This morning (Australian time) I took part in a webinar about
surrogacy developments in Australia, Canada and the UK. My co-presenters
were international surrogacy lawyers Sara Cohen from Canada and Colin
Rogerson from the UK.
I discussed the impact of two recent Family Court cases on those Australian citizens or residents thinking of doing surrogacy in the US. Here is my paper:
I discussed the impact of two recent Family Court cases on those Australian citizens or residents thinking of doing surrogacy in the US. Here is my paper:
AMERICAN BAR ASSOCIATION
FAMILY LAW SECTION WEBINAR
29 JUNE 2017
COMMONWEALTH BABIES: INTERNATIONAL
ART UPDATE ACROSS BORDERS
TWO DEVELOPMENTS FROM DOWN UNDER
By Stephen Page[1]
Partner Harrington Family Lawyers
INTRODUCTION
After
having undertaken surrogacy in the US or Canada, there have been two issues for
Australian intended parents, aside from how to obtain citizenship:
·
Do they take other steps to have their
parent/child relationship recognised at law?
·
How do they obtain an Australian passport
for their child?
A RECAP ON AUSTRALIAN CITIZENSHIP
An
application for Australian citizenship may be made in Australia or in the
United States or Canada. For most
intended parents, the best course is to obtain recognition of parentage
(preferably by Court order) the US or Canadian passport and travel visas so
that the child can travel to Australia – and then after having arrived in Australia, make the application for
citizenship.
The
relevant statute is the Australian
Citizenship Act 2007 (Cth). It
provides under section 16 that if a person is born outside Australia on or
after Australia Day 1949, that person is eligible to become an Australian
citizen if a parent of the person was an Australian citizen at the time of the
birth – and then an application may be made to the Minister for Immigration to
establish citizenship.
There
is also a requirement that the Minister must be satisfied of the identity of
the person before granting citizenship: s.17(3). This became relevant in a case last year when
a heterosexual couple, undertaking surrogacy overseas (not the US or Canada)
told the Immigration Department that they had not undertaken surrogacy but that
the wife had become pregnant through IVF, using the husband’s sperm and the egg
of an egg donor. The relevant official
noted that the intended mother alleged that she must have flown when she was
about 35 weeks pregnant with twins, but did not have any letter from a doctor
clearing her for travel, in breach of the airline’s usual policies.
Whilst
the official could be satisfied that the twins were genetically the children of
the intended father, the official could not be satisfied about the identity of
the children (because the mother was not identified) – and citizenship was
refused. The official was concerned that
the children may have been trafficked.
The
problem with the Australian Citizenship
Act, as courts have commented, is that the definition of who was a parent and who was the child is very poor. Under section 8 of the Act, it would appear
on face value that anyone undertaking surrogacy in the US or Canada (or
anywhere else overseas) would never be recognised as the parent of the
child. Section 8 provides:
“(1) This
section applies if a child is:
(a)
a
child of a person under section 60H or 60HB of the Family Law Act 1975; and
(b)
either:
(i)
a
child of the person’s spouse or de facto partner under that section; or
(ii)
a
biological child of the person’s spouse or de facto partner.
(2) The
child is taken for the purposes of this Act:
(a)
To
be the child of the person and the spouse or de facto partner; and
(b)
Not
to be the child of anyone else.”
The
effect of section 60H of the Family Law
Act 1975 (Cth) is that when a woman gives birth to a child conceived
through an artificial conception procedure and the woman either has a
cohabiting partner or husband and her partner or husband consented to that
procedure, as have the donors of any genetic material, then the woman and her
husband are the parents and the donors are not.
On
the face of it, on reading section 8 of the Australian
Citizenship Act and section 60H of the Family
Law Act, any Australian undertaking surrogacy overseas as an intended
parent would not be a parent for the purposes of Australian citizenship.
Section
60HB of the Family Law Act has much
more limited operation. It provides that
when a state parentage order is made, for example in Queensland or New South
Wales, transferring parentage from the surrogate (and her partner if there is
one) to the intended parent or parents, then the intended parent or parents are
the parents for Australian law (and therefore by virtue of section 8 confer
citizenship on their child).
