The outgoing Labor government in South Australia commissioned a
review of that State's surrogacy laws. That review has been continued by
the incoming Liberal government. I have made both oral and written
submissions. Here are my written submissions:
14 June 2018
Ms Sarah Moulds
Senior Project Officer
South Australia Law
Reform Institute
By email: salri@adelaide.edu.au
Dear Sarah
Review
of South Australian Surrogacy Laws
I set out below my
submission as to the review. I am happy
to assist in any way if called upon for the purposes of the review.
1.
Who
am I?
I am a fertility and
family lawyer based in Brisbane. I was
admitted in 1987 as a solicitor of the Supreme Court of Queensland and 2013 as
a Barrister and Solicitor of the Supreme Court of South Australia.
My first surrogacy case
was in 1988. The case was similar to
that of Re Evelyn, but never went to
Court.
I have acted for
intended parents, surrogates, donors and donor recipients from all over
Australia. I am the only lawyer in
Australia who has appeared in court in four jurisdictions to obtain parentage
orders:
·
Queensland
·
New
South Wales
·
Victoria
·
South
Australia
I have acted for many
intended parents and several surrogates and their partners from South Australia. The intended parents contemplated local,
interstate or overseas surrogacy.
I have advised clients
from overseas about surrogacy law and practice.
Typically one or both of the parties is an Australian citizen. At last count there were clients from 28
countries overseas being:
Australia
|
|
1
|
Australian
Capital Territory
|
2
|
New
South Wales
|
3
|
Northern
Territory
|
4
|
Queensland
|
5
|
South
Australia
|
6
|
Tasmania
|
7
|
Victoria
|
8
|
Western
Australia
|
Overseas
|
|
America
|
|
1
|
Brazil
|
2
|
Canada
|
3
|
USA
|
Europe
|
|
4
|
Belgium
|
5
|
Denmark
|
6
|
France
|
7
|
Germany
|
8
|
Ireland
|
9
|
Netherlands
|
10
|
Russia
|
11
|
Switzerland
|
12
|
UK
|
Middle East
|
|
13
|
Iran
|
14
|
Israel
|
15
|
UAE
|
Asia
|
|
16
|
China
|
17
|
Hong
Kong
|
18
|
India
|
19
|
Indonesia
|
20
|
Japan
|
21
|
Malaysia
|
22
|
Philippines
|
23
|
Singapore
|
24
|
Thailand
|
Oceania
|
|
25
|
New
Caledonia
|
26
|
New
Zealand
|
27
|
Papua
New Guinea
|
28
|
Solomon
Islands
|
I have written and presented
widely about surrogacy law, including for:
·
Law
Society of South Australia
·
Queensland
Law Society
·
Hunter
Valley Family Law Practitioners Association
·
Family
Law Practitioners Association of Western Australia
·
Family
Law Section, Law Council of Australia
·
Fertility
Society of Australia
·
Fertility
Nurses Association of Australasia
·
Royal
Australian and New Zealand College of Obstetricians and Gynaecologists
·
American
Society of Reproductive Medicine
·
International
Academy of Family Lawyers
·
Academy
of Adoption and Assisted Reproduction Attorneys
·
American
Bar Association
·
International
Bar Association
I was the co-author and
principal advocate of policy 116b of the American Bar Association passed in
February 2016 as to the proposed nature or possible Hague Convention on Private
International Law Concerning Children including International Surrogacy
Arrangements. The Association has
400,000 members throughout the world. Of
course, I am an Australian, not an American.
I have presented or
lectured about surrogacy in the UK, US, South Africa, Hong Kong and Australia.
I advise about
Australian surrogacy law on a daily basis. I am familiar with the surrogacy and
parentage laws of every State and Territory, including South Australia. In 2017 my firm under my direction advised
116 new clients who were singles or couples in relation to surrogacy and a
further 5 singles or couples solely in relation to donor issues. I have also advised several IVF clinics in
several States, in including 2 clinics in South Australia, about regulatory
issues. You may have access to more up
to date figures than I do, but as best I can calculate, in an average year the
number of Australians undertaking surrogacy currently represents:
·
40
surrogacy journeys a year in Australia; and
·
250
overseas surrogacy journeys a year undertaken by Australians.
In the 2016 – 2017 year
the number of overseas surrogacy journeys had dropped to 142. Whether this is a one off figure or
indicative of a trend of more domestic surrogacy journeys, it’s too early to
tell.
I have acted in ground
breaking cases, for example:
·
LWV v LMH (2012), which was a worldwide precedent as to what constitutes
conception.
·
P & P (2012) – which established who was a couple and counselling
requirements in Queensland.
·
Re Grosvenor (2017) and Sigley & Sigley (2018) – in which US
Surrogacy Orders were registered by the Family Court of Australia, and with Re Halvard (2016) set the benchmarking
as to what is commercial surrogacy.
·
As
an expert witness (2016) in a UK case which established how UK laws
discriminate against single people undertaking surrogacy.
·
The
first interstate surrogacy cases in each of Queensland and New South Wales
(2012).
I am currently a member
of the following amongst others:
·
ANZPATH
·
Fellow
of the International Academy of Family Lawyers, including a member of its Surrogacy/Parentage
committee and of its LGBT committee
·
Founder
and Director of the LGBT Family Law Institute Australia
·
Fellow
of the Academy of Adoption and Assisted Reproduction Attorneys
·
International
Representative on the ART Committee of the American Bar Association
·
Founding
member of the Asia Pacific Rainbow Families Forum
·
Member
of the Fertility Society of Australia
·
Member
of the National Surrogacy and Donor Committee of City Fertility Clinic
·
Family
Law Practitioners Association of Queensland
·
Queensland
Law Society
·
Family
Law Section, Law Council of Australia.
The views expressed in
this submission are mine alone and do not necessarily represent the views of
the various groups of which I am a member.
I am on the panel of independent
children’s lawyers in Queensland and regularly act as an independent children’s
lawyer.
2.
Human
Rights Framework
It is essential that there is appropriate regulation
of surrogacy in South Australia within an appropriate human rights framework.
Both ART and surrogacy generally have a myriad of
complex moral and ethical issues. It is
essential in my view that there is and continues to be appropriate
regulation. Surrogacy, whilst usually
involving ART, is not a medical process, but a legal process of transfer of
parentage from the surrogate (and her partner if any) to the intended parent or
parents.
As part of that regulation, regulation ought to ensure
that the human rights of all involved are protected, the most relevant being:
·
The
donor and donor’s partner
·
Any
donor conceived individuals (whether as children or adults)
·
The
surrogate and her partner
·
The
intended parents
·
Any
child conceived from a surrogacy arrangement.
3.
Egg
donation issues
There is already regulation in place concerning the
donor and donor’s partner and any donor conceived individuals, the relevant
legislation or licensing conditions being:
·
Prohibition of Human
Cloning for Reproduction Act 2002 (Cth) - especially section 21 as to payment to
donors) and section 24 (mirror State and Territory provisions).
·
National
Health and Medical Research Council, Ethical
Guidelines on the use of Assisted Reproductive Technology in Clinical Practice
and Research (2017)
·
Assisted Reproductive
Treatment Act 1988
(SA), especially section 4A as to welfare of the child
·
Prohibition of Human
Cloning for Reproduction Act 2003 (SA), especially
section 16 (payment to donors)
·
Transplantation and
Anatomy Act 1983 (SA),
especially section 35 (sale or supply of tissue).
The scope of your
inquiry does not concern review of this other legislation. For many, if not most, intended parents
undertaking surrogacy, there is a need to access the services of an egg donor. The numbers of children born overseas through
surrogacy demonstrate the essential truth that Australians undertake surrogacy
overseas at a far greater rate than they do within Australia. One of the reasons that they do so is because
of a lack of local surrogates (which I will address below) similarly there is a
great shortage of egg donors. Australian
intended parents travel the globe to become parents, such as to:
·
Argentina
·
Greece
·
Spain
·
South
Africa
·
USA
is in large part because
of the legal settings that we have in place about the payment of donors. As you are already aware, I have called
elsewhere for the reform of the law in that area, but that issue is outside the
scope of your inquiry.
However to understand
the scale of that issue I note that in March 2016 I attended at Cape Fertility
Clinic in Cape Town. The medical
director advised me that that clinic alone was seeing 3 to 5 Australian couples
per business day. Due to South African law concerning
surrogacy, these couples were not accessing surrogacy in South Africa, but egg
donation alone. That one clinic is seeing
close to 960 Australian couples a year.
4.
