order. Excuse the legal journey to reach that conclusion:

  • Under s.8 of the Australian Citizenship Act 2007, where there has been an artificial fertilisation procedure, who is a parent of the child for citizenship purposes is determined by ss.60H and 60HB of the Family Law Act 1975.
  • Therefore, because of s.60H,  before the order is made, the surrogate and if she has one her husband or partner are the parents.
  • Under s.60HB, State and ACT parentage orders are recognised as making the intended parents as parents of the child.
  • The State and ACT legislation, for example, section 12 of the Surrogacy Act 2010 (NSW),  is listed for the purposes of s.60HB under regulation 12CAA of the Family Law Regulations 1984 (Cth).

Wednesday, 8 March 2017

Italian court in landmark decision recognises gay couple as parents

Following a process lasting a long seven years, from inception of the surrogacy journey to the conclusion of the court process, an Italian gay couple has waited to find out if they were the legal parents of their children born through surrogacy in Canada.

In a landmark decision, the three judge Court of Appeal in Trento decided that the couple were both the parents- even though Italy bans any form of surrogacy.

One of the men was the biological father of the children. The Canadian court had ordered that both men be recognised as the parents. The childrens' birth certificates had, following the Canadian court orders, been altered to recognise that the men were their parents.

The men tried to register the births back home in Italy- and failed, because the registrar said that surrogacy was against public policy. The men therefore took the matter to court, and ended up in the appeal court.

The Italian court relied on an Italian law concerning private international law, and a recent decision of the Italian Supreme Court where two women had had a child in Spain via IVF.

The children's right to privacy under the International Convention on the Rights of the Child

The court also said that the children's right was implicit in Article 8 of the International Convention on the Rights of the Child. It provides:

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

This reasoning is similar to an English case where the court held that a surrogacy order ought be made for a child- named as X in the report-  in part because of the child's right to an identity under Article 8, and:

"This case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has... a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what [was] referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible."

Australia is a party to the Convention, as is every other country other than the United States. In Australia, governments and courts are expected to take the Convention into account in decision making, except when Parliament has clearly provided otherwise. In the Family Law Act there is specific mention as to the Convention, so that it is to be given effect.

A comity or mutual respect approach

Significantly, the court accepted that the Canadian decision should be respected based on a comity or mutual respect approach. The court said that although surrogacy is banned in Italy, that ban is not enough to deny the recognition of such foreign measures, issued in accordance with the law applicable in the country of origin, to recognise a parent-child relationship between the non-biological parent and the children born from surrogacy in the framework of a parental project.

This approach is essentially the same approach taken in Germany's highest court concerning a surrogacy order in the US, and the European Court of Human Rights concerning US surrogacy orders. Surrogacy is banned in Germany. The European Court of Human Rights decisions concerned children born to French parents. Surrogacy is banned in France.

It is also similar to the approach taken in the Family Court in 2013 concerning a South African man, where his parentage granted through a South African court order was recognised in Australia.

The sins of the fathers should not be visited upon defenceless children

The court said:

‘the consequences of the violation of the rules... committed by adults should not fall back on the new born’.

This was similar to what the Australian Human Rights Commission successfully argued in the Family Court of Australia in 2012:
“the court is faced with having children in front of it and needs to make orders that are in the best interests of those children, and at that stage it’s probably too late to ask whether – or to inquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them".

Comment about the comity approach

The comity approach is one that I have argued for since 2011,  when I first met renowned US surrogacy lawyer Steve Snyder, and other members of the ART Committee of the American Bar Association. Comity formed the basis of a policy paper I co-wrote with Bruce Hale, which then became the policy of the American Bar Association in 2016 about a proposed Hague surrogacy convention. The best protection for children is that their legal status is secured, and one of the simplest and most straightforward ways of doing this is that if there has been a judicial process overseas to recognise the parent-child relationship between the intended parents and the child, then that process should be recognised in other countries, including the child's country of residence.

Congratulations to Alexander Schuster

Finally I want to extend my congratulations to advocate Alexander Schuster who was able to advise, guide and plan the matter for his clients, that resulted in such an outstanding win- a win for his clients, but much more importantly, secured the legal rights deserved by their children.

Congratulations Alexander!

SA passes laws to allow LGBTI couples access to IVF, surrogacy

Following my last post, South Australia has passed laws allowing LGBTI couples to access IVF and surrogacy. The laws as passed do not allow singles without a medical need  (primarily single men ) to access IVF, or singles to access surrogacy.

The laws are to commence on a date to be fixed, likely several months away.