In May I had the pleasure of presenting to the Fertility Nurses of Australasia conference on the Gold Coast, giving a surrogacy update. Here is my paper:
FERTILITY NURSES OF AUSTRALASIA CONFERENCE
BROADBEACH, 26 MAY 2018
MY DANCE CARD IS FULL – SURROGACY UPDATE
By
Stephen Page[1]
Why
my dance card is full?
The simple fact remains that in part
due to our acceptance or non-acceptance of surrogacy and because of our legal
settings both as to egg donation and surrogacy, there is a shortage of egg
donors across the country and a shortage of surrogates across the country. Before the Victorians jump and down and say
well there isn’t a shortage of egg donors in Victoria, the simple fact of the
matter is that the reports I continue to receive from clients is that if they
can’t get an egg donor through their networks, their clinic may tell them that
there are no donors available, they may be unwilling to go to one of the
clinics that have egg banks and instead they go overseas. In March 2016, I attended a clinic in Cape
Town where the clinic was seeing 3-5 Australian heterosexual couples seeking
egg donation every business day.
I am sure it is no surprise to you,
but Aussies have been all over the world for egg donation, including Argentina[2],
US, Canada, Greece and Spain, as well as countries where surrogacy occurs, such
as the Ukraine, Russia and Georgia.
Of course, one of the issues about
Australians going overseas for egg donation is that the child may never know
who the donor was. In the case of South
Africa, the current legal settings are that children cannot find out who the
donor was. One can have great confidence
that clinics there will keep good records as to the identity of the donor. Currently the South African Law Reform
Commission is looking at a proposal to, in essence, copy what we have done in
Australia and has occurred in the UK amongst others - so that the child will be
able to find out the name of the donor.
How long this may take and whether it is retrospective, I don’t know,
but there is a clear move to change the settings there.
The numbers of babies born to
Australian citizens outside Australia via surrogacy each year have always been
consistently greater than the number of babies born through domestic surrogacy.
I am told that there is currently a domestic surrogacy boom happening, but we
shall see. Most recent figures that I
have seen for the number of babies born domestically through surrogacy is about
40 babies a year.
The most reliable figures I have seen
for international surrogacy has typically been about 250 babies born overseas
each year who become Australian citizens.
That number is understated because:
·
there will always be
people who tell fibs to the Department of Immigration, typically heterosexual
couples who say they went overseas and had a child, and
·
visa holders, such as
permanent residents, who undertake surrogacy overseas. Their children will not be counted in the
citizenship figures.
Nevertheless, in the 2016/2017 year
the number of citizenships granted to children born through international
surrogacy dropped to 142. Time will tell
whether that figure is an anomaly or if it’s the beginning of a trend.
The other feature about Australia is
that we are a migrant country.
Australians are world travellers.
Just under 50% of our population are migrants or the children of
migrants[3]. Therefore, there are Australians who have
migrated from overseas and wish to undertake surrogacy in their home
country.
Example
Prakesh and Indira are
migrants to Australia from India. They are Indian citizens. India does not
allow dual citizenship. Therefore if
they became Australian citizens, they would have to cease being Indian
citizens. They are permanent residents
of Australia. Prakesh and Indira wish
to become parents through surrogacy.
They seek to undertake surrogacy in India. They comply with relevant Australian law
and successfully complete their journey.
If they were an Australian couple, they would not be able to undertake
surrogacy in India (due to Indian regulations banning surrogacy for citizens
of countries other than India).
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In the last two years, clients of
mine have considered, attempted or completed surrogacy in the following
countries:
America
·
Brazil;
·
Canada;
·
United
States.
Europe
·
Georgia;
·
Greece;
·
Russia;
·
UK
(UK residents);
·
Ukraine.
Asia
·
Bangladesh;
·
Cambodia
(where surrogacy has been banned since October 2016);
·
China
(where surrogacy is banned);
·
India
(where surrogacy is only available to Indian citizens);
·
Iran;
·
Laos/Thailand
(where by an under the counter method surrogacy is happening in Laos, but
controlled from Thailand);
·
Nepal
(where surrogacy has been banned since August 2016);
·
Sri
Lanka.
Africa
·
Ghana;
·
Kenya;
·
Nigeria;
·
South
Africa.
Oceania
- Australia;
- New Zealand.
Light at the end of the tunnel
I want to emphasise that we are lucky
to be practising in this area. It is an
absolute honour and privilege to help people become parents. Whilst there have been some bad surrogacy
journeys, surrogacy well-handled is an absolutely magical journey where magic
dust spreads in every direction. Luckily
for me some of it happens to fall on me as a bystander.
I tell my clients that it is a
certainty that they will become parents through surrogacy. Of course there are four circumstances in
which that won’t occur:
1. They
die before the child is born;
2. They
don’t have enough patience to persevere if things turn tough;
3. They
don’t have enough money to fund the journey;
4. If
they are in need of a donor, that they are not prepared to use the assistance
of a donor.
On top of whatever other IVF costs
they might have incurred previously, from continually asking our client, the
overall cost of surrogacy is:
- In Australia - $30,000 to $70,000 (the main variant being the cost of IVF);
- Canada – A$80,000 to A$120,000 but ball park figure I would budget for A$120,000;
- USA – A$145,000 to A$300,000.[4]
To put some meat on the bones, the
kind of costs that are incurred by intended parents in Australia for the
surrogate we have seen have been in the order of usually $9,000 to
$15,000. In one case they were as high
as $30,000. That was because the clients
had not obtained disability insurance.
The surrogate had to cease work and our clients had to pay for her loss
of wages.
The kind of expenses that a surrogate
in Canada would be paid are typically A$20,000 – A$22,000.
A surrogate in the United States is
paid a remarkably diverse fee from as low as US$20,000 to US$60,000 plus.
There is an assumption that if
Australians are undertaking surrogacy in Canada, that because surrogacy in
Canada is altruistic that therefore as a matter of course they are compliant
with the law of Australia. That
assumption is not right. They might be compliant with the law of
Australia, but it is quite possible that if proper checks haven’t been taken
that the couple may have breached local laws in Australia. Usually these things are easily fixed before
signing of documents.
Similarly, there is an assumption
that if a couple are going to the US for surrogacy that they must be
undertaking commercial surrogacy. As I
set out below, that assumption in light of a court case in 2016 may not be
accurate either. I cannot emphasise enough how important it is for those
contemplating surrogacy overseas to get expert legal advice about their
surrogacy journey before they
commence.
Overview of surrogacy in Australia
I am sure that everyone listening today
or reading this paper will be aware that surrogacy in Australia is allowed if
it is altruistic. Each of the States and
the ACT have laws in place to ban commercial surrogacy.
The Northern Territory still has no
laws about surrogacy. One might think
therefore that there is a free for all in the Northern Territory. In reality, residents of the Territory will
go interstate or more likely overseas.
The only IVF clinic in the NT, Repromed, if it decided to provide
surrogacy services, would be limited in doing so to only altruistic surrogacy
because of the NHMRC Ethical Guidelines. The absence of laws in the NT means that
parentage cannot be transferred from the surrogate to the intended
parents. Repromed therefore has taken
the decision not to provide any surrogacy services in the NT.
A reminder – surrogacy
is not a medical process. IVF, or more
correctly ART, is a medical process.
Surrogacy is a legal process to transfer the parentage of a child from
a surrogate (and if she has a partner or spouse from them) to the intended
parent or parents.
|
A recap on history
Just to take you back through some
recent history, about 13 years ago then ALP Senator Stephen Conroy, from
Victoria, and his wife Paula Benson were unable to access surrogacy in
Victoria. She was unable to carry a
child. Instead they travelled to Sydney
to undertake surrogacy. The story was
taken up by the Sydney Morning Herald
[5]which
then prompted the then Federal Attorney-General Philip Ruddock to poke the
States to ensure that there were adequate surrogacy laws in place. A consensus was developed through SCAG, the
Standing Committee of Attorneys General, that there would be reforms to allow
altruistic surrogacy to occur, but that commercial surrogacy would be banned.
Before these changes occurred,
surrogacy on an informal basis was able to occur in New South Wales. Since 2004 the ACT allowed altruistic
surrogacy to occur under its Parentage
Act.
There was then a veritable gold rush
while each of the States held their own inquiry and passed laws to enable
altruistic surrogacy:
- Assisted Reproductive Treatment Act 2008 (Vic);
- Surrogacy Act 2008 (WA);
- Surrogacy Act 2010 (Qld);
- Surrogacy Act 2010 (NSW);
- amendments to the Family Relationships Act 1975 (SA) in 2011;
- Surrogacy Act 2012 (TAS).
Regrettably, we don’t have a uniform
model of regulation in Australia.