Strengths
of surrogacy regulation
A number of strengths,
in my view, of how we regulate surrogacy in Australia in all its different
varieties are that:
1.
There
is a requirement for independent legal advice before the parties enter into the
surrogacy arrangement.
2.
There
is a requirement for the parties to have independent counselling and screening
with a report from the counselling prior to entering into the surrogacy
arrangement.
3.
With
the exception of Victoria and the Australian Capital Territory, there is a
requirement for there to be a written surrogacy arrangement. The inquiry undertaken by the Tasmanian
Parliament in 2011 rejected the format of the Surrogacy Bill 2011 (Tas) on that point initially when it proposed
that a surrogacy arrangement could be oral.
Having advised clients about domestic surrogacy arrangements in all 8
States and Territories, I would strongly endorse the need for the surrogacy
arrangement to be written.
4.
In
addition to any regulatory requirements, the common practice of IVF clinics is
to have a separate ethics committee to consider whether treatment should be
given in any proposed surrogacy journey.
Risks are carefully assessed, such as:
·
Whether
surrogacy is necessary. After all there
is approximately a 1 in 10,000 chance that a woman carrying a child may die
during pregnancy or childbirth. If
another woman is asked to be a surrogate when it is unnecessary she is
potentially putting her life unnecessarily at risk.
·
Psychosocial
issues
·
Medical
issues
·
Legal
and regulatory issues
5.
That
ultimately there is judicial oversight.
I cannot state how important it is to have this step. From a procedural point of view it is
necessary for the recognition of the parent/child relationship by virtue of the
provisions of the Family Relationships
Act, section 60HB of the Family Law
Act 1975 (Cth), regulation 12CAA of the Family
Law Regulations 1984 (Cth) and section 8 of the Australian Citizenship Act 2007 (Cth). From a substantive point of view, in my view
it is absolutely essential to have judicial oversight. In the rare event that something goes wrong,
my experience of courts in Queensland, Victoria and South Australia is that judges
are particularly sensitive to ensure that in the volatile circumstances that
all parties are treated as sensitively as possible and, as one would expect,
the best interests of the child are the paramount concern.
There have been calls
for Federal judges, such as the Federal Circuit Court, to be responsible for
orders concerning surrogacy. Until the
Commonwealth reaches an agreement with the States about legislating for
surrogacy and provides resources for that to occur, it will remain the
obligation of State Courts, such as the Youth Court, to deal with.
5.
Non
Discrimination
I note that you
recommended in an earlier report that there be a removal of discrimination
against LGBT couples and singles intending to access ART and surrogacy. Regrettably the amendments passed last year
by Parliament to the Assisted
Reproductive Treatment Act 1988 (SA) and the Family Relationships Act 1975 (SA) while removing discrimination
against same sex couples did not remove discrimination against single people
undertaking surrogacy. One must wonder
whether this is a breach of section 22 of the Sex Discrimination Act 1984 (Cth)
and whether therefore a challenge as seen in McBain v State of Victoria [2000] FCA 1009 and Pearce v South Australia Health Commission (1996) 66 SASR 486 will
survive a challenge. I have acted for
many women who are single and want to become parents. Some of them need a sperm donor. Some of them need a sperm and an egg
donor. Some of them, who are for example
survivors of cancer, need a sperm donor, an egg donor and a surrogate. God and nature are not always kind and
fair. It seems cruel to me that a single
man or a single woman who wants to become a parent under the current legal
settings must either:
·
Move
interstate, to undertake surrogacy there.
I note that if an intended parent moves interstate, they are unlikely to
come back; or
·
More
likely, due to the greater availability of surrogates overseas, go overseas.
A system of law which seems to encourage people to go
overseas to undertake surrogacy when the aim of the exercise is to protect the
human rights of all concerned (including potential surrogates) is foolish and
counterproductive.
If the aim is to ensure that surrogates are not taken
advantage of, then regulatory steps to encourage intended parents to undertake
surrogacy in South Australia should be the legal settings, rather than settings
which have the effect of forcing intended parents to go overseas (including to
developing countries which may have few or any legal protection).
South Australia is out of step in respect of single
people undertaking surrogacy with most other Australian jurisdictions:
·
In
Queensland the Surrogacy Act 2010 (Qld)
does not discriminate there have been a number of orders made in favour of
single intended parents.
·
Similarly
the Surrogacy Act 2010 (NSW) does not
discriminate. The Parentage Act 2004 (ACT) does not discriminate on sexuality. It was the first legislation regulating
surrogacy in Australia. The Parentage Act requires the surrogate to
be part of a couple and the intended parents to be a couple. There is no apparent rationale as to why both
are required.
·
The
Assisted Reproductive Treatment Act 2008
(Vic) and the Status of Children Act 1974
(Vic) do not discriminate. Single people
can undertake surrogacy.
·
The
Surrogacy Act 2012 (Tas) does not discriminate as to whether someone is single
or as to sexuality, but it does require all parties at the commencement to
reside in Tasmania – although this is a requirement that can subsequently be
dispensed with.
·
Western
Australia does discriminate under its Human
Reproductive Technology Act 1991 (WA) and Surrogacy Act 2008 (WA). As
would be well known to you, Western Australia recognises that there is an issue
with discrimination, it being one of the topics to be tackled in the current
surrogacy review there.
6.
Who
wants to be a Surrogate?
The typical surrogate is
a woman who:
·
Is
over 25
·
Has
had all of her own children
·
Likes
being pregnant
·
Has
had problem free pregnancies and quick, problem free child births
·
Above
all, sees it as her mission in life, and for some, a mission from God, to give
the gift of life to others. This is the
case for surrogates I have acted for or dealt with from Australia, New Zealand,
Canada and the United States.
I have acted in cases in Queensland and New South
Wales where:
·
The
surrogate has not had children before; or
·
The
surrogacy journey is traditional, not gestational.
With careful screening,
these surrogacy journeys can work very well, although our immediate instincts
with either is that they will be problematic journeys. Part of the key in my view to successful
surrogacy journeys is that there is careful screening. This is done in three ways:
·
Careful
counselling and screening by the pre-signing counsellor;
·
Independent,
adequate legal advice, matched with a thoroughly drawn surrogacy arrangement
that identifies relevant issues if something goes wrong;
·
Careful
attention by an IVF clinic’s ethics committee.
I insist in all my surrogacy arrangements that the obligations of each
party are clearly set out. Surrogate
clients feel empowered that there is a clause in the surrogacy arrangement akin
to section 16 of the Surrogacy Act 2010
(Qld) and taken up in section 10H of the Family
Relationships (Surrogacy) Amendment Bill 2017 (SA) that the surrogate has
the same rights to manage her pregnancy and childbirth as any other woman. I can’t emphasise how important this
statement of principle (which is also seen in the Tasmanian legislation) be part
of the statute law of South Australia.
In my view it is vital
that this clear statement (and the clearly enunciated guiding principles and
objects of the Queensland Act, including as to openness and honesty) become
part of the statute law of South Australia.
The view that surrogates
are oppressed is not consistent with what I have observed in Australia, Canada,
New Zealand or the US. Surrogates in
these countries at least appear to be modern, assertive women.
7.
Digital
Disruption
Whether we like it or
not, we are in the midst of the digital revolution. The genie is out of the bottle. Digital disruption is not isolated to cab licences
and Uber. Intended parents as a matter
of course go on line, often from their mobile phone, to find out how they can
be parents through surrogacy. Sometimes the
information that they obtain is accurate.
At other times the information is widely inaccurate or misleading. I applaud the continuing efforts of VARTA to
provide information to members of the community. I have lost count of the number of South
Australian clients who have a paucity of information about their options of
family formation.
In May I spoke at the
ART Conference of the American Bar Association.
The chair of the ART Committee of the American Bar Association, Mr Rich
Vaughn stated to that conference that the number of surrogacy agencies in
California alone are 90. It is likely
that there are several hundred surrogacy agencies in the United States. They are all competing for business and most
of them have an active web presence.
To go back to the
numbers in an ordinary year there are approximately 40 a year born through
surrogacy in Australia and 250 born overseas although in 2016 – 17 that figure
was 142. These numbers demonstrate what
is seen every day practice – a continued frustration by intended parents about
there not being available egg donors or surrogates. In the process of preparing this submission,
I have been unable to find current figures as to the number of surrogacy orders
made by the Youth Court of South Australia each year. In previous reports the number of orders has
averaged 1 per year, with one year there having been 2 and another year there
being 0.
South Australia has a
population of about 1.7 million people.
The Australian population is approximately 24.7 million. In other words, approximately 7% of
Australians reside in South Australia.
