Monday, 29 May 2017

Family Court for the first time registers US surrogacy order following commercial surrogacy arrangement

On Friday, the Family Court of Australia registered a US surrogacy order, for the first time when there had been a commercial surrogacy arrangement. This is only the second time that the Court has registered a US surrogacy order.

The effect of registration is that the parents through surrogacy who are recognised as parents at law in the United States are also recognised as parents at law in Australia. Registration removes any doubt about the legal relationship between parent and child- clarifying and transforming it.

A similar example of registration of an order is a gambler from Sydney who did not pay for his gambling debts at a Las Vegas casino. The casino could sue and obtain judgment against him in a court in Clark County, Nevada. That order could then be registered with the Supreme Court of NSW- and enforced there  against the gambler.

In the previous case, decided in December, Justice Forrest of the Family Court ordered the registration of a US surrogacy order in circumstances where he said that if it had been a commercial surrogacy arrangement he might not have allowed registration.

In the case decided Friday, the Australian couple lived in the US. They underwent surrogacy in the US. Their child lived with them. Their intention was to return home to Australia with their child. Justice Forrest took a different view to the previous case. He said that while every case must be determined on its own facts, this was the first time that what was seen in Australian eyes as a commercial surrogacy arrangement was able to be registered:

"Nevertheless, they have entered into a commercial surrogacy agreement and they seek the registration of the Court order that gives them the parenting rights over their child in this Court.

Having considered the matter further, particularly having regard to:

  • The unique circumstances of this couple and their inability to biologically parent and carry their own baby;
  • The well-regulated nature of the surrogacy arrangements entered into between the applicants and the surrogate, notwithstanding its commerciality;
  • The judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the women who carried the baby for the applicants;
  • The acceptance by the Australian Government of that US jurisdiction for the purposes of 'overseas child orders' made in Courts of that jurisdiction, I am satisfied, signifying the Australian Government's satisfaction with the standard of the judicial processes that would have occurred in the making of the order;
  • The fact that the arrangements entered into, regardless of their nature, brought into the world a child who is the biological child of at least one of the applicants, the legal child of both of them, who is being loved and raised as their child, who as an Australian citizen, like her parents, will be coming back to live in Australia in the near future, and who has every right to expect that the legal nature of her relationship with both of her parents is appropriately recognised in this country of hers;
I am satisfied that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicants."

I will publish an anonymised version of the judgment when it is available on the web.

My firm acted for the parents.

Tuesday, 23 May 2017

Circle surrogacy drinks and information night

On Friday next week,  2nd June, one of the world's oldest and largest surrogacy agencies, Circle Surrogacy, will be holding an evening drinks and surrogacy information night in Sydney.

I will be in attendance.

The event runs from 6.30 to 8.30pm and is free. For more information- register here.

Thursday, 18 May 2017

Visit to Beijing LGBT Center

I had the joy last week of attending the Beijing LGBT Center.  Unlike similar centres in Los Angeles and San Francisco, for example, this centre is a lot smaller.  Its director whose nickname is Little Iron but whose formal name is Ying Xin, holds a Master of Public Administration who decided that rather than going into government or banking, she would be better off serving the community and therefore took up the role with the Beijing LGBT Center. 

Little Iron is one of those people that you meet in life who are truly inspirational.  She inspires by her leadership – for which the very simple response is that LGBTIQ people are entitled under law to be treated equally and therefore should be treated equally. 

The Center provides outreach services, including counselling.  It has recently taken on a full-time transgender employee.  It works with law associations across China to train up lawyers about dealing with LGBTIQ clients and issues in LGBTI law. 

It does this while operating out of a converted apartment in a hospital complex.  It operates on the smell of an oily rag.