In
two cases in the Family Court it was held:
·
That section 8 has been considered by the
Department of Immigration and Border Protection[2]
not to apply to international surrogacy arrangements;[3]
·
That Parliament never intended section 60H
to apply to surrogacy arrangements and therefore it is not a provision that
relates to international surrogacy arrangements[4].
Therefore
to establish Australian citizenship for any child one looks at the broad test
set by the Federal Court in H v. Minister
of Immigration and Citizenship [2010][5]
– so that who is seen in the wider sense of the community as being the
parent? Therefore, someone who has no
genetic relationship with a child can be the parent of the child. Only one intended parent needs to be an
Australian citizen for the child to obtain Australian citizenship. The effect of H v. Minister of Immigration and Citizenship is that there does not
need to be a genetic link between the intended parent and the child. The Department of Immigration has said, quite
properly:
·
An application [for citizenship] requires
additional scrutiny if one or more of the following circumstances apply:
o
The person stated to be the child’s mother
travelled by air in what would have been a very advanced state of pregnancy
(most airlines will not carry a passenger after the 28th week of
pregnancy);
o
The person stated to be the child’s mother
is of mature age and the birth certificate shows the child to be her first
born;
o
The person stated to be the child’s mother
claims to have had no prenatal attention from a doctor in Australia;
o
A person stated to be a parent is not
contactable;
o
The person stated to be the child’s mother
claimed she had no antenatal care;
o
An application is lodged by a responsible
parent in Australia and the child is offshore;
o
The birth certificate was issued a
significant time after the birth;
o
Travel movements of the person stated to
be the parents indicate that they could not have been together at the time the
child would have been conceived;
o
A child notionally eligible for
citizenship applied for a visa before seeking citizenship or evidence of
citizenship… and “in the absence of satisfactory
evidence of biological parentage, any other evidence provider should be closely
scrutinized and verified to the maximum practical extent.”[6]
It
is common for Australian intended parents to undertake surrogacy in the US or
Canada to be able to rely on the US or Canadian surrogacy order to establish
parentage for the purposes of citizenship in Australia. In those cases, typically a DNA test does not
need to be undertaken. Where there is no
genetic link between the Australian intended parent and the child or children,
it is possible, as I said, to obtain citizenship but it is something that ought
to be planned from the beginning so that an Australian official who might be
rightfully or otherwise suspicious of trafficking can be properly convinced
that there has not been a child who has been trafficked but this is a
legitimate application for citizenship.
In
jurisdictions where it is possible for a parentage to be recognised without a
court order, for example Illinois or British Columbia, I strongly recommend (applying
the KISS principle) that an order be obtained because it is simply easier to
persuade Australian officials that the matter has had judicial oversight and
that a judge has determined by order that the intended parents are the parents
of the child as a matter of law, rather than having to traverse the tortuous
track of the state of law in that relevant jurisdiction, e.g. Illinois or
British Columbia.
THE REVOLUTION OF RE HALVARD [2016] FamCA 1051
When
intended parents bring their babies back to Australia, it is unclear as a
matter of law as to whether they are the parents. There has as yet been no case before Australian
courts where someone has sought a parentage declaration that they were the parents
of the child when they undertook surrogacy in Canada or the United States. The case law before Australian courts
concerning who are parents through international surrogacy has typically
involved countries where there hasn’t been judicial process at the conclusion
in the foreign country, but the recognition has been by way of contract and
these countries have been, with one exception, either India or Thailand, places
where surrogacy abuses have been well known.