One might expect, based on the national numbers that if surrogacy is
being entered into in the same rate in South Australia as it is in the rest of
the country, then:
·
In
years when 250 children are born overseas through surrogacy, 18 of those are
coming from South Australia.
·
In
2016-2017 when there were 142 children born overseas, there should be 10 of
those from South Australia.
·
Of
the 40 children born a year domestically and subject to domestic parentage
orders, there should be 3. Instead there
have been 0, 1 or 2. I note that AWOTE
in November 2017, (according to the Tasmanian Treasury) in South Australia was $75,000. By comparison Western Australia the
corresponding figure was $91,000 a year.
It may be that because the income in South Australia is proportionately
lower than other States that the amount of surrogacy being undertaken is
proportionately lower.
The cost of surrogacy
varies dramatically, and one might think, it might encourage intended parents
to stay at home and not go abroad. The
figures I estimate from asking my clients, reviewing documents (such as
gestational carrier agreements) and talking to industry figures are:
·
The
cost of surrogacy in Queensland, New South Wales, Victoria and South Australia
is $30,000 to $70,000.
·
The
cost of surrogacy for Australians going to the United States is between
$145,000 to $300,000 (although one agency has a VIP program where the cost is
about $400,000).
·
The
cost of surrogacy in Canada is between $80,000 to $120,000 - although I would
suggest $120,000 as a ball park figure.
·
A
large proportion of the cost in Australia is the cost of IVF. Due to arcane Medicare rules, the cost per
IVF cycle can vary widely. If intended
parents have the benefit of Medicare rebates, the cost per cycle is about
$5,000 per cycle. If they do not, it is
$17,000 per cycle. Couples may endure
two or three cycles on their domestic surrogacy journey.
The temptation is to
produce a perfect form of stringent regulation, the aim of which is that no one
is exploited, human rights are protected and that adequate safeguards are in
place. A model of stringent (as opposed
to adequate) regulation will inevitably fail, because it does not take into
account human behaviour including the desire to become a parent, and the
digital world in which we live.
Sir David Attenborough
said in 1990:
“If you watch animals objectively for any length of
time, you are driven to the conclusion that their main aim in life is to pass
on their genes to the next generation.
Most do so directly, by breeding.
In the few examples that don’t do so by design, they do it indirectly,
by helping a relative with whom they share a great number of their genes. And in as much as the legacy that human
beings pass on to the next generation is not only genetic but to a unique
degree cultural, we do the same. So
animals and ourselves, to continue the line, will endure all kinds of hardship,
overcome all kinds of difficulties, and eventually the next generation
appears.”
Sir David in my view
summarises what intended parents will do in the desperate bid to become
parents.
The challenges are:
·
Consumers
who want to be parents will increasingly adopt solutions for them, not solutions imposed by regulators. The rise of Uber and the demise of taxi
licencing and the rise of the use of photo voltaic cells generating electricity
at home are both clear parallels of consumerism at play. Consumers will increasingly adopt digital “solutions” and seek information from the
web available to them in seconds. If
consumers perceive that regulations are too stringent, and don’t strike the
right balance – they will go elsewhere.
This has already been demonstrated in Western Australia, for example,
with its surrogacy regulation where it appears that a far larger number of
intended parents go overseas for surrogacy than do so within Western Australia.
·
The
risk in their doing so is that some go to jurisdictions where there is no or
only a minimal human rights framework.
The challenge is to ensure that the balance of regulation is such that,
with adequate safeguards, that intended parents are encouraged to be parents at
home, not abroad.
·
The
current settings mean that intended parents who go to well-regulated
jurisdictions with strong human rights based approaches, such as the United
States or Canada are treated the same in Australia as those who go to
developing countries, which often lack any protections or regulations.
·
Those
who had given up on the idea of ever becoming parents, are increasingly aware
that they can now become parents - and demanding solutions.
8.
General
commentary on the profile of those undertaking surrogacy
I do not keep specific
figures about the sexuality of my clients.
Because of biology, it is not surprising that a large number of those
who intend to become parents through surrogacy are gay couples. From my experience it is not a majority. I have seen a small number of single intended
parents (primarily men, although some women) seeking to be parents through
surrogacy, a small number of lesbian couples seeking to access surrogacy and
the occasional transgender intended parent.
One may think that
lesbian couples will never access surrogacy because if one woman could not get
pregnant then the other can. Although
not common, nature is not always so kind.
On occasion lesbian couples need to access surrogacy.
Similarly, one might
expect with a gay couple that if the sperm of one does not work, then they can
become parents using the sperm of the other.
On uncommon occasions I have had gay couples who have needed to
undertake sperm donation in order to become parents through surrogacy.
The desire to become
parents is just as strong with clients who are:
·
Heterosexual
couples
·
Gay
couples
·
Lesbian
couples
·
Single;
and
·
Trans/non-binary.
Similarly the desire to
conceive and love a child seems to make little difference as to whether there
is a genetic connection between the intended parents and the child.
9.
Is
money the motivation?
The expenses paid for
Australian surrogates varies from case to case, but from my experience has been
between $8,000 and $30,000, often in range of $11,000 to $15,000.00. The one case in which my firm acted where the
surrogate’s expenses were $30,000 involved a surrogate who ceased work for
medical reasons. The intended parents
had not obtained income protection for her.
If that insurance had been obtained, the cost would have been much
lower. The court in making the parentage
order was aware of the amount.
Canada has an altruistic
model of surrogacy. A typical Canadian
surrogate will be reimbursed expenses of up to a cap of CAN$20,000 to
CAN$22,000.00. I note that the Canadian
dollar is roughly at parity with the Australian dollar.
The US is viewed as
typically having a commercial model of surrogacy. However, as was made plain in Re Halvard [2016] FamCA 1051, surrogacy
in the US may be within Australian definitions of altruistic surrogacy.
Surrogacy regulation in
the US varies from State to State and often is governed by judge made laws. My
US colleagues have made plain to me, time and again, that judges there expect
certain norms to be met in terms of the gestational carrier agreements –
including disclosure on criminal convictions of all concerned, and caps on the
amounts that surrogates receive by way of base compensation.
Base compensation varies
considerably across the US from as low as US$20,000 in some places to typically
US$37,000 to US$42,000 in California. Base
compensation in California can be as high as US$60,000.00.
While money is a clear
motivation, the message I have received time and again from lawyers, surrogacy
agencies and surrogates is that the prime motivator for surrogates is giving
the gift of life, not that of money.
There is some limited research to this effect also.
Surrogacy agencies in
the US avoid would be surrogates who are indigent or in receipt of social
security, for obvious risk reasons:
·
The
would be surrogate is acting out of financial desperation, the wrong
motivation; and
·
Therefore
may be more inclined not to care for the unborn child properly through the
pregnancy, or indeed call off the surrogacy.
Surrogates in the US and
Canada from my experience are typically usually working or middle class women
or have typically have finished high school.
Most are married. Some co-habit
with male partners. Some are single. Few are lesbian. Some have college degrees and a few have
post-graduate qualifications.
The profile of US and
Canadian surrogates is a little different in my experience to Australian
surrogates: most of whom are working or middle class, most are married, some de
facto, some single, a few lesbian.
Typically Australian surrogates have finished high school. Some are professionals. One was a chief financial officer, and another
a doctor.
A leading US case on
surrogacy was that of Johnson v Calvert (1993) 5 Cal.4th 87 – a
decision of a seven member bench of the Supreme Court of California. The case concerned a dispute between the surrogate
and the intended parents. The surrogates
name was Anna. In the primary judgment,
this was stated:
“Anna and some commentators have expressed concern
that surrogacy contracts tend to exploit or dehumanize women, especially women
of lower economic status. Anna’s
objections center around the psychological harm she asserts may result from the
gestator’s relinquishing the child of whom she has given birth. Some have also cautioned that the practice of
surrogacy may encourage society to view children as commodities, subject to
trade at their parents’ will.
We are all too aware that the proper forum for
resolution of this issue is the Legislature, where empirical data, largely
lacking from this record, can be studied and rules of general applicability
developed. However, in light of our
responsibilities to decide this case, we have considered as best we can its
possible consequences.
We are unpersuaded that gestational surrogacy
arrangements are so likely to cause the untoward results Anna cites as to demand
their invalidation on public policy grounds.