Each of the States thinks pretty well
that what they have legislated is great and wonderful and marvellous. If only that were the case.
Whilst in broad terms each of the
States and the ACT have legislated for altruistic surrogacy and a banning of
commercial surrogacy, there are great variants in the law which add cost and
complexity to the journey for any intended parents. They can make that journey either a lawful
one or a criminal one.
Example
Matthew and Mark are a
couple who want to be parents. They
lived in Queensland. Their long term
friend Mary, who lived in New South Wales, offered to be a traditional
surrogate. The three parties entered into a Queensland surrogacy
arrangement. Although the then New
South Wales Attorney-General John Hatzistergos said that New South Wales
liked the Queensland model and would copy the Queensland Surrogacy Act, New South Wales did so but with changes and additions!
The result? When the surrogacy arrangement was drafted,
two clerks of my office had to read the relevant expenses provisions of the
New South Wales and Queensland Acts side by side to determine therefore what
the differences were. If we didn’t
identify those differences properly, then the parties would have entered into
a commercial surrogacy arrangement by accident, and therefore have committed
offences in either or both Queensland and New South Wales – and it is likely
that each of the lawyers by acting for them would also have been committing
offences in either or both places.
The conclusion? Although drafted differently, the expenses
provisions of both Acts were identical!
When the matter came
before the Childrens Court at Queensland, the Judge agonised about how he was
able to make an order concerning a child born interstate. What may have been a short appearance
became a long appearance, but nevertheless orders were made. The orders were then transmitted to the New
South Wales Registrar of Births, Deaths and Marriages. New South Wales legislation specifically
allows for the recognition of interstate parentage orders, such as the order
my clients had obtained.
As it was the first
order of its kind sought to be registered in New South Wales, it took –
unbelievably and ironically – nine months for the parents’ details to be
altered on the birth register so that my clients were recognised as the
parents and the surrogate was no longer recognised as a parent.
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Differences in the model of regulation
There are essentially two separate
models of regulation:
·
The agreement model;
·
The regulator model.
The agreement model
Everywhere in Australia if a
surrogacy arrangement is entered into, it is not legally binding, except
perhaps if the surrogate doesn’t hand over the child and consent to the order,
in which case she may have to repay money spent on her expenses, or on the
other hand if the intended parents don’t pay then they might be obliged to do
so. Whilst some laws are clear about
that, such as the Surrogacy Act of
Queensland, other places are not.
Under the agreement model, certain
things are done before a surrogacy arrangement is entered into, namely
counselling and legal advice. Depending
on the model, post birth there may be counselling, a report or reports or none
at all before going to court and seeking an order. This model varies dramatically to the
regulator model.
The regulator model
This exists in Victoria and Western
Australia. In each of those States
approval must be gained by the relevant State regulator – in Victoria the
Patient Review Panel, and in Western Australian the Reproductive Technology
Council – before the surrogacy arrangement can proceed. There is built-in delay with each of those
models, but particularly in Western Australia.
These figures from Western Australia
are telling. Western Australia has just
under 10% of Australia’s population at 2.4 million people of a population of 25
million. In recent years on average one
surrogacy arrangement a year has been approved by the Reproductive Technology
Council. If the WA population is
reflective of the national whole, then approximately 25 surrogacy arrangements
a year in most years[6]
are entered into by WA residents.
Twenty-four of those are overseas. A regulatory regime that regulates 1
in 25 birth smacks of the episode of Yes, Minister, when bureaucrat Sir
Humphrey Appleby lauds the Minister, Jim Hacker about a particular hospital for
having the best statistics in the country- but the hospital has no patients.
Oral agreements
As I once heard a Family Court Judge
say:
“An oral agreement is worth the paper it’s
written on.”
Nevertheless, both the ACT and
Victoria allow oral agreements. It seems
extraordinary that one must need regulatory approval in Victoria for a
surrogacy arrangement, but the arrangement need not be put in writing.
So what is commercial surrogacy?
We
know that commercial surrogacy is something that is not altruistic surrogacy.
One might think that there is a common definition of what is commercial
surrogacy and what is altruistic surrogacy.
As Oscar Wilde said “to assume is
to make an ass out of you and me”.
To make that assumption is to make a fundamental mistake. The devil is in the detail. There are widely differing definitions of
what is commercial and what is not.
Going overseas comparison
Committing offences by going overseas?
Jurisdiction
|
Human tissue
|
Payment of donor’s expenses above reasonable
|
Surrogacy
|
Commonwealth
|
No
|
No
|
No
|
Qld
|
Yes
|
Yes
|
Yes-commercial
|
NSW
|
Yes
|
Yes
|
Yes-commercial
|
ACT
|
Yes
|
Yes
|
Yes-commercial
|
Victoria
|
No
|
No
|
No
|
Tasmania
|
No
|
No
|
No
|
South
Australia
|
Yes
|
Yes
|
Yes-
if contract, even if altruistic
|
WA
|
Yes
|
Yes
|
Yes-commercial
|
NT
|
Yes
|
No
|
No
|
Queensland
Surrogacy Act 2010 (Qld)
Surrogacy is regulated under the Surrogacy Act 2010 (Qld).
The offences are:
·
To advertise: section 55;
·
To enter into or to offer
to enter into a commercial surrogacy arrangement: section 56;
·
To give or receive
consideration, i.e. make or receive payment under a commercial surrogacy
arrangement: section 57;
·
To provide technical
professional medical services to a surrogate of a commercial surrogacy arrangement
before she becomes pregnant: section 58.
Going
overseas
The offences are committed either for
acts done in Queensland or acts done outside Queensland if the person was
ordinarily resident in Queensland: section 54.
Queensland has a long arm provision: section 12 of the Criminal Code 1899 (Qld). What is a commercial surrogacy arrangement is
defined in section 10 but the essence is that the surrogacy arrangement involves
payments that is more than the reimbursement of the birth mother’s surrogacy
costs. They in turn are defined under
section 11:
“(1) A
"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated with any of the following matters —
"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated with any of the following matters —
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother
and the birth mother’s
spouse
(if any) being a party to a surrogacy
arrangement or proceedings in relation to a parentage
order.
(2) Without limiting subsection (1),
the following amounts are a birth mother’s
surrogacy costs —
(a) a reasonable medical cost
for the birth mother
associated with any of the matters mentioned in subsection (1);
Example: a cost incurred before conception
if the birth mother
consults a medical practitioner to find out if she is capable of carrying a
pregnancy before undergoing a fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost,
for a child
born as a result of the surrogacy
arrangement;
(c) a premium payable for health, disability or life insurance
that would not have been obtained by the birth mother
if the surrogacy
arrangement had not been entered
The key to section 11 is that the
cost must be reasonable. It is very hard to define what is reasonable
because there have been no prosecutions to date. The great shopping list of expenses under
11(2) is just that, a list of examples.
To work out whether something is a cost that is within section 11, it is
necessary to go to section 11(1).
Example
Annabelle is the
proposed surrogate for James and Charlotte.
Annabelle lived in Queensland with her husband David. James and Charlotte, the intended parents,
lived in New South Wales. Annabelle
ran her own business, being a dog walker.
She did so wearing inline skates.
During the course of
the surrogacy, she wanted, as she had had with her previous pregnancies, both
acupuncture and massages.
I acted for
Annabelle. The solicitor for James and
Charlotte initially was opposed to massages and acupuncture because these
would render the surrogacy arrangement a commercial surrogacy
arrangement. They were not listed in
section 11(2) and the equivalent provision in the New South Wales Act
(remembering that the NSW and Qld Acts are very similar on this issue). I said that they were reasonable costs
often incurred by pregnant women, did not render the surrogacy arrangement to
be commercial and should occur. The
solicitor relented.
Annabelle wanted to
engage a locum for her business during the course of the pregnancy. The
solicitor for the intended parents was opposed to this because it wasn’t
within section 11(2) and the equivalent provision of New South Wales, and
taking time off under section 11(2)(f) entailed:
“The value of the birth mother’s actual
lost earnings because of leave taken –
(i)
for
a period of not more than 2 years during which a birth happened or was
expected to happen; or
(ii)
for
any other period during the pregnancy when the birth mother was unable to
work on medical grounds.”
Aside from dealing with
(ii) I noted that my client was self-employed and therefore was outside the
ordinary scope of (f). In any event, I
was not going to have my client, pregnant with someone else’s child, being
hauled by a bunch of dogs up and down hills whilst on roller skates. She was not profiting by employing a locum,
but preserving her business.
The other solicitor
relented.
The surrogacy proceeded
and ultimately orders were made in the Supreme Court of New South Wales
without drama.