There
have been differing approaches taken by Family Court judges, which include:
·
A doubt whether the intended parents are
parents under Australian law, either because of the effect of parenting
presumptions in Australia or because what they did on the face of it was
illegal[7];
·
The intended parents are unlikely to be
parents, because State law, not Federal law applies and the parenting
presumption would mean that the surrogate and their partner would be the
parents[9];
·
In Victoria, rules about banning people
from undertaking surrogacy for commercial surrogacy don’t apply and therefore
an intended father would be recognised as an intended father under Federal
legislation[10];
·
Overseas parenting presumptions don’t
apply, and therefore the intended parents are not the parents in Western
Australia[11];
·
Under Western Australian adoption law, who
was a parent is determined by the reality
of who undertakes the parenting[12];
·
In Victoria there is a gap in the law
about international surrogacy and the court does not have the power to make a
declaration about who is a parent. The
intended father begat the child and would therefore be the father but the
intended mother where an egg donor was used is not the mother.[13]
The
only case that did not involve India and Thailand, prior to Re Halvard, involved a South African man
who underwent surrogacy there. Two weeks
before his children were due to be born, a South African judge made an order
upholding the South African surrogacy agreement, which meant that the man, who
was also genetically the father, was the parent of the children for all
purposes under South African law.[14]
The
case states the principle that if someone overseas lawfully there undertakes
surrogacy there and is recognised as the parent there, then as a matter of
comity they should be recognised as a parent under Australian law.
It
is no leap of faith therefore to say that if someone who is an intended parent
comes from Australia and undertakes surrogacy in the US or Canada – and they do
so lawfully in the US or Canada under Australian law – and have been recognised
under US or Canadian law as the parents – then they should be recognised under
Australian law as the parents.
A
difficulty with this approach in part is that each of the Australian States and
the Australian Capital Territory have differing rules about surrogacy (including
international surrogacy) and what may have been done overseas may or may not be
legal based under local law. The devil
is in the detail. Planning of the
surrogacy arrangement from the beginning is therefore vital.
OPTIONS FOR AUSTRALIAN INTENDED PARENTS TO BE RECOGNISED
AS THE PARENTS
Aside
from the issue of citizenship, Australian intended parents have had two choices
in the past:
1. Option 1 - apply to the Family Court
for an order declaring that you are the parents as well as that you have
parental responsibility for the child and the child lived with you. This was first obtained as long ago as in
2003.[15] However, the ability to obtain these orders
or at least a declaration of parentage is now doubtful and comes at a cost with
a ballpark figure of US$15,000 at today’s exchange rates, which doesn’t seem to
make it much value for money – an uncertain outcome at a large cost.
Therefore, very few people undertake this course.
2. Option 2 – do nothing. Most intended parents as a result take no
steps whatsoever to establish that they are the parents of their child.
RE HALVARD [2016]
The intended parents lived in the United States. One was an Australian citizen and one a US
citizen. They undertook surrogacy in
Tennessee where a pre-birth order was made but the child would be recognised as
theirs upon birth.
All
went according to plan – the child was born and they were recognised as the
parents. They subsequently without
difficulty obtained Australian citizenship for their child.
They
subsequently applied to the Family Court of Australia to register their US
surrogacy order in Australia. It is
possible to register overseas parenting orders with the Family Court of
Australia[16],
the effect of which would be that the Family Court of Australia would stand in
the stead of the overseas court, resulting in the order being able to be
enforced in Australia.
The
difficulty before Re Halvard was that
every time intended parents sought to register an overseas child order, a
registrar rejected the application for a number of reasons. Reasons that I have become aware of include:
·
An overseas pre-birth order involves the
establishment of rights, not transfer of rights – in language that is reminiscent
of Article 4 of the 1996 Hague Child
Prevention Convention:
“The
Convention does not apply to –
(a)
The
establishment or contesting of a parent-child relationship”
·
A pre-birth order is not an overseas child order because at
the time that the pre-birth order was made the child did not exist - as it had
not been born.
·
A pre-birth order does not identify the
child- for the obvious reason that the child had not been born when the order
was made.
·
The Family Court of Australia can only
register like-for-like orders. As the Family
Court of Australia cannot make surrogacy orders, therefore it cannot register
overseas surrogacy orders.
·
The surrogacy arrangement had the whiff of
commercial surrogacy about it. The
public policy of the relevant State was against commercial surrogacy, including
overseas commercial surrogacy and therefore on public policy grounds, if
consideration were given to registration, registration ought to be refused.