Although common sense suggests that women of lesser means serve as
surrogate mothers more often than do wealthy women, there has been no proof
that surrogacy contracts exploit poor women to any greater degree than economic
necessity and general exploits them by inducing them to accept lower-paid or
otherwise undesirable employment. We are
likewise unpersuaded by the claim that surrogacy will foster the attitude that
children are mere commodities; no evidence is offered to support it. The limited data available seen to reflect an
absence of significant adverse effects of surrogacy on all participants…
The argument that a woman cannot knowingly and
intelligently agreed to gestate and deliver a baby for intending parents
carries overtones of the reasoning that for centuries prevented women from
attaining economic rights and professional status under the law. To resurrect this view is both to foreclose a
personal and economic choice on the part of the surrogate mother, and to deny
intending parents what may be their only means of procreating a child of their
own gene.”
10.
The
myth of rich intended parents
While surrogacy is not
cheap, it is untrue to assert that the only people who undertake surrogacy are
rich.
Most Australian intended
parents – whether undertaking surrogacy domestically or internationally – are
middle class. They save up or draw down
their mortgage, borrow money from the bank, family or friends or access superannuation
to undertake surrogacy. Richer
Australian intended parents undertake surrogacy through more expensive
surrogacy agencies. Those with not so
deep pockets so not, and either go to cheaper US surrogacy agencies, to Canada,
or to other cheaper destinations, such as the Ukraine.
Due to their ethnicity,
Australians may seek to undertake surrogacy in their country of origin. For example, Iranian Australians may do so in
Iran, or Greek Australians may do so in Greece.
11.
Comparison
with interstate models
As you are no doubt well
aware, the House of Representatives’ Surrogacy Inquiry in 2016 recommended that
there be national non-discriminatory laws as to surrogacy. That report has not been acted upon in any
way. Nevertheless, there are plain
difficulties with the model of regulation of surrogacy in South Australia and
difficulties with interstate arrangements.
Example
of George and Mildred
George and Mildred live in London where
George has a very successful career in the City. They are unable to conceive children except
through surrogacy. George’s
sister-in-law, Elizabeth who lives in Brisbane with her husband Phillip
offers to be the surrogate. George and
Mildred, Elizabeth and Phillip enter into a Queensland Surrogacy
Arrangement. They can do this even
though George and Mildred do not live at the time of signing in Queensland,
because the requirement for jurisdiction in Queensland is that of residence
at the time of the making of the order.
There is no requirement to reside in Queensland (or for that matter in
New South Wales under its legislation) at the time of entering into the
arrangement.
In accordance with the ANZICA Counselling
Guidelines, counselling has to occur in person prior to entry into the
surrogacy arrangement. That
counselling occurred. After the birth
of the child, George and Mildred move to Queensland. As they are resident in Queensland at the
time of the hearing of the application, they are able to and do obtain an
order from the Childrens Court of Queensland transferring parentage to
them. The Family Relationships Act does not have that flexibility and nor
does the Family Relationships
(Surrogacy) Amendment Bill 2017 in section 10I (2)(c) and would have
prevented a couple such as George and Mildred coming within the regulatory
regime of the Act, including ultimately judicial oversight of the
process. They would have been denied
becoming parents if the surrogate had been living in South Australia – unless
they had moved to South Australia at the time of entry into the surrogacy
arrangement.
It is likely that if George and Mildred had
been unable to access a regulatory regime allowing family surrogacy they
would have instead undertaken surrogacy in the United States.
|
Example
of Bill and Ben
Bill and Ben are a couple in South
Australia. Despite their best efforts,
they have been unable to find a local surrogate. They decide to pursue surrogacy in the
United States. Their surrogacy journey
is a success. They are recognised by a
US court order as the parents. They
did not obtain the approval of the relevant Minister under the Family Relationships Act 1975,
following the 2005 amendments. It is
impossible to obtain that approval in any event because:
·
Despite
the law being in place for almost 3 years there has never been a finalised State Framework for Altruistic Surrogacy;
and
·
The
relevant changes to the Family
Relationship Regulations have never been made.
Because that approval has not been obtained,
Bill and Ben cannot obtain an order recognising their parentage in the Youth
Court.
They acknowledge that they have been
recognised by a court order as the parents.
Their child, Jenny has obtained Australian citizenship.
It is uncertain, in light of the decision of
Bernieres and Dhopal [2017] FamCAFC
180 that Bill and Ben have a legal parent/child relationship with Jenny under
the Family Law Act and therefore
for inheritance purposes.
The only options that Bill and Ben have that
will formalise their legal parent/child relationship are:
1.
Registration
of the US Surrogacy Order under section 70G of the Family Law Act 1975 (CTH).
This is problematic. It has
only occurred in three cases: Re
Halvard [2016] FamCA 1051, Re
Grosvenor [2017] FamCA 366 and
Sigley & Sigley [2018] FamCA 3.
In each of those cases the court was concerned – in the exercise of
its discretion – about public policy concerning commercial surrogacy and not
seeming to endorse parties engaged in breach of the law of the relevant
State.
2.
Registration
under the 1996 Hague Child Protection
Convention with the Family Court of Australia. In theory this could occur. However the convention under Article 4 is
not concerned with the establishment of parentage but with transfer of
parentage. Under Article 22 there is
an exception for public policy grounds, and therefore see back to the
discussion in Re Halvard and
subsequent cases.
There are differences depending on where
Bill and Ben underwent their surrogacy in the United States. If they underwent surrogacy in California
then those two options are the only two options available to them and to
Jenny. California, like many US states,
regulates surrogacy by the making of pre-birth orders. These orders recognise the intended parents
as the parents of the child typically at 6 months gestation. The effect is that when the child is born
then the intended parents are automatically recognised as the parents.
In some jurisdictions, the regulation of
surrogacy occurs post birth. This is
typically done by a transfer of parentage to one parent and then a second
parent adoption in favour of the other parent. If Bill and Ben had gone to Minnesota and
Bill was the genetic parent, then this would have occurred:
·
Jenny
is born.
·
A
birth certificate issues recognising the surrogate and her husband as the
parents of Jenny. As in Australia, a
birth certificate is evidence of parentage, but not proof of parentage.
·
An
order is then made transferring parentage to Bill and terminating the
parental relationship between the surrogate and her husband with Jenny. The effect of that order means that under
Minnesota law the surrogate and her husband no longer have rights of custody
under the 1980 Child Abduction
Convention.
·
A
second birth certificate issues, showing Bill as the parent.
·
A
second parent adoption order is made in favour of Ben.
·
A
third birth certificate issues, showing Bill and Ben as the parents.
It is unlikely that the second parent
adoption falls within the 1993 Hague
Inter-country Adoption Convention.
Because of the definitions of adopted, child and parent under
section 4 of the Family Law Act 1975
(Cth), parent two, being Ben, is without doubt a parent under the Family Law Act. It would also therefore appear that parent one
(from whom parent two became a parent) namely Bill must also be a parent –
although this is untested.
|
Example
of Frida and Benny
Frida and Benny are a couple living in
Adelaide. Frida’s sister, Agnetha, who
lives in Gawler, offers to be their surrogate. She is prepared to be a traditional
surrogate.
It is legal for traditional surrogacy to be
undertaken under the Family
Relationships Act. However, the
Ethics Committee of XYZ IVF Clinic in Adelaide has decided not to facilitate
traditional surrogacy because of perceived risks with traditional surrogacy.
Frida and Benny then search for an egg donor
but are unable to find one in South Australia. Instead they find Marie, who is a
prospective egg donor living in Sydney.
Marie wants to undertake IVF in Sydney, just
down the road from where she lives.
Frida and Benny therefore have these
choices:
1.
If
they undertake IVF in New South Wales, as they desire and in accordance with
Marie’s wishes, they will be unable to proceed with a surrogacy arrangement
in South Australia. Therefore they
have to persuade Marie to come to Adelaide for treatment, or find another egg
donor, or enter into a New South Wales (or Queensland) surrogacy arrangement
on the basis that at the time of the birth and then proposed order concerning
the child they are living in New South Wales (or Queensland).
The Family
Relationships Act simply does not have the flexibility that the Surrogacy Acts of Queensland, New
South Wales or Tasmania have about where IVF may occur.
It may seem at first blush that allowing IVF
to occur anywhere allows a free-for-all as to where parties may undertake
IVF. In reality, because there is
judicial oversight, care still needs to be taken as to which IVF clinic is
chosen (if it is overseas) because in Queensland, New South Wales and
Tasmania evidence from the doctor ought to be put before the court and
therefore the accepted as an expert witness and the report accepted. Failure to accept that expertise or the
report will likely mean that a parentage order may not be made.