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Example 2
One Saturday morning:
The sun was shining. The
flowers were blooming. Birds were chirping. Bees were going about their
business. Stewart was digging in the garden and his wife Rosalie was happily
singing in the house when into this paradise, came three plain clothes
detectives walking down the driveway.
Australia’s anti-money laundering agency, Austrac, had detected a
payment by the couple to an overseas IVF clinic. The agency referred the matter to the
Australian Federal Police, who quickly found out when the couple had left
Australia and returned to Australia.
The Australian Federal Police referred the matter to local police on
suspicion that the couple had engaged in child trafficking or international
commercial surrogacy.
The police then
interviewed the couple. Subsequently,
I spoke with the police. Given the
facts of the case, the police decided to take no further action.
The myth that police
will never prosecute for surrogacy offences is clearly just that – a myth.
The police officer told
me that there is great agitation in Canberra about Australians engaging in
commercial surrogacy overseas. Whilst
the actions by Austrac were unprecedented, if they have happened once, they
will happen again.
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The common view has been that those
who go to the United States must, by definition, be engaged in commercial
surrogacy. Re Halvard demonstrates that that assumption may be false.
The intended parents lived in the
United States. The husband was an
Australian citizen and the wife a US citizen.
They underwent surrogacy in the US.
Prior to the birth of the child an order was made, the effect of which
was that they were the parents under the law in the US where the child was
born.
The child was born and obtained
Australian citizenship. The couple sought to register the US surrogacy order in
Australia, the effect of which would be that the couple would for all purposes
be the parents of the child under
Australian law. They were
successful. This is the first time that
any surrogacy order was able to be registered.
A previous attempt had been made in
2013 in Carlton and Bissett[9],
which involved a South African man who obtained a pre-birth order naming him as
the father under the Childrens Act
prior to his twins being born. He had
migrated to Australia and then sought that he be recognised as the parent. He ultimately succeeded under a comity
argument but his first argument was that the South African order be registered
in Australia because it was an overseas
child order, a phrase that appears in the Family Law Act. An order can only
be registered if it is an overseas child order.
The court in that case held that the South African court order was an
overseas child order, but it was unable to be registered because South Africa
was not a prescribed overseas jurisdiction, as South Africa was not named in
the list contained in the Family Law Regulations. It is still not named. 48 of the 51 US jurisdictions are named.
Justice Forrest was of the view that the
pre-birth order was of its nature similar to a post birth order made in New
South Wales or Queensland.
In the exercise of discretion as to
whether or not the court should register the US order, the solicitor for the
parents said that the surrogacy arrangement was commercial within the meaning
of both the Queensland and New South Wales Surrogacy
Acts, but nevertheless it should be registered, in the best interests of
the child. His Honour was of the view
that the solicitor was mistaken and that it was not commercial surrogacy, but
altruistic and that although generous, the costs for the surrogate were still
reasonable within the meaning of the NSW and Queensland Acts. As it was altruistic, it was therefore able
to be registered. If it had been
commercial it may not have been able to be registered. The court ordered that the
names of the solicitors who acted for the applicants not be published.
New South Wales
Surrogacy Act 2010 (NSW)
There are two offences in New South
Wales:
1. To
advertise (except there it is an altruistic surrogacy arrangement and no money
has been spent on the advertisement);
2. Entering
into or offering to enter into a commercial surrogacy arrangement.
There is no specific offence for
assisting someone, but if you are aware that someone is entering into a
proposed commercial surrogacy arrangement and you assist them, you may be a
principal offender by virtue of general provisions of criminal law. If in doubt, get legal advice first!
New South Wales has two alternate
tests about extending jurisdiction:
1. Section
10C of the Crimes Act 1900 (NSW);
2. Section
11(2) Surrogacy Act.
The offence is committed by a person
ordinarily resident or domiciled in New South Wales, wherever the surrogacy
arrangement might be: section 11(2) Surrogacy
Act.
Most States have a long arm law. This is the law that extends the jurisdiction
of the State outside the State for criminal offences, i.e. like the long arm of
the law. In New South Wales it is section 10C of the Crimes Act which provides that if the circumstances for an offence
arise and part of the act occurs in
New South Wales that constitutes the offence or the effect of the act occurs in New South Wales that constitutes the
offence, then the offence occurs in New South Wales.
There is limitation as to how section
10C will apply to surrogacy. In the
Family Court in 2011 a judge delivered on the one day four judgments relating
to two couples from Queensland and two couples from New South Wales who
underwent surrogacy in Thailand. Justice
Watts referred the two Queensland couples to Queensland authorities for
consideration of prosecution[10]. His Honour did not refer the New South Wales
couples. His Honour found that they fell
within the Assisted Reproductive
Technology Act, as they had signed their surrogacy agreements before the Surrogacy Act commenced. His Honour considered section 10C of the Crimes Act but considered that it was
unlikely that they had committed any offence[11].
Intended parents from New South Wales
can, in light of Re Halvard,
undertake surrogacy overseas lawfully if they engage in great care – and get
expert legal advice first!
What is a commercial surrogacy in New
South Wales is very similar to that in Queensland, namely a surrogacy
arrangement where the payment is greater than the birth mother’s surrogacy
costs. These are defined in section 7 of
the Surrogacy Act 2010:
“(1) For the purposes of this Act, a
"birth mother's surrogacy costs" are the birth mother's reasonable costs associated with any of the following matters:
"birth mother's surrogacy costs" are the birth mother's reasonable costs associated with any of the following matters:
(a) becoming or trying to
become pregnant,
(b) a pregnancy or a birth,
(c) entering into and giving
effect to a surrogacy
arrangement.
(2) The reasonable costs
associated with becoming or trying to become pregnant include any reasonable
medical, travel or accommodation costs associated with becoming or trying to
become pregnant.
(3) The reasonable costs associated with a pregnancy or birth
include the following:
(a) any reasonable medical costs
associated with the pregnancy or birth (both pre-natal and post-natal),
(b) any reasonable travel or
accommodation costs associated with the pregnancy or birth,
(c) any premium paid for
health, disability or life insurance that would not have been obtained by the birth mother,
had the surrogacy
arrangement not been entered into,
(d) any reasonable costs,
including reasonable medical costs,
incurred in respect of a child (being the child of the surrogacy
arrangement),
(e) the cost of reimbursing the birth mother
for a loss of earnings as a result of unpaid leave taken by her, but only for
the following periods:
(i) a period of not more
than 2 months during which the birth happened or was expected to happen,
(ii) any other period during
the pregnancy when the birth mother
was unable to work on medical grounds related to pregnancy or birth.
(4) The reasonable costs associated with entering into and giving
effect to a surrogacy
arrangement include the following:
(a) the reasonable costs
associated with the birth mother
and the birth mother's
partner (if any) receiving counselling in relation to the surrogacy
arrangement (whether before or after entry into the arrangement),
(b) the reasonable costs
associated with the birth mother
and the birth mother's
partner (if any) receiving legal advice in relation to the surrogacy
arrangement or a parentage
order relating to the surrogacy
arrangement,
(c) the reasonable costs
associated with the birth mother
and the birth mother's
partner (if any) being a party to proceedings in relation to such a parentage
order, including reasonable travel and accommodation costs.
(5) A cost is reasonable only if:
(a) the cost is actually
incurred, and
(b) the amount of the cost
can be verified by receipts or other documentation.
(6) In this section:
"medical costs" does not include any costs that are recoverable under Medicare or any health insurance or other scheme.”
"medical costs" does not include any costs that are recoverable under Medicare or any health insurance or other scheme.”
The comments in Re Halvard apply to this legislation as they do to the Queensland
Act.
Australian Capital Territory
Parentage Act 2004 (ACT)
·
The offences are entering
into a commercial substitute parenting agreement: section 41;
·
Procuring a commercial
substitute parenting agreement: section 42.
The offence is committed if it occurs
overseas when the party is ordinarily resident in the ACT: section 45.
The ACT has a long arm provision
similar to section 10C of the Crimes Act
1900 (NSW): section 64 of the Criminal
Code 2002 (ACT).
The ACT does not adequately define what
are the expenses that can be paid to the surrogate? In broad terms the definition is similar to
that in Queensland or New South Wales, although arguably narrower, as it refers
to expenses connected with the pregnancy or the birth or care of a child born
as a result of that pregnancy: section 40 Parentage
Act 2004.
The ACT doesn’t have as many barriers
as other places because of its small size.
It is possible for someone who lives in the ACT to move to New South
Wales during the surrogacy journey so that the flexibility under the New South
Wales legislation can apply – provided that the surrogacy arrangement at
commencement is a New South Wales surrogacy arrangement.