BEFORE APPLYING TO THE JUDGE
The
parents had previously sought to register the order through the Commonwealth
Attorney- General’s Department, which sent the documents to a registrar of the court. The Registrar, despite regulations saying
that the registrar shall register,
declined to do so and gave reasons.
Instead of seeking review, the intended parents instead applied direct
to the court to register the order. In applying to a judge, the judge’s
discretion had to be applied- as the judge may
register.
Step 1: Was the order an overseas child order?
The
question that Justice Forrest stated was most apt in the case was:[17]
“However
expressed does [the Tennessee order] have the effect of determining the person
or persons with whom a child who is under 18 is to live or as to which person
or persons are to have custody of a child who is under 18?”
Forrest
J said[18]
that eight paragraphs of a preamble to the order “make it absolutely clear to which individual child the actual orders
apply”, namely X. The orders
provided that Mr Halvard and Ms Fyodor were to be shown on the birth
certificate and that they had all parental rights and responsibilities
pertaining to the child, including the right to legal and physical custody of
the child and a right to make health-care decisions for the child.
His
Honour said[19]
that he did “not consider the fact that
the child was at about two months from birth at the time the Tennessee Court’s
orders were made makes the orders any less an “overseas child order” within the
meaning of that term, than if the orders had been made two months after his
birth”. His Honour noted that the
form of order that was made in Tennessee was to the same effect as post birth
orders made in either Queensland or New South Wales.
Step 2: A certified copy of order and certificate of currency
Each of these were complied with.
Step 3: Proceeding to Australia
The
parties and child were not ordinarily resident in or present in Australia. Forrest J concluded that they were proceeding to Australia – as that phrase
meant coming to or travelling to Australia, whether that be for a visit or to
live in Australia. Mr Halvard’s evidence
was that:
(1)
He was an Australian citizen;
(2)
He had years of being ordinarily resident
in Australia prior to going to the US, to further his career and meeting and
marrying an American citizen;
(3)
Members of his family still resided in
Australia;
(4)
X was a dual US/Australian citizen;
(5)
They intended to visit Australia from time
to time when X was a little older.
His
Honour concluded that that was sufficient.
Step 4: Prescribed Overseas Jurisdiction
Justice
Forrest determined that Tennessee was a prescribed
overseas jurisdiction, being prescribed in Schedule 1A of the Family Law Regulations 1984 (Cth). I note that:
·
Every
US
State and the District of Columbia is a prescribed
overseas jurisdiction, other than Missouri, New Mexico and South
Dakota. I have been asked by a number of
US colleagues about why they haven’t been included. I simply don’t know. I have sought to have them added – but they
haven’t been added yet. If surrogacy is
to be proceeding through one of those States for Australians, then an order
made in those States cannot be registered in Australia.
·
By contrast, no Canadian province is a prescribed overseas jurisdiction. I have sought similarly to have Canada added,
but had no luck so far.
Step 5: Exercise of discretion
Forrest
J held that it was proper to register the order when:
1. The
Full Court of the Family Court had not listed any criteria for registration.
2. Contrary
to the views of the intended parents’ solicitor, the arrangement was not a
commercial surrogacy arrangement within the meaning of the Surrogacy Act 2010 (Qld) or Surrogacy
Act 2010 (NSW). It was while
generous, not commercial, and not a commercial arrangement masked as an
altruistic one, and “whilst an overseas
child order that came into existence as a consequence of a commercial surrogacy
agreement might have difficulty attracting a favourable exercise of the
discretion to register it in this Court for public policy reasons, I do not
consider that applies in this matter”.[20]
3. The
Tennessee order was the same type as those made under the Surrogacy Act 2010 (Qld) and the Surrogacy Act 2010 (NSW).