By contrast if Marie lived in Melbourne,
because of similar requirements of the Assisted
Reproductive Treatment Act 2008 (Vic) and the Status of Children Act 1974 (Vic), doctors there would not
provide treatment. Frida and Benny
would be obliged to either fly Marie to South Australia or search for another
donor, including overseas.
|
12.
Compensation
In my view, surrogates
ought to be properly compensated and should no longer be out of pocket. Surrogates have a real risk of death. They endure all kinds of expenses.
The definition of the
expenses that can be paid is currently contained in section 10HA (2a)(i). This provision was amended in 2015,
clarifying to a degree the costs of the surrogate that could be paid, following
representations by me. In my view, it
remains unclear as to what costs of the surrogate can be paid even with the
catchall provision in section 10HA (2a)(i)(v) of “reasonable out of pocket expenses incurred by the surrogate mother in
respect of the agreement”.
I note that there is
some clarification in section 10L of the Family
Relationships (Surrogacy) Amendment Bill 2017 (SA).
In my view the
definition of what could be included is still unduly prescriptive.
Example
of Annemarie
Annemarie
was a surrogate in Brisbane. The
intended parents lived in Sydney.
During the course of her pregnancies Annemarie would suffer
backaches. Annemarie sought that she
have acupuncture and massages during the course of pregnancy. Each of these was deemed to be a reasonable
cost within the relevant section sections of the Surrogacy Act 2010 (NSW) and the Surrogacy Act 2010 (QLD).
It is likely that each of these would be
included within the current definitions under the Act if this were a South
Australian surrogacy arrangement under section 10 HA (i)(i) [a pregnancy,
(including any attempt to become pregnant) that is subject to the agreement]
or (v) [reasonable out of pocket expenses incurred by the surrogate mother in
respect of the agreement].
Annemarie was a dog walker. She owned her own business. Typically this involved her walking half a
dozen or so dogs. Her concern was to
ensure that during the period that she was a surrogate that she would be able
to employ a locum so that she did not lose her business. In my view she was able to employ a locum
because this was a reasonable cost undertaken by her associated with her
being pregnant. I did not want to be
responsible for my client who typically would be on inline skates being
pulled up and down the hills and dales of Brisbane whilst pregnant for
someone else.
The solicitor for the intended parents
contended that it was not a reasonable expense because it was not allowed
under the specific provisions of section 11 (2) of the Surrogacy Act 2010 (Qld) and section 7 (3) of the Surrogacy Act 2010 (NSW). Relevantly section 11 (2)(f) allows the
birth mother surrogacy costs to the value of her actual lost earnings because
of leave taken for a period of not more than 2 months during which a birth
happened or was expected to happen (and the identical provision under section
7(3)(e) of the Surrogacy Act 2010
(NSW)). My view was that the costs
were reasonable because:
1.
It
was not intended for my client to profit by having a locum, but merely
ensuring that she was not out of pocket.
From that point of view the payments were reasonable.
2.
It
was reasonable not to have my client being pulled by a bunch of dogs up the
hills and dales of Brisbane whilst pregnant.
3.
What
was under subsection 2 or 3 respectively of both Acts were examples of a
clear guidance.
4.
The
expectation under section 11(2)(f) of the Queensland Act and section 7(3)(e)
of the New South Wales Act was that the surrogate was employed. My client was self-employed and therefore
that provision did not strictly apply.
5.
In
any event if needed my client would no doubt be able to obtain a letter from
a doctor to say that she was unable to work on medical grounds related to
pregnancy for the purposes of section 11(2)(f)(ii) and section 7(3)(e)(ii)
respectively.
After having had this carefully explained,
the other solicitor agreed.
Subsequently I note that a parentage order
was made in the NSW Supreme Court. My
understanding is that the court was advised of the existence of the hiring of
the locum.
|
It would be of
assistance rather than the drafting of section 10L in the Bill to use the
language in the Queensland or New South Wales Acts which are more inclusive and
flexible and in turn provide greater to clarity to practitioners, parties and
the courts as to what expenses are allowed and what are not.
There are a myriad of
different rules varying from State to State as to what is or what is not
commercial surrogacy. In my view,
following the decisions of the Family Court, there is much more of a blurred
line as to what is commercial surrogacy in Australia (which I’ll detail
below). In Victoria, for example, it is
a criminal offence to pay life insurance for the surrogate – even though by
becoming pregnant and giving birth she has a risk of death. The approach in Western Australia is so
restrictive that expenses which are deemed reasonable (such as acupuncture or
massages as seen in Marie’s case would render the surrogacy arrangement a
surrogacy arrangement that is for reward and therefore a criminal offence in Western
Australia.
Interstate matters
(where the surrogate and intended parents live in separate States) need to
comply with the criminal law of both States.
Therefore whichever
State has the lowest common denominator of expenses in the surrogacy arrangement
determines what expenses can be included and what cannot be included.
This hunt for the lowest
common denominator and regulatory compliance adds cost to clients’ bills,
reduces flexibility and prevents at times such basic things as life insurance,
massages and acupuncture from being obtained.
13.
Recognition
of Interstate Parentage Orders
There is no specific
recognition in the Births, Deaths and
Marriages Registration Act 1996 (SA) of interstate parentage orders.
To invoke the alteration
of the birth register for a child born in South Australia, there is a
requirement under section 22A that there is a notice under section 10HD of the Family Relationships Act. This begs the question as to why such a
notice is needed. There is a saving to
the taxpayer in Queensland by the relevant parties filling out a form to
register the change in details and also to provide a sealed copy of the
order. Rather than impose a duty upon
public servants, this imposes the burden on those who wish the change to be
made, namely the parents.
Be that as it may,
section 22A does not provide for the recognition of interstate parentage orders. Section 22A (5) deals with a child whose
birth is registered in another State, but does not cover the situation of an interstate
parentage order where the birth occurs in South Australia. One may think that there is the ability to
resolve that issue by the use of reciprocal administrative arrangements under
section 11 and similar like provisions of interstate legislation. Previous experience (between New South Wales
and Victoria) meant that specific legislation was passed in Victoria as it was
considered that that provision was inadequate to cover this specific issue.
It is likely that an
application to a Magistrates Court under sections 19 and 20 of the Act may
resolve in the correction of the register.
Given that it is the obligation of South Australia under section 118 of
the Commonwealth Constitution to give full faith and credit to the judicial proceedings
of every State, why should it be necessary for parents who are recognised by an
Interstate parentage Order as the parents and therefore, by virtue of
regulation 12CAA of the Family Law
Regulations 1984 (Cth) and section 60 HB of the Family Law Act 1975 (Cth) as the parents for all purposes in
Australia to have to make an application to the Magistrates Court to ensure
that the register is corrected?
Prior to the 2015
amendments, this issue arose for clients of a Victorian colleague where the
intended parents obtained a substitute parentage order in Victoria but the
child was born in South Australia. It
took 4 months to resolve the impasse and meant that the intended parents had to
deal with both the Registrar’s of Births, Death and Marriages in South
Australia and Victoria. My colleague
described the process as a “nightmare”.
The 2015 amendments do
not seem to have dealt with this specific issue.
I note that the process
of altering the birth register in Queensland for a child born there and the
subject of an interstate parentage order typically takes 2-3 days once the form
is lodged with the Registrar.
14.
Publishing
Offence
The idea that it should
remain an offence to publish to seek a surrogate or an intended parent seems
that the utility of the offence has been outlived by reality. Everyday, anyone in South Australia who wants
to undertake surrogacy can open their mobile phone and within a few seconds see
an advertisement to undertake surrogacy somewhere else - typically on a
commercial basis.
Similarly everyday
anyone in South Australia who wants to find a surrogate or an intended parent
can go on to a Facebook group and seek to do so.
15.
Language
The international term
of those who wish to be parents through surrogacy is intended parents. This is
commonly used in the courts in the United States and Canada and by colleagues
in the United Kingdom. It is also the
language of interstate legislation, such as Queensland and New South
Wales. The phrase in Western Australia
of arranged parents doesn’t give
credit to the role of those who wish to be parents.
Similarly archaic
language such as substitute parents, as
seen for example in Victoria, seems as though their parenting is not real but
fake.
Commissioning
parents
sounds as though they have bought a baby in the same way they might have
commissioned a ship or the purchase of a car or a refrigerator. It is in my view somewhat disrespectful of
them and of the process, which at its best is magical. These people intend to be the parents, and
hopefully with the making of an order, which should be termed a parentage
order, become the parents as a matter of law.
16.