Victoria
Assisted
Reproductive Treatment Act 2008 (Vic)
Assisted
Reproductive Treatment Regulations 2009 (Vic)
One offence in Victoria is that a surrogate mother must not receive any
material benefit or advantage as a result of a surrogacy arrangement: section
44(1) Assisted Reproductive Treatment Act
2008.
The offence is not committed if only
prescribed costs are paid: section 44(2).
Under regulation 10 the following costs
are prescribed:
(a)
Any reasonable medical
expenses associated with the pregnancy or birth that are not recoverable under
Medicare, health insurance or another scheme;
(b)
Any legal advice obtained
for the purposes of the legal consequences of entering into the arrangement[12];
(c)
Travel costs relating to
the pregnancy or birth.
Being
a surrogate in Victoria necessarily means that the surrogate will be out of pocket. One can instantly see the types of expenses
that are not included. The example of
Annabelle above, to pay acupuncture, massage or for a locum, would all not be
prescribed expenses- which means that all
the parties would be committing a criminal offence because they are deemed to
have engaged in commercial surrogacy.
It
is not an offence for Victorian residents to undertake surrogacy overseas.
Checklist of comparison between NSW and Victoria
To
illustrate the problem, I have set out below a comparison as to what expenses
can be paid between section 7 of the Surrogacy
Act 2010 (NSW) and section 44 of the ART
Act 2008 (Vic) and regulation 10 of the ART
Regulations 2009 (Vic).
Expense
|
NSW
|
VIC
|
Any reasonable medical costs associated
with the pregnancy or birth
|
Allowed: altruistic
|
Allowed: if they are not recoverable
under Medicare, health insurance or another scheme, otherwise criminal.
|
Travel costs
|
Allowable if reasonable.
|
Allowable.
|
Accommodation costs
|
Allowable
|
Not allowable – criminal.
|
Health insurance for the surrogate –
obtained for the surrogacy arrangement
|
Allowable.
|
Criminal.
|
Disability insurance obtained for the
surrogate because the surrogacy arrangement has been entered into
|
Allowable.
|
Criminal.
|
Life insurance obtained for the surrogate
– because the surrogacy arrangement has been entered into.
|
Allowable.
|
Criminal.
|
Reasonable costs including reasonable
medical costs incurred in respect of a child (being the child of the
surrogacy arrangement)
|
Allowable.
|
Criminal.
|
Reimbursing the surrogate for loss of
earnings due to the pregnancy – either 2 months or a greater period because
she is unable to work on medical grounds related to medical or birth
|
Allowable.
|
Criminal.
|
Implications counselling for a surrogate
provided on behalf of an IVF clinic about social and psychological
implications of entering into the arrangement
|
Allowable.
|
Allowable.
|
Counselling about relinquishment and the
relationship between the surrogate mother and the child once it is born.
|
Allowable.
|
Allowable.
|
Legal advice before entry into the
surrogacy arrangement.
|
Allowable.
|
Allowable.
|
Legal advice and representation after
entering into the surrogacy arrangement.
|
Allowable.
|
Criminal.
|
Travel and accommodation for going to
Court.
|
Allowable
|
Criminal.
|
Tasmania
Surrogacy Act 2012 (Tas)
Section 40 makes it an offence to enter
into or to offer to enter into a commercial surrogacy arrangement, with a fine
not exceeding 100 penalty units.
Like the Queensland or NSW Acts, section 8
defines what is a commercial surrogacy arrangement:
“A surrogacy
arrangement is a commercial
surrogacy arrangement if it provides for a person to receive a
payment, reward or other material benefit or advantage (other than the
reimbursement of the birth mother's surrogacy costs) for the person or another
person –
(a) agreeing to enter into, or
entering into, the surrogacy arrangement; or
(b) giving up a child born as a
result of the surrogacy arrangement to be raised by the intended parent or
intended parents; or
(c) consenting to the making of a
parentage order in relation to a child born as a result of the surrogacy
arrangement.”
What is a birth mother’s surrogacy
costs in section 9 is in essence the
same as section 11 of the Queensland Act:
“
(1) In this section –
legal cost includes
fees for obtaining legal advice and legal representation, court fees, and
registry fees associated with registration of a birth and transfer of
parentage;
medical cost means a
medical cost to the extent that it is not recoverable under Medicare or any
health insurance or other scheme.
(2) A birth mother's surrogacy costs are
the birth mother's reasonable costs associated with any of the following
matters in relation to a surrogacy arrangement to which the birth mother is a
party:
(a) becoming, or trying to become,
pregnant;
(b) a pregnancy or birth;
(c) the birth mother and the birth
mother's spouse, if any, being a party to the surrogacy arrangement or
proceedings in relation to the obtaining of a parentage order or a parentage
order that has been obtained.
(3)
Without limiting subsection (2) , the following amounts are a birth
mother's surrogacy costs in relation to a surrogacy arrangement to which the
birth mother is a party:
(a) a reasonable medical cost, for
the birth mother, associated with any of the matters mentioned in
subsection (2) ;
(b) a reasonable cost, including a
reasonable medical cost, for a child born as a result of the surrogacy
arrangement;
(c) a premium payable for health,
disability or life insurance that would not have been obtained by the birth
mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling
associated with any of the matters mentioned in subsection (2) , including
the cost of counselling, in relation to the surrogacy arrangement, obtained by
the birth mother or the birth mother's spouse, if any;
(e) a reasonable legal cost for the
birth mother and the birth mother's spouse, if any, relating to the surrogacy
arrangement, the obtaining of a parentage order or a parentage order that has
been obtained;
(f) the
value of the birth mother's actual lost earnings because of leave taken –
(i) for a period of not more than 2
months during which a birth happened or was expected to happen; or
(ii) for any other period during or
after the pregnancy when the birth mother was unable to work on medical grounds
associated with the pregnancy or the end of a pregnancy;
(g) travel and accommodation costs
associated with the surrogacy arrangement;
(h) another reasonable cost
associated with the surrogacy arrangement, the obtaining of a parentage order
or a parentage order that has been obtained.”
Commercial brokerage or advertising of
surrogacy arrangements is prohibited: s.41. When the Surrogacy Bill was passing through Parliament, there was an Upper
House inquiry. I gave evidence. I was critical of the drafting of section 41(as
it then stood) as I said it could be argued that section 41 prohibited
Tasmanians from undertaking surrogacy overseas. The Bill was amended in light
of my evidence to ensure that it is clear- Tasmanians do not commit an offence
by entering into an overseas commercial surrogacy arrangement.
South Australia
Family Relationships Act 1975 (SA)
Offences
1. Except
as authorised by or under the Family
Relationships Act 1975 or the State
Framework for Altruistic Surrogacy, a person who for valuable
consideration, negotiates, arranges or obtains the benefit of a surrogacy
contract on behalf of another: section 10H(1).
2. A
person who, for valuable consideration, induces another to enter into a
surrogacy contract.
The definition of surrogacy contract is in section 10F,
meaning:
“A contract under which –
(a)
A
person agrees –
(i)
to
become pregnant or seek to become pregnant; and
(ii)
to
surrender custody of, or rights in relation to, a child born as a result of the
pregnancy; or
(b)
A
person who is already pregnant agrees to surrender custody of, or rights in
relation to, a child born as a result of the pregnancy, but does not include a
contract that forms part of, or relates to, a recognised surrogacy agreement or
proposed recognised surrogacy agreement.”
A recognised surrogacy agreement is
defined in section 10F as meaning:
“A recognised surrogacy agreement under
section 10HA(2) and includes, for the purposes of Division 3 –
(a)
A
surrogacy agreement (however described) entered into in accordance with a
prescribed corresponding law of the Commonwealth, or of another State or
Territory; and
(b)
A
prescribed international surrogacy agreement.”
Prescribed
international surrogacy agreement is defined in
section 10F as meaning:
“(a) A surrogacy agreement (however described) under a law of another
country that is declared by the regulations to be a prescribed international
surrogacy agreement; or
(b) A surrogacy agreement (however
described) relating to surrogacy arrangement between commissioning parents
resident in this State and a person resident in another country and approved by
the Minister for the purposes of this paragraph.”
A recognised surrogacy agreement as set
out in section 10HA as to the requirements in South Australia which include the
agreements states that no valuable consideration is payable under, or in
respect of, the agreement, other than for expenses connected with or consisting
of –
“(A) A pregnancy (including any attempt to become pregnant) that is
the subject of the agreement; or
(B) The birth or care of a child born as a
result of that pregnancy; or
(C) Counselling or medical services provided
in connection with the agreement (including after the birth of a child); or
(D) Legal services provided in connection
with the agreement (including after the birth of a child); or
(DA) Any reasonable out of pocket expenses
incurred by the surrogate mother in respect to the agreement; or
(E) Any other matter prescribed by the
regulations for the purposes of this provision.