4. The
fact that the order under Tennessee [or as seen in the 2013 case under South
African] law could be made before the
birth of the child but in Queensland and New South Wales can only be made after “is of little apparent consequence and is not, in my judgment, good
reason for refusing to register the Tennessee Court’s order in this Court”.[21]
5. Because
the applicants were not seeking parenting orders, then the onerous requirements
of Division 4.2.8 of the Family Law Rules
(which require evidence from the surrogate, about the law overseas, and
consideration of the appointment of an independent children’s lawyer
[equivalent of a guardian ad litem]
and the obtaining of a family report) were not applicable. His Honour noted:
“The gestational carrier was a party to the
proceedings in the Tennessee Court, along with both the applicant. That Court, by its order and the preamble to
its order, was clearly satisfied that the applicant should have all parental
rights, responsibilities and obligations relating to the child then being
carried by the gestational carrier transferred or conferred upon them. The evidence put before that Court in support
of that application clearly satisfied the Court that the order it made was the
appropriate one to make.”[22]
6. The
applicants were the biological and, since the order of the Tennessee Court, the
de jure parents of X. He lived in their day to day care.
7. There
was no reason why they should not be entitled to the registration of the
Tennessee Court’s order in the Family Court so that their parent/child
relationship of the child was recognised and recognised appropriately in
Australia.
FURTHER
EFFECT OF RE HALVARD
On
its face, Re Halvard deals only with
registration, but it has a likely flow-on effect to Australia’s surrogacy and egg
donor laws. What is commercial surrogacy has to be revisited in some States as
a result of the ruling. Many Australian intended parents who thought that they
had committed offences under relevant State law in undertaking surrogacy may
not have done so- and who thought there was no point doing anything in
formalising their legal relationship with their child now can do so.
Under
a scheme of both Commonwealth and State legislation it is an offence to pay an
egg, sperm or embryo donor anything other than their reasonable expenses – an offence punishable by up to 15 years
imprisonment. In several States there
are long arm laws which extend the jurisdiction. If the intended parents don’t
structure it right and enter into an egg donor agreement in the United States,
for example, where the egg donor is paid anything other than her reasonable expenses, then on the face of
it they are committing an offence punishable by up to 15 years imprisonment.
If
the agreement is structured correctly, then they can avoid the commission of
that offence.
There
has been no case on what are reasonable
expenses. One of the regulators of
Australia’s IVF industry, the Reproductive Technology Accreditation Committee, decided
in 2011 that the phrase of the legislation concerning donors of reasonable expenses was essentially the
same as that under the Surrogacy Act 2010
(NSW) of reasonable costs. Of course, the committee is not a court of
law and clients are not IVF clinics – but nevertheless the reasoning seems
right and it is a case of like for like.
It is therefore the case, in my view, that if an amount is proposed to be paid to an
egg donor in the United States for Australian intended parents and the amount
can be seen to be reasonable, in line
with the decision in Re Halvard, then
no offence may be committed by the Australian intended parents.
The
other regulator of Australia’s IVF industry, the National Health and Medical
Research Council has set out in its 2017 licensing conditions[23]
that what can be paid to donors is only out of pocket expenses. This appears to be inconsistent with the
decision in Re Halvard and therefore
incorrect as a matter of law – but it shows the challenges of a new and
uncertain area of law.
PASSPORTS
“…must
not issue an Australian travel document to a child unless:
(a)
each
person who has parental responsibility for the child consents to the child
having an Australian travel document.”[25]
There
are exceptions to allow for the dispensation in special circumstances of the
consent and for an order of an Australian court permitting the child to have an
Australian travel document, the child to travel internationally or the child to
live or spend time with another person who is outside Australia.
What is parental responsibility is not defined
under the Australian Passports Act 2005
(Cth). In my view there is a scheme
between section 11 of that Act and the Family
Law Act 1975 (Cth) which is the Commonwealth legislation that deals with
children, divorce and parental responsibility.
The term parental responsibility
is specifically defined under section 61B:
“In this Part, parental responsibility, in relation to a child, means all the
duties, powers, responsibilities and authority which, by law, parents have in
relation to children.”
Section 61C of the Family Law Act provides:
“(1) Each of the parents of a child who is not
18 has parental responsibility for the child.