Withholding
Consent
There are two issues
about withholding consent. The first is
that the surrogates husband or partner is recognised to be just as much a
parent under law as the surrogate. Both under
the Act and under the Bill, his views are merely taken into account when a
court is considering making an order. He
does not, unlike the surrogate, have a right of veto. The surrogate and her partner should have
equal legal standing. Having acted for a
South Australian surrogate and her husband who initially withheld consent, it
was somewhat degrading of the husband to explain to them that his position was
very much second rate – that his wife had the right to veto but that he did
not.
Imagine a circumstance
in which a surrogate consented to an order but her estranged partner did
not. It is possible that the court in
those circumstances could make an order despite the former partner’s objection.
The second issue is that
the intent of the legislation is that the woman who has given birth should have
the right to decide whether or not she should handover legal responsibility for
the child. She should not be pressured
or the subject of duress. Unfortunately,
as seen in cases such as Lamb & Shaw
[2017] FamCA 769, a surrogate has the ability to withhold consent for any reason. There ought to be the ability, as one
sometimes sees in adoption legislation to transfer parentage even without the
consent of the surrogate and her partner when special circumstances demand it.
The complaint that I
have recently heard from UK colleagues is that surrogates there capriciously at
times withhold consent causing untold grief to the intended parents and, one
must think, failing the best interests of the child.
17.
Eligibility
To ensure commonality
across Australian States as to regulation, it is urged:
1.
Adopt
the model seen in New South Wales or Queensland. Eight years of practice with the model
demonstrates that in general it works very well, with flexibility and
sufficient checks and balances to protect all concerned. My view is that the Queensland legislation is
preferable out of the two, but there is little difference between them.
2.
Consistent
with that, change the definition of eligibility to that seen in New South Wales
and Queensland – a model giving greater flexibility than under the Family Relationships Act.
18.
Six
Month Limitation
The six month limitation
period is common across Australia. It
was initially legislated under the Parentage
Act 2004(ACT). It was copied from UK
legislation. Its source was completely
arbitrary: the needs of a constituent of a member of the House of Commons.
While intended parents
should pursue an application as quickly as possible, greater flexibility should
be allowed than currently exists if the intended parents fall outside the six
month period, as seen in for example Re X
(a child)(Surrogacy: Time Limit) [2014] EWCH 3135 (Fam).
19.
The
Model for Surrogacy Regulation
Western Australia and
Victoria are alone in requiring regulatory approval before the surrogacy
arrangement can proceed. The model is that
if regulatory approval has been obtained, then the process before the court is
straightforward. It is presumed that the
regulator got it right.
Having advised many
clients in Queensland, New South Wales, Victoria and South Australia about
surrogacy, I don’t see that there is anything particularly magical about there
being a regulator. The taxpayer has to
pay for the regulator. With the
regulatory model the intended parents have to obtain the approval of the Ethics
Committee of the IVF Clinic as well as obtain the approval of the regulator.
Not having a regulator means that they still have to obtain the approval of the
Ethics Committee of the IVF Clinic. IVF
clinics are very keen to ensure that they don’t impose risk where it is
unnecessary. They are very much risk
averse. They do not wish to be viewed as
risking their licences to operate or risking insurance.
The regulatory model in
Western Australia and Victoria has in my belief two flaws:
1.
It
adds another step which really does not reduce risk to any great degree, but
adds delay and a cost burden to the taxpayers which does not exist for taxpayers
in the other States.
2.
It
doesn’t address what happens post birth.
It presumes that all will be hunky dory post birth because the regulator
got it right. In one case in which I was
asked to save a failed surrogacy arrangement, the surrogacy had been approved
by the Patient Review Panel in Victoria.
Quite clearly, inadequate screening had occurred despite their being a
regulator. The parties fell out post-birth. There was no mechanism for post-birth
assessment or counselling as there is in Queensland and New South Wales and is
there now to a limited degree in South Australia in part because of submissions
that I made. When the parties fall out
post-birth, it is extremely helpful if there is some counselling or assessment
process so that each of the parties know that they have been heard and they can
move towards a workable solution with a minimum of acrimony. In my view, the post-birth model as seen in
Queensland or New South Wales works well.
It is respectful towards the surrogate.
In my view there doesn’t need to be the relinquishment counselling as
seen in New South Wales, but if it is to occur, then it is best to occur from
being given by the counsellor who provide the pre-signing counselling. This is so that the surrogate and her partner
only have to deal with two counsellors in the process, rather than three.
20.
Role
of the Minister
The Act requires that
the Minister consider or approve overseas surrogacy arrangements.
I note that the State Framework for Altruistic Surrogacy
has never been published and the relevant regulations have never been
proclaimed.
Currently those intended
parents in South Australia who wish to undertake surrogacy and are unable to
locate a surrogate are likely to go overseas.
In light of the decision in Bernieres
and Dhopal they have uncertainty about the parent/child legal relationship
after they return. This is unfortunate
for them, but potentially much worse for the child.
It seems impractical to
me as to why the Minister should have this burden. This option was considered by politicians in
Israel some years ago but quickly rejected because it was seen as being
impractical. There would be an ever
mounting pile of information requested as to each surrogacy journey. The Minister, with respect, I presume is not
an expert on overseas jurisdictions, surrogacy agencies or IVF clinics. To properly discharge his or her role under
the legislation, the Minister would require a burdensome amount of information
– and even then may not be satisfied as to whether it is an appropriate
jurisdiction, surrogacy agency or IVF clinic.
We do not want a repeat
of Baby Gammy. To avoid that repeat, we
should be making it easier, not harder, for intended parents to undertake
surrogacy at home. The message I have
heard loud and clear from over a thousand surrogacy clients is that if possible
they would rather do IVF in Australia with all the legal requirements of
surrogacy here than to do so overseas.
21.
Offences
In my view, the offences
as currently set out under the Family
Relationships Act are appropriate.
The setting in Australia is to stop commercial surrogacy. From that
point of view the offences are appropriate because they prevent brokers.
The Bill on the other
hand intends to prohibit commercial and other unlawful surrogacy
arrangements. What has been seen in
every State is that not one person since the changes of about 8 to 10 years ago
has been prosecuted with a surrogacy offence.
One wonders why a party
who enters into a commercial surrogacy arrangement should be subject to a
punishment of 5 years imprisonment. The
comparative penalties in the ACT, New South Wales and Queensland for example
are:
·
ACT
– one year imprisonment;
·
New
South Wales – 2 years imprisonment or $110,000 fine;
·
Queensland
– 3 years imprisonment or a fine.
I have a concern about a
party entering into a non-compliant surrogacy arrangement.
Example
of Daisy and Duke
Daisy and Duke live in South Australia. Daisy’s sister Catherine and her husband
Luke live in New Zealand. Catherine
and Luke are unable to have children.
Daisy volunteers to be a surrogate.
The process of surrogacy in New Zealand involves extensive checking by
the State regulatory authority before entry into any surrogacy arrangement
and ultimately a process of Court sanctioned adoption.
To formalise the interfamily arrangement and
to:
·
satisfy
Australian and New Zealand authorities that the parties were not engaging in
child trafficking;
·
that
there was no breach of the 1993 Hague
Intercountry Adoption Convention;
·
to
satisfy the court in New Zealand as to the nature of the arrangement;
·
to
satisfy the IVF clinic in California that there was a surrogacy arrangement,
the parties enter into a surrogacy
arrangement. It is an altruistic
surrogacy arrangement.
The arrangement must, of necessity, be
non-compliant with South Australian law because:
·
the
commissioning parents do not live in South Australia;
·
IVF
was not undertaken in South Australia but in California.
All proceeded to plan. The child was born, travelled with Daisy
and Duke, Catherine and Luke to New Zealand.
There was no difficulty exiting Australia or entering New Zealand. The New Zealand Court made the order
transferring parentage. The court was
satisfied making the order was in the best interests of the child.
If clause 10T(2) of the Bill were enacted,
then Daisy and Duke would have committed an offence.
|
There will always be
people who seek to undertake traditional surrogacy at home. Traditional surrogacy has been with us since
the dawn of time. A copy of the
surrogacy arrangement was put before them.
After all, it was first described in Genesis. These surrogacy arrangements will be
non-compliant. There may be difficulty
transferring parentage. Whilst these
arrangements should not be encouraged, is it appropriate that the parties
commit criminal acts? For an example of
such an arrangement, a Tasmanian arrangement, see Lowe and Barry [2011] FamCA 625.
It is perceived in South
Australia that if there is an offence in the statute books concerning surrogacy
that no offence will be committed by parties by engaging in surrogacy
overseas. Clause 10T(1), the entry
offence, may well be inadvertently committed by parties who engage in commercial
surrogacy overseas.