There
is no agreement that has been prescribed for section 10F and nor is there any
prescription for the purposes of section 10HA(2)(ix)(e).
There is a requirement that the
agreement states the commissioning parents will, in accordance with any
requirements in the State Framework for altruistic surrogacy, take reasonable
steps to ensure that the surrogate mother and her husband or domestic partner
(if any) are offered counselling (at no cost to the surrogate mother or her
husband or domestic partner) after the birth of a child to which the agreement
relates (including, to avoid doubt, a still-birth).”
In considering whether to make an
order, the Court has to take into account whether valuable consideration (other
than as is authorised under section 10HA(2)(b)(ix)) has been given or received
by either of the commissioning parents, or either of the child’s birth parents,
for or in consideration of –
“(i) the making of the order; or
(ii) the
handing over of the child to the commissioning parent; or
(iii) the making of any
arrangements with a view to the making of the order.”
When amendments were proposed to the Family Relationships Act in 2014 I was
quite critical of the then Act. It was
similar to that in Victoria, for example, where it was unclear as to whether
life insurance for the surrogate could be met.
The amendment introduced in 2015 allows: “Any reasonable out of pocket expenses incurred by the surrogate mother
in respect of the agreement” which is such a wide ranging term that could
well allow expenses as envisaged in Queensland, New South Wales or Tasmania, provided
that they are reasonable. The previous
problems with what a surrogate could be paid have been avoided.
South Australia has a long arm provision,
section 5G of the Criminal Law
Consolidation Act 1935 (SA).
Mr John Dawkins MLC, who has been the
driving force for change to surrogacy legislation in South Australia over many
years, said that when the current amendments were debated in 2014/2015, that
the advice he had received was that in theory an offence would be committed by
entering into a surrogacy arrangement overseas but in reality a prosecution was
almost impossible.
His solution was in effect to require
anyone who was going overseas, whether for altruistic or commercial surrogacy,
to obtain the permission of the relevant minister, who in turn would be guided
by the Family Relationship Regulations and
by the State Framework for Altruistic
Surrogacy. Those laws took effect in
July 2015. Now, almost 3 years later,
those relevant regulations do not exist and neither does the State Framework in
finalised form. It has been put to me
that South Australian ministers do not want to own an overseas surrogacy
problem and nor does the Minister concerned want to spend many hours
researching whether or not that particular surrogacy overseas is appropriate
for that particular intended parent or parents.
That arrangement has gone nowhere.
In my view, with care, and especially with extremely careful legal
advice, it is lawful for someone in South Australia to engage in surrogacy,
including commercial surrogacy, overseas – but there needs to be the most
careful legal advice on point.
A bill came before the last
Parliament to get rid of the requirements for the State Framework for Altruistic Surrogacy and overseas approval, and
to rejig the Family Relationships Act
to be along the lines of the Surrogacy
Act 2010 (NSW). That Bill died with
the last Parliament. There has been a
change of Government in South Australia so I don’t know whether the Bill will
be revived or indeed if a new bill of a different kind is put before
Parliament.
Western Australia
Surrogacy Act 2008
The offences
·
Making a surrogacy
arrangement that is for reward: section 8;
·
Reward for introducing
parties for a surrogacy arrangement: section 9;
·
Advertising: section 10;
·
Providing a service
connected with a surrogacy arrangement that is for reward: section 11.
It is therefore an offence in Western
Australia for a lawyer in Western Australia to give advice about a surrogacy
arrangement that is not strictly in compliance with WA law. Anyone contemplating undertaking surrogacy
overseas should not go to a WA lawyer for advice because the WA lawyer may be
committing an offence in providing advice.
A surrogacy arrangement that is for
reward is defined in section 6, being an arrangement which:
“(1) Provides for any person to receive any
payment or valuable consideration other than for reasonable expenses associated
with –
(a)
The
pregnancy or the birth; or
(b)
Any
assessment or expert advice in connection with the arrangement.
(2) Reasonable expenses associated with
achieving, or attempting to achieve, the pregnancy and reasonable expenses
associated with the pregnancy.
(3) An expense is a reasonable expense for
the purposes of subsection (1)(a) to the extent only that it is –
(a)
A
reasonable medical expense that is not recoverable under any health insurance
or other scheme; or
(b)
The
value of earnings foregone because of leave taken –
(i)
For
a period of not more than 2 months during which the birth occurs or is expected
to occur; or
(ii)
At
any other time for medical reasons arising during the pregnancy; or
(c)
A
reasonable expense of psychological counselling; or
(d)
A
premium payable for health, disability or life insurance that –
(i)
Would
not have been taken out of the surrogacy arrangement had it not been entered
into; and
(ii)
Provides
cover for a period during which an expense referred to in another paragraph of
this subsection is incurred or might be, or have been expected to be,
incurred.”
If
we go back to the example of Annabelle, to pay for a massage or acupuncture or
a locum for Annabelle in Western Australia would be a criminal offence. To pay for a reasonable medical cost for a
child born as a result of the surrogacy arrangement is a criminal offence,
unless it can be shown to be an expense associated with the birth. To pay for legal representation of the
surrogate post birth is a criminal offence.
WA is our largest State. One might have thought in Western Australia
that there would be allowance for travel and accommodation. To pay for travel
and accommodation of a surrogate in Western Australia is a criminal offence.
The common view that is held is that to
go overseas for surrogacy in Western Australia is lawful. The judgment in the Baby Gammy case of Farnell and Chambua [2016] FCWA 17,
makes plain that the long arm provision of Western Australian law - section 12
of the Criminal Code - extends to
surrogacy, so that someone who is going overseas and enters into a surrogacy
arrangement that is for reward may be committing a criminal offence.
Similarly, someone who is in Western
Australia and is looking to undertake surrogacy interstate (either as an
intended parent or surrogate) may by the same provisions be committing a
criminal offence.
Discrimination in ART
Following criticism at the United
Nations, on 1 August 2016, exemptions that were allowed under the Federal Sex Discrimination Act 1992 for State
laws which discriminated against LGBTI people in the provision of services,
employment, housing etc were removed (with the exception of Western Australia
where the exemption was removed on 1 August 2017).
Nevertheless, there appear to be
pockets of discrimination that apply in ART:
·
The Australian Government
is very generous in funding ART through our universal health scheme,
Medicare. It is not unknown that women
have had up to 36 IVF cycles partly funded by the taxpayer. For the taxpayer to provide a government
rebate, the couple must be considered to be infertile. The classic definition of infertility is that
of a heterosexual couple who are unable to conceive after trying consistently
through unprotected sexual intercourse over 1 year. A rebate will only be paid if the doctor is
of the view that the person is infertile.
Some doctors still follow that classical definition, which means that
single people and LGBTI couples may not be eligible for the rebate, costing
them thousands of dollars. Other doctors
consider those couples to be infertile.
Intended parents won’t know the outcome until they talk to the doctor.
Recently I saw online a discussion amongst intended parents about which
clinics/doctors did provide the rebates for gay intended fathers, and those
that did not.
·
There is an exemption for
surrogacy. The rebate won’t be provided
for surrogacy. There are differing
opinions about the regulations[13]. Some are of the view that the effect of the
regulations is that the rebate won’t be paid once a surrogacy arrangement has
been signed. Others are of the view that
if the doctor or clinic suspects that
there will be surrogacy (for example a gay couple walks into the room…) then
the rebate is not payable. The cost for a couple can be large- making the
difference per cycle from A$4,000-$5,000 out of pocket with the rebate, to up
to A$17,000 out of pocket without the rebate.
Table
showing discrimination in ART in Australia
Jurisdiction
|
Discrimination?[14]
|
Commonwealth
|
No: s.22 Sex Discrimination Act 1992 (Cth)
|
Qld
|
Yes. S.45A Anti-Discrimination Act 1991 (Qld)
allows discrimination on the basis of sexuality and relationship status.