(2) Subsection (1) has the effect despite
any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the
parents becoming separated or by either or both of them marrying or
re-marrying.
(3) Subsection (1) has the effect subject to
any order of a Court for the time being in force (whether or not made under
this Act and whether made before or after the commencement of this section).”
For some
years the Department of Foreign Affairs and Trade has required the birth
mother, i.e. the gestational carrier, to sign a form in which she consents to
the issuing of an Australian passport for the child. Even if the birth mother is married, the
birth mother’s husband is not required to sign such a form. The Department took an inconsistent approach
with requiring her to fill out this form.
For Australian intended parents:
·
It should be the
term of any gestational carrier agreement that there is a positive obligation
on the gestational carrier and if necessary her husband and cohabiting partner
to consent to parentage or registration in Australia and the issuing of an
Australian passport for the child.
The Department of Foreign Affairs and Trade at first did
not press this requirement consistently.
It may not seem that the requirement is an onerous one until it is
realised that an Australian child’s passport only lasts 5 years and therefore
needs to be obtained:
·
At birth;
·
At any change of name of the parents;
·
At 5 years;
·
At 10 years;
·
At 15 years.
The
age of majority in Australia is 18.
Therefore
there are ordinarily three (and sometimes four) occasions after the first
occasion when the surrogate’s consent is required. It will only not be required if there is
dispensation by the Department or the very expense process of getting an order
from the Family Court (or if registration has been obtained – a much cheaper
process).
Example 1:
Kyle
and Keith were an Australian couple living in Canada. They underwent surrogacy in British
Columbia and became parents by declaration, not by order. They obtained Australian citizenship for
their child. Subsequently they sought
an Australian passport. The Australian
Consul refused to issue an Australian passport without the written consent of
the surrogate in the appropriate form.
I
was then retained. I wrote to the
Department and pointed out that in light of the decision in Carlton and Bissett [2013] and as
Australian law only recognises two parents, when the declaration was made and
Kyle and Keith were the only two parents of the child, the surrogate was not
a parent, that this was true under Australian law by virtue of the decision
in Carlton and Bissett and
therefore she did not have parental responsibility under the Family Law Act and therefore did not
have parental responsibility under the Australian
Passports Act .
The
Department’s response was that the surrogate was the natural parent – because she gave birth and therefore her consent
was required.
Kyle
and Keith then took the matter to the media to lambast the Department. The Minister for Foreign Affairs then said
in essence Department 1, Parents 0
– the consent of the birth mother was required and without that a passport
would not issue. Subsequently the
birth mother signed the form and a passport issued for the child.
|
Example 2:
Rob
and Genevieve are an Australian couple living in the United States.
They
declined to provide the written consent of the carrier to the passport
application. They had become parents
by virtue of a US surrogacy order.
After some difference of opinion with the US Consul, the Consulate
agreed that the written consent of the carrier was not required because of
the existence of the US Court order.
|
RE GROSVENOR [2017] FamCA 366
On Friday, 26 May 2017, the Family Court of
Australia handed down a judgment in which, for the second time, the court
registered a US surrogacy order. My firm
acted for the intended parents.
Our clients were
an Australian heterosexual couple living in the United States. A child was conceived and born through
surrogacy. The child was conceived from
the husband’s sperm and an egg from an egg donor. A pre-birth order was made in North Carolina
confirming that my clients were the parents.
The significance
of the case is that the judge, also Justice Forrest, held that in the
circumstances of the case, despite the public policy in Australia against
commercial surrogacy, and even though the parties had engaged in what is seen
in Australia as commercial surrogacy, the order ought be registered:
“Given
that the applicants and their solicitor tell the Court that the child in this
case was brought into the world with the assistance of an arrangement regulated
by a commercial surrogacy agreement, I am clearly required to more deeply
consider that proposition expressed by me [in Re Halvard] only six months
ago. The public policy context within
which this consideration is set includes the fact that in Queensland, New South
Wales and the Australian Capital Territory, entry into commercial surrogacy
arrangements abroad by persons ordinarily resident in those jurisdictions is a
criminal offence. Of course, I have
already observed that Mr and Mrs Grosvenor reside in the USA and not one of
those jurisdictions. 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 woman who carried the baby for the applicants;
·
The acceptance by the Australian Government of
that US jurisdiction as a prescribed jurisdiction for the purposes of the
registration of ‘overseas child orders’ made in Courts of that jurisdiction,
thereby, 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; and
·
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
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.”