Way back in 1948, Alfred Kinsey in writing Sexual Behaviour in the Human Male, said that 10% of the male population is gay.  More recently, the Gallup poll after carrying out polling of Americans said that at least every fifth person in the US is gay.  The current population of China is estimated to be 1.371 billion people.  If the Gallup estimate is accurate for China and one in five Chinese are gay or lesbian, the numbers are staggering and the work ahead of the Beijing LGBT Center can’t begin to be measured.  If that number is correct, then 274,200,000 Chinese are gay or lesbian. That is over ten times the population of Australia or 50,000,000 less than the entire population of the United States.

The Chinese Constitution does not explicitly deal with sexual orientation or gender identity discrimination.  According to Wikipedia, there is no anti-discrimination provision for sexual orientation or gender identity under the Chinese Labour Law.  The Labour Law specifically protects workers against discrimination on the basis of a person’s ethnicity, gender or religion.

Only in 1997 was homosexual sex legalised in the Peoples Republic.  Only in 2001 was homosexuality removed from the official list of mental illnesses in China.  Conversion therapy – where therapists try to convert people from being gay or lesbian to straight – a therapy that has been widely condemned by western psychological and psychiatric associations and criminalised in California – continues in China.

In 2014 a Beijing Court ruled in favour of Yang Teng, a gay man, in a case against a conversion therapy clinic.  In Chongqing in which the clinic was ordered to pay compensation after it told the man it could treat his homosexuality with electric shock therapy.

Meeting with Zhang Zheng in Beijing

Last week I had the privilege of meeting Zhang Zheng who is the visionary founder and boss of NestGene.  NestGene is a business that helps people in China become parents.  Quite simply, the quality of IVF services in China is highly variable from very good to not so good and the primary work that NestGene does is to help infertile Chinese couples undertake IVF in China. 

For gay couples and single men in China, however, relief isn’t there.  This is because whilst surrogacy occurs underground in China, it is against the code of practice of doctors to engage in surrogacy.  Therefore, for single men and gay couples who want to become parents through surrogacy and to do so in an open, transparent and legal way, they need to undertake surrogacy elsewhere, for example, in the United States.

NestGene helps these intended parents as well as many heterosexual couples, undertake surrogacy.

Given the rapid growth seen in the last couple of years with the number of Chinese intended parents undertaking surrogacy in the US, it is likely that these numbers will greatly increase – with the increased prosperity in China and in particular the rise of the middle class and the knowledge that no longer do those who want to become parents have to suffer in silence but can instead do something about it.

It was a wonderful meeting with Zhang, and I hope that next time I will be able to spend more time with him!

Inaugural Asia-Pacific Rainbow Families Forum in Hong Kong

Over two days last week I was extremely lucky, honoured and privileged to take part in the inaugural Asia-Pacific Rainbow Families Forum held in Hong Kong.

They made sure that they made full use of my talents!  The forum was held over two nights, the first with the showing of the Australian film Gayby Baby, which is from the children’s perspective of growing up in gay and lesbian households and then with the forum proper on the Friday. 

I took part in three panel discussions, one on the Thursday night and two, back to back on the Friday. 

Delegates attending came from Hong Kong, Thailand, Japan, Philippines, Fiji, China and of course Australia.  I was at last able to meet three Hong Kong colleagues, a barrister Azan Marwah and fellow solicitors Winnie Chow and Jonathan Mok.  Azan Marwah is counsel at the private bar in Hong Kong. Winnie Chow, Jonathan Mok and I are all Fellows of the International Academy of Family Lawyers, the world’s leading group of family lawyers.

It was good to see all three of them there at the conference in support of this vital issue.

The conference dealt with the barriers and opportunities that are presented to families of LGBTIQ people across the Asia Pacific, including particular focuses on China, Japan, Fiji and the Republic of Philippines. 

It was an amazing event that was put together with the assistance of the Australian Consulate and San Diego Fertility Center amongst others by the extraordinary and inspiring fellow Aussie but Hong Kong resident Bess Hepworth.

This was truly an inspiring event that hopefully will lead to change to ensure that rainbow families across the region are heard and are able to ensure above all that their children are recognised and are safe and well.