However, this section appears not to be in force, in light of s.22 of the Sex Discrimination Act.
|
NSW
|
No
|
ACT
|
Yes. The surrogate and
her partner must be a couple: s.26(1)(b), (3)(d) and (e) Parentage Act 2004 (ACT) . There must be two birth parents:
s.26(2)(b), (3)(b),(c),(d) and (e) Parentage
Act 2004 (ACT).
|
Victoria
|
No
|
Tasmania
|
Each party to the
surrogacy arrangement at the time it was entered into was resident in
Tasmania: s.16(2)(g) Surrogacy Act 2012
(Tas), though this might be able to
be dispensed with: s.16(3).
|
South Australia
|
Surrogacy is not
available to single intended parents: s.9(1)(iva) Assisted Reproductive Treatment Act 1988 (SA), s.10HA(2a)(a)(ii),
(c), (d), (g)(ii), (h)(ii), (j),(5)(c)(i), (6)(c); s.10HB(2)(b),(4), (8)(b),
(9)(a),(b),(c), (10) Family
Relationships Act 1975 (SA). Registered persons, i.e., RTAC licensees (not
doctors) can decide not to treat on the basis of the person’s sexual orientation,
gender identity, marital status or religious beliefs: s.9(1)(ba); 9(1a) ART Act, reg. 6 Assisted Reproductive Treatment Regulations 2010 (SA). I am
unsure if this scheme complies with the Sex
Discrimination Act.
|
Western Australia
|
Surrogacy is not available
to single men or gay male couples. It is unclear if it is available to single
intersex or transgender people, or where one of the parties is intersex or
transgender: s.19 Surrogacy Act 2008
(WA); s.7(1)(b), 23(1)(iii) Human
Reproductive Technology Act 1991 (WA). This appears in breach of s.22 of
the Sex Discrimination Act. Another barrier in WA is that anonymous sperm,
egg or embryo donation is not available in WA for surrogacy because of a
requirement that the donor is a signatory to the surrogacy arrangement:
s.17(b)(iii) Surrogacy Act 2008 (WA). WA is currently
reviewing its ART and surrogacy laws.
|
NT
|
No discrimination in
ART. Surrogacy not available. Doctors must comply with SA licences.
|
HOUSE OF REPRESENTATIVES INQUIRY
In 2015/2016, a select committee of
the House of Representatives was reviewing the laws on surrogacy. It handed down its recommendations in 2016
just before the Federal election. No
action has been taken on its recommendations which included:
·
A national
non-discriminatory scheme of surrogacy laws.
·
Those laws to regulate
altruistic and ban commercial surrogacy.
·
To make it harder for
those undertaking surrogacy overseas in any jurisdiction which had requirements
less stringent than Australia. I note
that the only place which has requirements as stringent as Australia is New
Zealand. Therefore even Australians who
go to the US or Canada for surrogacy would find their journey considerably
longer and more expensive.
·
Questioning whether it
might be a good idea for any child born through surrogacy to have noted on
their birth certificate the name of the donor (and the donor’s partner) and
that of the surrogate and the surrogate’s partner. This was sought by donor conceived adults –
but it would seem that inadequate consideration was given to toddlers and
school aged children when their parents provide the birth certificate for
enrolment or indeed 15 year olds who might have to provide their birth
certificate on seeking employment.
Farnell and Chambua [2016] FCWA 17[15]
As I said above, this was the Baby
Gammy case in which the Court ultimately found that the child Pipah should
continue to live in Bunbury (a town a couple of hours south of Perth) with Mr
and Mrs Farnell and not live with her brother Gammy in Thailand who is being
cared for by the surrogate, Mrs Chambua.
If you want to read a case about how
not to do surrogacy, it is a good illustration.
Bernieres and Dhopal [2017] FamCAFC 180[16]
Mr and Mrs Bernieres lived in
Melbourne. They travelled to India for
surrogacy. Mr Bernieres was the genetic
father. An egg donor was the genetic
mother. The surrogacy went well. The child was born, obtained Australian
citizenship and returned home. Mr and
Mrs Bernieres then applied to the Family Court for an order that they have
parental responsibility for the child and that the child live with them. Each was easily obtained. They also sought an order declaring them to
be the parents.
The trial judge, Berman J in 2015
declined that order. He said that there
was a gap in the law of Victoria whereby the parenting presumptions about who
was a parent did not apply to overseas surrogacy. The surrogacy was, although legal,
non-compliant with the law of Victoria (which amongst other things required
that IVF be undertaken in a Victorian clinic).
Therefore, he refused to declare that they were the parents.
Mr and Mrs Bernieres appealed. A unanimous three member Full Court found
that they were not the parents, in essence for the reasons that the trial judge
had found.
The case has highlighted that under
Australian law there are different standards about who is a parent. The effect of Bernieres and Dhopal is to emphasise that different statutes have
different approaches about whether someone is or is not a parent. For example:
Who’s a parent?Law
|
Comment
|
Family Law Act 1975 |
For
people who went from Victoria overseas for surrogacy to contract based
jurisdictions such as India, Cambodia, Thailand, it is clear that they are
not parents under this legislation.
However, it is not so clear if they are from another State or went to
a jurisdiction where orders are made transferring parentage (such as the US
or Canada). It is untested and
uncertain.
|
Exceptions to Bernieres and Dhopal |
There
are five potential exceptions to Bernieres
and Dhopal:
1.
That the intended
parents lived overseas, complied with the law overseas and were recognised
overseas as the parents, in which case they would be recognised in Australia
as the parents: Carlton & Bissett [2013]
Fam CA 143[17].
2.
There was an adoption,
as part of the surrogacy process, in which case they will be recognised as a
parent under the Family Law Act:
section 4. This may lead to an absurd
outcome in which parent 1 (the genetic parent) might not, consistent with Bernieres and Dhopal be recognised as
a parent; but parent 2, by virtue of a second parent adoption, will be a
parent.
3.
The intended parents
come from South Australia and have obtained the permission of the Health
Minister under the Family Relationships
Act 1975 (SA).
4.
They have obtained an
order made in most parts of the United States and had it registered under
section 70G of the Family Law Act
with the Family Court of Australia.
5.
The overseas order is
recognised under the 1996 Hague Child
Protection Convention, and the judge is prepared to register despite
public policy exceptions.
|
Inheritance |
If
someone is not a parent for the purpose of family law, almost certainly they
won’t be a parent for the purposes of inheritance. Therefore properly drawn wills need to be
prepared to minimise risk.
|
Child protection |
Depending
on child protection statues, the intended parents may or may not be
recognised as parents.
|
1980 Hague Child Abduction Convention |
Absent
a court order, a person who is not a parent under family law does not have parental
responsibility and therefore does not have rights of custody under the
Convention.
|
Child support |
Seemingly
by way of insult, many people who would not be considered to be parents as a
result of Bernieres and Dhopal will
nevertheless be considered parents for the purposes of child support. In other words, they can’t be recognised as
parents in their relationship with their child except if the relationship
breaks down!
|
Superannuation |
Someone
may be a parent for the purposes of superannuation (retirement savings
account). The monies in these accounts
can be substantial, given Australia’s compulsory superannuation laws, so
proper planning is required.
|
Citizenship |
The
practical test to determine if someone is a parent for the purposes of
citizenship is if they are seen as a parent in the wider sense of the
community (although the case dealing with this excluded surrogacy, it has
been applied to surrogacy by the Department of Immigration, now the
Department of Home Affairs). The basis
of determining if someone is a parent is defined by genetics, OR whether
someone is a parent under the Family
Law Act OR if they are seen in the wider sense of the community as being
a parent. Typically the last means
that judgments obtained in the US or Canada identifying people as parents
will be sufficient to identify them as parents for surrogacy. See my discussion about the Australian
couple who went to Russia, below.
|
REGISTRATION CASES
There have now been three cases where
US surrogacy orders have been dealt with by the Family Court.
As discussed above.
The intended parents were an
Australian couple living in the United States who underwent surrogacy in North
Carolina. Justice Forrest registered the
judgment. I acted. His Honour stated:
“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 [if
it’s commercial surrogacy the discretion might be refused] expressed by me 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 circumstance of this couple and the 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 the 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 a biological child of at least one of the
applicants, the legal child of both of them, who is being loved and raised as
their child, who is 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.”
On
10 January 2018, Justice Forrest registered another US surrogacy order, this
time being for an Australian couple living in Los Angeles who had undertaken
surrogacy in Texas. Texas, as was
Tennessee and North Carolina, was a prescribed
overseas jurisdiction.
Following the approach that his
Honour took in Re Grosvenor, he
stated:
“This is another case where the parties and
the solicitor inform the Court that the surrogacy agreement entered into in the
USA was a “commercial” one.
I am, as I considered I was in the
earlier decision, clearly required to give consideration in the public policy
context within which my discretion is being exercised. That context 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 Sigley reside in the
USA and not one of those jurisdictions.
Whilst they currently intend to return to live in Australia at some time
in the future, it is not in one of the three jurisdictions just mentioned, but
rather the State of Victoria.
Nevertheless they have entered into a commercial surrogacy agreement and
they seek the registration in this Australian Court of the American Court Order
that gives them the parenting rights over their child. If they were “ordinarily resident” in
Queensland, New South Wales or the ACT, they would have, prima facie, committed
a criminal offence. However, as the
applicants’ solicitor points out in his submissions, Victoria allows intended
parents to enter into commercial surrogacy arrangements overseas and has not
sought to criminalise such behaviour.