The conclusions by his Honour are in line
with the approach seen in the European Court of Human Rights, and discussions
by the working group at The Hague contemplating a Hague Convention on private international law concerning children,
including international surrogacy arrangements- the focus must be on the child,
not the other players. Of all the players, without some certainty of process,
the child is the most vulnerable one, with his or her legal status- and the
legal relationship with his or her parents- uncertain.
After all, under Article 8 of the International Convention on the Rights of the Child, the child is
entitled to preserve his or her identity, including nationality, name and
family relations as recognized by law without unlawful interference.
Thankfully, by recognising and protecting the child’s
legal relationship with his or her parents, the Australian registration of US
orders enables the child’s right to an identity to be protected and preserved,
consistent with Australia’s international obligations under the Convention.
FINALLY
This
is a new and controversial area of law. The
Australian House of Representatives’ surrogacy inquiry last year recommenced
making it harder for Australian intended parents to undergo surrogacy overseas
in any country that had standards less than that of Australia. The only
country that has standards as stringent as those of Australia is New Zealand - so
even intended parents who are going to the US or Canada would, if that
committee’s recommendations were followed, find the journey considerably more
difficult.
It
is unlikely in this term of Parliament that there will be any changes to the
laws concerning international surrogacy.
It is uncertain in the following term of Parliament whether there might
be any change. There is an old Chinese
curse:
“May
you live in interesting times.”
In this field we
continue to live in interesting times.
Stephen Page
Harrington Family
Lawyers
15 June 2017
http://surrogacyandadoption.blogspot.com
twitter.com/stephenpagelaw
[1] Stephen
Page is a partner of Harrington Family Lawyers, Brisbane, Australia. He was admitted in 1987. Is first surrogacy case was in 1998. He is an international representative on the Executive
Committee of the ART Committee of the Family Law section, a Fellow of the International
Academy of Family Lawyers and AAARTA. He
has spoken and written widely about ART issues, including for the International
Bar Association. Stephen has represented
clients in all eight Australian States and territories and at last count 25
countries overseas.
[2]
As it is now known.
[3]
Ellison and Karnchanit [2012]
FamCA602.
[4]
The Baby
Gammy case – Farnell and Chanbua
[2016] FCWA 17
[5]
[2010] FCAFC119 – although the Full Court was clear that surrogacy was not
included in the discussion.
[6]
Department of Immigration and Border Protection, Citizenship Policy (2016), pp214-215.
[7]
E.g. Johnson and Chompunut [2011]
FamCA505; Hubert and Juntasa [2011]
FamCA505; Denis and Pradchaphet [2011]
FamCA123 and Dudley and Chedi [2011]
FamCA502.
[9]
Mason and Mason [2013] FamCA424
[10]
Green-Wilson and Bishop [2014]
FamCA1031
[11]
Baby Gammy case – Farnell and Chanbua [2016]
FCWA17
[13]
Bernieres and Dhopal [2015] FamCA736.
The decision has been appealed. The appellate decision has been reserved.
[14]
Carlton and Bissett [2013] FamCA143
[15]
Re Mark: An Application relating to
Parental Responsibilities [2003] FamCA822
[16]
, and the Supreme Court of any State or territory in the Family Court of
Western Australia
[17]
[14]
[18]
[15]
[19]
[18]
[20]
[35]
[21]
[37]
[22]
[40]
[23]
Ethical Guidelines on the use of Assisted
Reproductive Technology in Clinical Practice and Research (2017)
[24]
Currently the Deputy Prime Minister, Julie Bishop
[25]
Section 11(1)(a)
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