There is no specific
extraterritorial law extending the jurisdiction of South Australia, as seen by
contrast in Queensland, New South Wales and the ACT. However, there is section 5G of the Criminal Law Consolidation Act 1935 (SA)
which is what is known as a long arm law, i.e. the law reaches out and grabs
someone overseas.
In Farnell & Chanbua [2016] FCWA 17, Thackray CJ noted that on its
face, Mr and Mrs Farnell may have committed an offence under the Surrogacy Act 2008 (WA) by entering into
a surrogacy arrangement that is for reward.
Western Australia does not have an extraterritorial provision
either. His Honour noted the equivalent
to section 5G, which is section 12 of the Criminal
Code (WA) was the basis by which they may have committed an offence.
History demonstrates
that trying to stop (by criminal sanction) people going overseas for surrogacy
does not work. A better approach is that
under s.10H of the Act. This targets
those seeking to profit, and does not unfairly target either intended parents,
surrogates or their partners.
Clause 10U(1) of the
Bill may seem to be a rewriting of section 10H(1) of the Act. It is a significant widening. Whilst on its face, clause 10U(1) appears to
be substantially the same, why it is a considerable widening is that section
10H(1) refers to surrogacy contract
whereas clause 10U(1) refers to surrogacy
arrangement. The difference is
substantial. If a solicitor in South
Australia negotiates a surrogacy contract currently, then the solicitor commits
an offence. Surrogacy arrangements under
the Act are not binding. They are not
contracts. If clause 10U(1) is enacted,
then a solicitor cannot take part in
negotiating a surrogacy arrangement for a client.
The United Kingdom has a
similar offence. The effect is that
solicitors there cannot assist their clients in the drafting or negotiating the
terms of surrogacy arrangements. My UK
colleagues tell me that what happens instead is that intended parents and surrogates
go to Facebook groups and download draft terms from the internet, which is
hardly an ideal outcome. It is much
better if parties are properly represented and are able to properly put their
terms through experienced, independent lawyers acting for them. Clause 10U(1) should not be enacted in its
current form.
22.
Counsellors
Under the Act,
counsellors need to be accredited. The
process of accreditation in turn imposes a burden on the Minister (and
taxpayer) which is not imposed on Ministers (and taxpayers) interstate. Counsellors in Queensland for example, must
comply with objective criteria:
-
an
ANZICA member;
-
a
psychiatrist who is a member of the relevant college;
-
a
psychologist who is a member of the Australian Psychological Society; or
-
a
social worker who is a member of the Australian Association of Social Workers;
and
and have the experience,
skills or k knowledge appropriate to prepare the report: s.19 Surrogacy Act 2010 (Qld).
This definition is also:
-
more
open than that under regulation 4 and therefore more flexible;
-
makes
it easier for interstate practitioners to provide counselling (which may be
easier for the parties if the surrogate lives interstate, for example).
23.
Disputes
In my view, there are a
number of ways of minimising disputes between intended parents and surrogates:
1.
The
most effective is to ensure that there is rigorous screening at commencement
through counselling, independent legal advice by experienced practitioners and
the involvement of the Ethics Committee of the relevant IVF clinic. This is by far the most effective
manner. A criticism that I have of the
current Act and of the Bill is that the pre-signing counsellor is merely to
certify the suitability of the surrogacy arrangement. There is no provision about what is to happen
with the report or that there is even a report.
So as to ensure that there is transparency, there should be a mandated
requirement in legislation that there is an affidavit from that counsellor for
the court. The judicial officer will then
be fully informed about what the issues were.
That step (of requiring an affidavit) will mean that each of the lawyers
will need to have a copy of that report (without the legislation needing to say
so) as will the IVF clinic. Each
significant player in the case, namely the lawyers and the IVF Ethics Committee
will be wanting to minimise risk and reading that report. My practice is that my clients do not sign the surrogacy arrangement until
the report is provided, and any risk issues in the report have first been
addressed.
2.
The
terms of the surrogacy arrangement ought to be as crystal clear as
possible. This doesn’t need to be
mandated in legislation.
3.
One
of the issues that assists from time to time is the liability of the intended
parents to pay the surrogate’s costs.
Agreements should specify – as a matter of good practice – to pay all
the reasonable costs, as say defined in s.11 of the Queensland Act (or
whichever legislation applies). To
ensure there is not an open ended cheque book, I now specify maximum
amounts. I attach the schedule from a
recent agreement to illustrate the point.
4.
There
should be encouragement between the parties to attend counselling with that
initial counsellor at intervals during the surrogacy process. The pioneers of surrogacy in Australia, the
Canberra Fertility Clinic, adopted a practice of having counselling at 3 months
and 6 months gestation and 3 months post birth.
This ought not to be mandatory but it would be a wise practice standard
to adopt to minimise conflict. I
encourage my clients to take part.
5.
For
ongoing difficulties between the parties, I found that the post birth
assessment process in Queensland and New South Wales is very useful. Its prime purpose is to educate the Court
that the proposed orders are in the best interests of the child. This assessment ordinarily involves a home
visit (although it is not mandatory to do so) and the reports are very
thorough. I have found that when there
has been conflict between parties except of the most extreme nature, the
process of that assessment can greatly reduce that conflict and let them move
forward in a workable manner.
As surrogacy becomes
more common, the expertise of practitioners working in this area will become
greater. They will therefore be able to
assist intended parents and surrogates and their partners better and by that
process likely reduce the conflict between the parties on those occasions when
it arises.
24.
State
Register/meeting demand
It has now been almost 3
years since legislation was passed to have a State register of surrogates. The aim of the register was a noble one –
namely to try and make more surrogates available. I understand that it has not been taken
up. I can understand the reticence of
prospective surrogates putting their names on a register run by a government
and the reluctance of intended parents to contact the government to find out
the details of surrogates.
Every day there are in
existence now Facebook groups and other social media whereby prospective
surrogates and intended parents can find each other. In my view, there will continue to be a
shortage of surrogates (and therefore a demand for overseas surrogacy) until in
Australia we grasp the nettle and are prepared to properly compensate
surrogates for their efforts. Until that
occurs, we will continue to have a shortage.
If we were prepared to
compensate surrogates for their pain and risk at a fixed rate, say of $10,000,
plus their various expenses, it is likely that more women in South Australia
will be prepared to be surrogates, and fewer journeys will occur overseas.
Allowance could also be
made by compensation if certain events were to occur, e.g:
·
cost
of reproductive organs;
·
caesarean
section;
·
carrying
twins;
·
invasive
procedure, e.g. D and C, ectopic pregnancy.
In my view the broad
framework of the Queensland and New South Wales Acts could accommodate such
payments with some careful drafting.
In my view, the State
register, regrettably, has not been effective and is unlikely to be
effective.
25.
The
effect of Bernieres and Dhopal
In my view, it is
extremely worrying that the effect of the Full Court of the Family Court
decision in Bernieres and Dhopal is
that there are hundreds, if not thousands of children in Australia whose legal
relationship with their parents is uncertain.
The Court in that case
did not take into account that if Mr and Mrs Bernieres were not the parents,
who then were. Nor did the Court draw
the logical conclusion that if the Indian surrogate and her husband were not
the parents in India and the Australian couple were not the parents in
Australia, then the child in question had no parents.
Be that as it may, the
Court has drawn a challenge to how to protect the children.
In my view, South
Australia should legislate to protect these children. South Australia should not wait until there
is resolution at COAG. The House of
Representatives Inquiry into surrogacy was conducted in 2016. It recommended urgent action by COAG. Nothing has been done. There has been no substantive response by the
Federal Government to that report.
In the absence of action
by the Federal Government, some action must be taken to protect the children of
South Australian parents. There ought to
be the ability, in a more flexible manner than that proposed under the Bill,
for those in South Australia to have their parentage recognised. If it is possible for a United Kingdom Court
to make a parental order where there has been an overseas surrogacy arrangement
as commonly happens (with the requirement of making full disclosure to the
Court about the overseas surrogacy contract that was entered into along with
the payment that was made to the surrogate under that contract) then it is
possible to do so one would think in South Australia.
The Court in Bernieres and Dhopal has thrown down the
challenge to the States that it is the States’ responsibility due to section
60HB of the Family Law Act to
regulate surrogacy.
The only legislation changes anywhere to surrogacy laws since the
Inquiry were the commendable changes to South Australian law last year.
I note that the issue
dealt with by the Court in 2015 (at trial) and 2017 (on appeal) was identified
by the Family Law Council in its report of 2013 – but nothing was done
Federally.