Entry by the applicants into the “commercial” surrogacy agreement was
lawful in the USA, particularly in the State of Texas where it was done and the
Australian Government has not determined to criminalise entry by Australian
citizens or residents into commercial surrogacy agreements overseas as,
arguably, it could do.
Having given the matter my
consideration, I am satisfied for all the reasons as I said in my earlier
decision…that the commercial nature of the surrogacy agreement alone in this
particular case should not determine the exercise of discretion against the
applicant. Different from that case
though, in this case there are two children who are brought into life through
the surrogacy arrangements and both of those children are the biological
children of both of the applicants.
Their gestational “mother” was their carrier who assisted their
biological parents bring them into the world.
The two children are both Australian citizens now as well, with
legitimate expectations that the legal nature of their parent-child
relationship with both of their loving parents is appropriately recognised in
this country of theirs.”
The reference to legitimate expectations was a reference in my submissions that the
High Court of Australia had said in Teoh’s
case (1995)[21]
that although Australia was a party to the International
Convention on the Rights of the Child, the Convention was not part of Australia’s domestic law. Any child or
the parents of the child had a legitimate
expectation, subject to any statute or regulation, that an officer of the
Australian government would ensure that Australia would comply with its
international obligations. Article 8 of the Convention
refers to a child having a right to an identity. Jurisprudence from Europe in
dealing with this Article, and similar provisions in the European Convention on Human Rights identify that the child’s
family is that of the child and the intended parents.
His Honour then went on to say that
the applicants were the de jure i.e.
lawful, and biological parents of the children and “I have not been able to identify any reason why they should not be
entitled to the registration of that Texas Court’s Order in this Court so their
parent-child relationship with [the children] is recognised appropriately in this
country as they desire and for the children’s sake.”
This
is a case from North Queensland where surrogacy went wrong. There was in essence a fallout between the
surrogate and the intended parents. The
intended mother and the surrogate are third cousins.
After the child
was born, there was a Mexican standoff at the hospital, at which time the
surrogate proposed to adopt out the child.
The intended parents, worried that the surrogate would adopt out the
child, brought an urgent application in the Family Court for the child to live
with them. The parties were required to
take part in mediation. By interim
agreement, the child went into the care of the intended parents. Regrettably there wasn’t an agreement as to
ultimately what was to happen so the matter proceeded to trial. At trial, Justice Tree determined that there
should not be time between the child and the surrogate.
Curiously, Justice
Tree also found that under the particular wording of the relevant section of
the Status of Children Act 1978 (Qld)
that the intended father (who was genetically the father) was a parent of the
child, albeit one with no rights or responsibilities.
[On my office
checking the statute law following that decision, we discovered that no other
Australian State has an equivalent provision.
The Northern Territory has an equivalent provision only – but surrogacy
does not occur there as far as I am aware.]
Regrettably, that
wasn’t the end of the matter. The
surrogate then appealed on the point as to whether the intended father was a
parent. Recently when the matter reached
the appeal court, that court determined that there had been an error at trial
because there was no clear evidence as to whether or not the surrogate was
single at the time of implantation.
There was some suggestion at implantation that the surrogate and her
boyfriend might have been in a de facto relationship.
Accordingly, the
matter was remitted back to the trial level, preferably to be heard before
Justice Tree again to determine that issue.
We will see how that matter turns out.
Since the initial
decision in Lamb and Shaw, my firm
has had three parentage order applications before the Childrens Court of
Queensland where there has been a single surrogate. What approach should be followed? Is it one where the intended father is not a
parent, as has consistently been the view in Queensland and by virtue of
similar case law in New South Wales or is it one consistent with Lamb and Shaw that the intended father
to a single surrogate is a parent, albeit one with no rights and
responsibilities?
In all three cases
only the surrogate’s name was shown on the birth certificate. In those three cases the Childrens Court
judges have considered that either Lamb
and Shaw is not relevant to the exercise of the discretion or have
distinguished as not being applicable to those cases. It remains an uncertain
area of law and I await with interest what happens with any further
developments in that case.
GETTING
THE TECHNICAL ISSUES RIGHT
I can’t emphasise
enough how important it is to get the technical issues absolutely right and to
ensure that any lawyers who are handling the matter are really expert in their
field.
Last year my firm
had a surrogacy matter which we had taken over. The parties to the surrogacy
arrangement were the intended parents and her mother the surrogate. The three of them took part in
counselling. The surrogate and the
intended parents separately obtained independent legal advice. A surrogacy arrangement was signed up. The counselling recommended the counselling
arrangement. The counsellor noted that
the surrogate remained married to the intended mother’s father, but they had
separated many years before. This issue
was addressed in the report before the surrogacy arrangement was signed, but
nevertheless the surrogacy arrangement proceeded.
The surrogacy
arrangement was presented to the ethics committee of a large IVF clinic, which
approved treatment. Treatment
occurred. All went well. A child was conceived, born and handed
over.
In the meantime,
the long estranged husband of the surrogate was dying. As a result the three parties moved from New
South Wales to Queensland to care for him.
He died before the child was born. By moving to Queensland, the intended
parents needed to make application under the Queensland Surrogacy Act, not the NSW one. This was despite the fact that the
surrogacy arrangement was drafted under the NSW Act.
My firm was the
asked to take over the matter. To my
horror I saw that the surrogate’s husband was not a party to the surrogacy
arrangement. He had not received
counselling nor legal advice.
Solicitors in NSW
had independently advised both the intended parents and the surrogate before
the surrogacy arrangement was signed. It somehow escaped both of their
attention that the surrogate’s husband may have been a parent under the Status of Children Act 1996 (NSW) and
the Surrogacy Act 2010 (NSW).
There was no doubt
once we had a careful look at the Surrogacy
Act 2010 (NSW) that there had been non-compliance with that Act so far as the
surrogate’s husband was concerned. He
should have been a party. He should have
had legal advice. He should have had
counselling. He was well aware of the
surrogacy arrangement and in fact had written an email to my client saying that
he would pay for the IVF for it.
I was thankful
that he had written that email because it got us over the line, as our clients
were able to persuade the court to dispense with various requirements under the
Surrogacy Act 2010 (Qld). It was a tricky business - that could easily
have ended up with no parentage order being made and the child’s legal
parentage therefore left in limbo. All
caused by poor legal advice for both sides.
A plea
Please
oh please oh please call those who want to have the children the intended
parents. Quite simply they are the
people who intend to be the parents and parent the child. The phrase is used in some States, for
example New South Wales and Queensland.
It is also the international phrase.
Other phrases that are used for the purposes of legislation have to be
used for legislation but otherwise they stink.
To call someone a substitute parent, such as in the ACT is to say in
effect they are not real, they are a substitute. They’re fake.
To call someone a commissioning parent sounds like they have
commissioned a ship or a boat as though they had bought a child. I have had clients, rightfully, complain to
me that they have been called substitute or commissioning. I have not had any clients complain to me
that they were called intended and then ultimately the parents.
Non-disclosure
I have become
aware of a recent case where the intended parents, not satisfied with the
report from the counsellor, then went counsellor shopping, in order to obtain a
favourable report so that they could then undertake surrogacy. Ultimately they sought three
counsellors. They did not disclose to
any of the counsellors that they had seen previous counsellors for the purposes
of a report for surrogacy. Please urge
any of your counsellors that you work with to be alert to this issue. I suggest that in your checklist for any
ethics committee for your IVF clinic that you ask for a copy of all
counsellors’ reports obtained and ask the clients whether there are any other
reports, or whether they have been to any other counsellors for the purposes of
the surrogacy journey.
Some
egg donor issues
It is common for
Australians to go overseas for egg donation.
Under Commonwealth legislation and in every State other than WA (where
it is 10 years) the penalty for paying an egg donor under human cloning
legislation above reasonable expenses is a penalty of up to 15 years
imprisonment.
There is State
legislation in every State plus the ACT.
In the Northern Territory reliance is solely on the Commonwealth legislation. There are long arm laws in Queensland, New
South Wales, ACT, South Australia and Western Australia. The Northern Territory has long arm laws so
far as under its Criminal Code which are relevant to the provisions of the Transplantation and Anatomy Act.
Someone who goes
overseas for a commercial egg donor agreement may be in breach of the relevant
State or Territory human cloning legislation, State or Territory Transplantation and Anatomy Act/Human Tissue
Act, in light of the relevant long arm law.
A health
professional, such as a doctor or nurse who facilitates the arrangement may be
committing an offence as a principal.
For example in Queensland if you conspire with, aid and abet or counsel
or procure someone to commit the offence, then you are also a principal
offender, which means you too could be liable to a 15 year term of
imprisonment.
Quite simply, if
you have a patient who says that they are looking at undertaking egg donation
overseas, make sure they get good quality legal advice. If you tell them that it is illegal for them
to do that, that’s not accurate. It is proper for you to tell them that it may be illegal. It would be wise to write a file note and it
would be wise to refer them for legal advice.
Carefully handled,
they shouldn’t be committing a criminal offence. In the last few days I spoke to new clients
who told me that they have got overseas legal advice, entered into a surrogacy
arrangement which appears to be a criminal one in the law of their State and
entered into a commercial egg donor agreement, putting them at risk of
committing an offence under the Human
Tissue Act/Transplantation and Anatomy Act in their State with a penalty of
up to 6 months imprisonment, but worse, putting them at risk of committing an
offence under the human cloning legislation with a possible penalty of up to 15
years imprisonment in their State. Of
the couple, the husband was in shock. I
thought he was going to decompensate in front of me. All because they had not received any legal
advice from an expert in the field before they started their journey.
If they had
received that advice:
·
I am sure that they could
have become parents but:
·
They wouldn’t have
committed any offence.
Feedback
from clients
I believe that
Australian IVF clinics are amongst the best in the world. We have pioneered IVF. We have the lowest twinning rates in the
world. ANZARD and RTAC are wonderful
means of ensuring high quality.
Thankfully not as
often as I once heard, but still too often, I hear these things from my
clients:
1.
We underwent endless
rounds of IVF. Our doctor did not raise
with us the possibility of undertaking surrogacy. If only we had known that surrogacy was
available, we would have stopped the rollercoaster of IVF and undertaken
surrogacy sooner.
2.
The forms and procedures
of the IVF clinic seem to be designed for heterosexual couples and not for me
(a single woman)/us (a gay couple).
3.
It seems to be assumed
that a gay couple can have children. If
one can’t produce sperm then the other can.
We have had to rely upon a donor.
4.
It seems to be assumed
that a lesbian couple will never need surrogacy – but we did.
5.
The US/Canadian clinic
seems to be very focused on our needs and creating a baby. By contrast the doctor/clinic in Australia
seemed to be much more fixated on procedures and not on the human touch. It was altogether a colder experience doing
this process in Australia than it was going overseas. We would never go to an IVF clinic in
Australia again.
I would just
encourage you to be:
·
warm and welcoming to all
patients;
·
focus on the human side
and their journey;
·
be aware of the substance
and spirit of antidiscrimination legislation.
Yesterday I was
sad to read research about transgender parents in Australia.[23] This is research in which 16 and 26 transmen
who had experienced a gestational pregnancy consented to being
interviewed. The study is part of a
larger project titled “The constructions
and experiences of parenthood amongst transgender Australians”. There were both open and closed questions
asked of the respondents related to four areas: demographic data, such as age,
education, and sexual orientation; participants’ experiences of their gender
identity, such as the term or terms they used to describe their gender
identity, and steps they may have taken towards transitioning; parenting
information, such as number and age of children, care arrangements and
relationship with co-parents; and support systems.
As the researchers’
state:
“The participants in our study chose to
pursue pregnancy for a variety of reasons.
Some participants had cisgender female partners whose fertility was
affected by medical issues, as Sam (32) describes:
(My partner’s)
endometriosis was really severe…when we started talking about a family I just
knew it wasn’t going to be possible for her (to get pregnant) so I decided that
I’d do it. It wasn’t an altogether happy
decision but I knew it was the right one for us and I feel, actually, very
grateful that I could do that for us.
For other participants, being able
to have a child that was biologically related to them was positioned as
important and valuable: “It just seemed like a huge privilege to be able to
have a child that shared my DNA”.
The authors’
state:
“It has been well established that transmen
face significant difficulties when access care and support for the reproductive
health and wellbeing, and assisted fertility is no exception…as 18 of the 25
participants in this study were partnered with cisgender women at the time of
conceiving children, they would not be able to conceive their children without
accessing some form of external support, such as pursuing formal or informal
assisted fertility, including the acquisition and insemination of donor sperm,
and, in some cases, in vitro fertilisation.
For many participants, accessing
sperm was the first step toward conceiving their child…[there is then a
recounting of those who obtained sperm donation at home]. However, experiences of assisted fertility
were very different for those participants who chose to use formal fertility
services. Many described it as a
“nightmare process” that none were able to see through to completion.
We were rejected from multiple
clinics due to “reasons unknown”. “We
had a range of appointments and each time the discussion centred almost
completely on my genital identity…everyone just seemed so uncomfortable seeing
us.” (Justin, 30)
Other participants echoed this account,
describing “embarrassing” and “awkward” appointments followed by “cancelling
our follow-ups”. Trent (36) stated:
“The doctor we saw was so awkward with us,
kept misgendering me and repeatedly asked why my (cisgender) partner wasn’t the
one to have the baby.” For these participants dealing with negative
experiences with fertility service providers was “the first in many
pregnancy-related rejects and disappointments”. (Noel, 36). Whilst
transpeople are protected legally in Australia by HCPs (New South Wales
Government, 1977) these protections are not necessarily borne out in their
actual experiences. No participant in
this study who attempted to access a fertility clinic was actually granted
treatment. This type of rejection and
discrimination is reported to be pervasive in the trans community and has a
very significant impact on mental health and wellbeing…as such, like many in
the broader LGBTQI community, transmen turn to informal networks and methods,
indicated in the above accounts of using known donors and at-home insemination,
to assist them in achieving their goal to conceive.”
Stephen Page
23 April 2018
[1] Stephen
Page is a partner of Harrington Family Lawyers, Brisbane. He was admitted as a solicitor in 1987 and
has been a Queensland Law Society Accredited Family Law Specialist since
1996. Stephen is a Fellow of the
International Academy of Family Lawyers including being a member of its
Parentage/Surrogacy and LGBT Committees.
Stephen is the only Australian Fellow of the American Academy of
Adoption and Assisted Reproduction Attorneys.
Stephen is one of three international representatives on the ART
Committee of the American Bar Association.
He is a member of the Fertility Society of Australia. He has written and presented around the world
concerning fertility law issues, most recently in Sydney and before that,
Nashville.
[3] As of the 2011 census,
26% of Australian residents were born overseas, 8.9% reported that both their
parents were born overseas, and a further 11% reported that one parent was born
overseas; a total of 45.9% of the population: https://www.homeaffairs.gov.au/ReportsandPublications/Documents/research/migrants-contemporary-australia.pdf
seen on 21 May 2018. As of the 2016, 28.5% of Australian residents were born
overseas: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/3412.0Main%20Features32015-16?opendocument&tabname=Summary&prodno=3412.0&issue=2015-16&num=&view= seen on 21 May 2018.
[4] The sources are from
continually asking my clients, and reviewing retainer agreements for lawyers,
IVF clinics, surrogacy and egg donor agencies, as well as surrogacy
arrangements, gestational carrier and egg donor agreements.
[7] Every case is
different. The laws in this area can be finely nuanced. Expert legal advice
should be obtained by intended parents looking at going overseas for ART or
surrogacy- before they sign anything or
make any payment.
[8] http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2016/1051.html
seen on 21 May
2018.
[9] www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/143.html
seen on 21 May 2018.
[10] Dudley and Chedi [2011]
FamCA 502 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/502.html; Findlay and Punyawong [2011] FamCA 503 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/503.html
both seen 21 May 2018.
[11] Hubert and Juntasa [2011] FamCA 504 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/502.html
; Johnson and Chompunut [2011] FamCA
505 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/505.html
both seen 21 May 2018.
[13] Item 2.37.7 of the Health Insurance (General Medical Services
Table) Regulations 2017 (Cth): “Items 13200 to 13221
do not apply to a service provided in relation to a patient’s pregnancy, or
intended pregnancy, that is, at the time of the service, the subject of an
agreement, or arrangement, under which the patient makes provision for transfer
to another person of the guardianship of, or custodial rights to, a child born
as a result of the pregnancy.”
[15] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/FCWA/2016/17.html
seen on 21 May 2018.
[16] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/180.html
seen on 21 May 2018.
[17] A case involving a man who was a citizen of, lived in, underwent
surrogacy in and obtained an order from a court in South Africa- before he and
the children migrated to Australia, so that he could be with the man he loved,
also a South African.
[21] Minister of State for
Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183
CLR 273 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1995/20.html
.
[22] www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/769.html
seen on 21 May 2018.
[23] Rosie
Charter, Jane M. Usher, Janette Perz & Kerry Robinson (2018): The
transgender parent: Experiences and constructions of pregnancy and parenthood
for transgender men in Australia, International Journal of Transgenderism, DOI:
10.1080/15532739.2017.1399496, viewable at https://doi.org/10.1080/15532739.2017.1399496.
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