Currently, there are
five exceptions to Bernieres and Dhopal:
1.
The
parties lived overseas, underwent surrogacy overseas and were recognised as
parents overseas: Carlton and Bissett [2013]
FamCA 143.
2.
The
parties live in South Australia, obtain approval from the Minister and then
obtain an order from the Youth Court recognising them as the parents. As we know, the approval of the Minister
cannot be obtained because the State Framework
for Altruistic Surrogacy and the relevant regulations have not been
made. Nevertheless, this approach of
potentially obtaining an order from the court is unique Australia-wide and
worthy of protecting children.
3.
An
order has been made which is capable of being registered with the Family Court
under section 70G of the Family Law Act. Registration can typically only be made concerning
orders made in New Zealand or 48 of the 51 US jurisdictions. There is some technicality in having the
orders made and a discretion on the part of the Court as to public policy
issues as to commercial surrogacy. Registration
has occurred on three occasions in Re
Halvard [2016], Re Grosvenor [2017]
and Sigley and Sigley [2018].
4.
An
overseas adoption order has been made transferring parentage by way of a
surrogacy process. These orders are
commonly made in New Zealand. Similarly,
these orders are made by way of second parent adoption orders, post birth, in
various jurisdictions in the United States.
5.
Registration
of the overseas child order under the 1996
Hague Child Protection Convention.
The Convention applies to overseas countries even if that country is not
a party to the Convention. Many
Australians have undertaken surrogacy in Canada, but Canada is not a party. The use of the Convention is untested in this
context. The Convention is part of the
domestic law by virtue of the Family Law
Act.
Quite simply, the
exceptions to Bernieres and Dhopal
are technical, at times costly, difficult and do not apply across the board for
the benefit of children.
There is, regrettably,
no consistent definition of who is a parent or child under Federal legislation,
for example:
·
S.11
Australian Passport Act (parental
responsibility);
·
S.12,
16 Australian Citizenship Act 2007;
·
Family Law Act 1975;
·
S.29(2)(c)
Child Support (Assessment) Act 1989;
·
S.10
Superannuation Industry (Supervision) Act
1993.
If the Youth Court had
power to declare that a child born overseas through an overseas surrogacy
arrangement is a child of a person, then that would almost certainly clarify
the parent-child legal relationship for all purposes under Australian law. It would go a long way to protecting that
child’s legal rights consistent with the Convention
on the Rights of the Child. Whatever
benefits there might be for the parents, the benefits for the child in having
the legal relationship regularised are immensurable.
Australia is a party to
the International Convention on the
Rights of the Child. As the High
Court held in Teoh’s case, there is a legitimate
expectation, absent legislation or directive that Australian decision
makers will comply with the terms of the Convention. In Article 3 in all actions concerning
children whether undertaken by Courts of law or legislative bodies, the best
interests of the child shall be a primary consideration. Furthermore, under Article 3:
“States’ parties undertake to ensure the child such
protection and care as is necessary for his or her well-being, taking into
account the rights and duties of his or her parents, legal guardians or other
individuals legally responsible for him or her, and, to this end, shall take
all appropriate legislative and administrative measures.”
Under Article 4:
“States’
parties shall undertake all appropriate legislative, administrative, and other
measures for the implementation of the rights recognized in the present
Convention.”
Under Article 5:
“States’
parties shall respect the responsibilities, rights and duties of parents or,
where applicable, the members of the extended family or community as provided
for by local custom, legal guardians or other persons legally responsible for
the child, to provide, in a manner consistent with the evolving capacities of
the child, appropriate direction and guidance in the exercise by the child of
the rights recognized in the present Convention.”
Under Article 7:
“The
child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and, as far as possible,
the right to know and be cared for by his or her parents.”
Under Article 8:
“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.”
In Re X (A child) (Surrogacy: Time
Limit) [2014] EWHC 3135 (Fam) there is a considered discussion about Article
8 of the Convention in quoting another judge at [32]:
“The
concept of identity includes the legal recognition of relationships between
children and parents.”
President Munby refers
at [54] to the equivalent of section 10HB, section 54 of the UK legislation:
“Section
54 goes to the most fundamental aspects of status and, transcending even
status, the very identity of the child as a human being: who he is and who his
parents are. It is central to his being, whether as an individual or as a
matter of his family. As Ms Isaacs
correctly puts it, this case is fundamentally about Xs identity and his
relationship with the commissioning parent.
Fundamental as these matters must be to commissioning parents they are,
if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s
powerful expression, 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 Xs 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 Thorpe LJ
in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, 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… and the Court considering an application for a parental
order is required to treat the child’s welfare throughout his life as
paramount.” [Comment: I note that
throughout his life is a requirement of the Queensland legislation. It also ought be a requirement of the South
Australian legislation so the long term impact on the child can be properly
considered, not only by the court, but by all parties during the surrogacy
process].
Although the European Convention on Human Rights does
not apply in Australia, I draw your attention to the decision of the European
Court of Human Rights in Menneson v.
France and Labassee v. France [2014]. France does not approve of surrogacy. The cases concerned the refusal to grant
legal recognition in France to parent-child relationships that had been legally
established in the United States between children born as a result of surrogacy
treatment and the couples who had had the treatment.
It was considered to be
a violation of Article 8 of the European
Convention concerning the children’s right to respect for their private
life.
The Court observed that
the French authorities, despite being aware that the children had been
identified in the United States as the children of Mr and Mrs Menneson and Mr
and Mrs Labassee, had nevertheless denied them that status under French
law. It considered that this
contradiction undermined the children’s identity within French society. The Court further noted the case law
completely precluded the establishment of a legal relationship between children
born as a result of – lawful – surrogacy treatment abroad and their biological
father. This overstepped the wide margin
of appreciation left to States in the sphere of decisions relating to
surrogacy.
The applicants’ claims
were dismissed at final instance by France’s highest Court, the Court of
Cassation in 2011 on the grounds that recording the entries in the register
would give effect to a surrogacy agreement that was null and void on public
policy grounds under the French Civil Code.
The Court found that there had been no infringement of the right to
respect for private and family life since their name on the entries had not
deprived the children of the maternal and paternal legal relationship
recognised by the laws of California and Minnesota and had not prevented them
from living in France with Mr and Mrs Menneson and Mr and Mrs Labassee.
Relying on Article 8,
the applicants complained of the fact that, to the detriment of the children’s
best interests, they were unable to obtain recognition in France of
parent/child relationships that had been legally established abroad.
The Court noted that a
wide margin of appreciation had to be left to States in making decisions
relating to surrogacy, in view of the difficult, ethical issues involved and
the lack of consensus in these matters in Europe. Nevertheless, that margin of appreciation was
narrow when it came to parentage, which involved a key aspect of individuals’
identity. The Court also had to
ascertain whether fair balance had been struck between the interests of the
State and those of the individuals directly concerned, with particular
reference to the fundamental principle whenever children were involved, their
best interests must prevail. Although
the obstacles facing Mr and Mrs Menneson and the twins were not insurmountable,
the Court noted that they were in a state of legal uncertainty: the French
authorities, although aware that the twins had been identified in another
country as the children of Mr and Mrs Menneson, had nevertheless denied them
that status under French law. The Court
considered that this contradiction undermined the children’s identity within
French society. The Court further
observed that they could only inherit from Mr and Mrs Menneson as legatees, which
meant that their inheritance rights would be less favourable; the Court
regarded this as depriving them of a further component of their identity in
relation to their parentage. The effects
of the refusal to recognise a parent/child relationship in French law between
children born following surrogacy treatment abroad and the couples who had the
treatment were not confined to the couples, but also extended to the
children. Their right to respect for
their private life, which implied that everyone should be able to establish the
essence of his or her identity, including his or her parentage, was
significantly affected. There was
therefore a serious issue as to the compatibility of the situation with the
children’s best interests, which must guide any decision concerning them.
In the Court’s view this
analysis took on a special dimension when, as in the present case, one of the
parents was also the child’s biological father.
Given the importance of biological parentage as a component of each
individual’s identity, it could not be said to be in the best interests of the
child to deprive him or her of a legal tie of this nature when the biological
reality of that tie was established and the child and the parent concerned
sought its full recognition.
I note the similarities
between Article 8 of the European Convention and Article 8 of the International
Convention on the Rights of the Child, as recognised in Re X.
Australian children,
including South Australian children, are in the same boat as the Menneson and
Labassee children before the decision in those cases – their legal status
remains uncertain.
26.
Further
assistance
I am happy to assist in
any way with you in your deliberations if called upon.
Yours faithfully
Stephen
Page
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