In January, I presented at the Equality Project conference at Melbourne Town Hall. I was amazed at the number of attendees!
My presentation was about the ten barriers to becoming parents through surrogacy. Here is my paper:
My presentation was about the ten barriers to becoming parents through surrogacy. Here is my paper:
Steeplechase for would be parents:
The ten barriers to becoming parents through
surrogacy
EQUALITY PROJECT CONFERENCE
12 January 2018
Stephen Page[1]
I
acknowledge the traditional owners of the land upon which we meet today, the Wurundjeri,
Boonwurrung, Taungurong, Dja Wurrung and the Wathaurong people who make up the
Kulin Nation.
There
are four ways in which LGBTIQ people can become parents:
1.
Sex
If
a man and woman have sexual intercourse resulting in the birth of the child,
each of them will be the lawful parents of their child, subject to any order as
to adoption or surrogacy.
2.
Co-parenting/sperm
donation
There
are barriers here for LGBTIQ people, which I will talk about shortly.
3.
Adoption
Adoption laws no longer
discriminate against LGBTIQ people, except in the Northern Territory which
continues to discriminate.
4.
Surrogacy
There are ample barriers making it
considerably harder and more expensive for LGBTIQ people to become parents
through surrogacy, and I will talk about those shortly.
Co-parenting/Sperm Donation
When
women want to become pregnant through IVF or at home and don’t engage in sex,
it is axiomatic that they need a sperm donor.
If
the woman is single and the sperm donor is a known donor then, despite State
and Territory laws that say that she is the sole parent and he is not, a Family
Court decision from 2013 means that he may well be the parent, even if she
thought that he was never going to be the parent.
Unless
single women are prepared to be in a co-parenting relationship with their sperm
donor, they should instead access donor sperm which is anonymous (to all
concerned and to the child at least until the child turns 18 when the child can
find out where they came from) from an IVF clinic. The woman should not in those circumstances
engage a known donor.
If
the woman wants to proceed nevertheless, to minimise risk it is recommended
that the man and woman undertake counselling with an experienced fertility
counsellor, such as an ANZICA[2]
member. Furthermore, they should enter
into a written, properly drafted sperm donor agreement. It is doubtful whether the sperm donor
agreement is enforceable. Indeed a
decision of a Federal Circuit Court judge a few years ago, just a kilometre
away from where we are, means that the sperm donor agreement was
disregarded. Nevertheless, a sperm donor
agreement sets out the intentions of the parties in black and white. The process of having such an agreement in
writing, where the terms are precise and unambiguous in itself helps reduce
risk.
It
is common for lesbian couples to have known sperm donors. It is common for those donors to be gay and
to have a partner. The law as it stands
would mean that both women are the lawful parents of the child and the man or
men are not. This has only come about
relatively recently. There are children
who have been born where the birth mother is named on the birth certificate as
the mother and the sperm donor named as the father. There have been four Court cases in New South
Wales and Queensland where the man’s name has been removed from the birth
register so that the birth mother’s partner can be named on the birth register
as a parent of the child.
Unlike
a good number of States in the United States, our law has not kept up with the
times in recognising the child can have up to three parents.
In
Ontario, with little fuss, it is possible for a child to have up to four
parents recorded on the birth register.
The same should occur in Australia to reflect the reality for these
children.
There
have been terrible Court cases in Australia between the lesbian couple and the
donor or the donor and his partner. To
some extent, with appropriate legal changes these cases should have been
avoided. Under the current law, the
donor is not a parent nor is his partner, but each may have the ability to seek
orders under the Family Law Act. In one case – from Melbourne – a gay man
donated his sperm to a lesbian couple.
The man thought he was going to become the father. The couple were of the view that he was only
the donor. The matter was bitterly
fought about the child, Patrick.
Ultimately the Court found that the man was not a parent. Nevertheless it was in the best interests of
the child to spend time with him. The
mother did not accept the outcome and as I understand it committed suicide.
Co-parenting
arrangements are fraught with danger.
They are nevertheless reasonably common particularly within the LGBTIQ
community. There is currently a review
being undertaken by the Federal Government through the Australian Law Reform
Commission of the Family Law Act and
family law system. Consideration of the
proper regulation of recognition of co-parenting relationships should form part
of that review.
If
more than two people are recognised as parents, that will have a flow-on effect
under both Commonwealth and State and Territory laws, such as to do with
parental responsibility (under the Family
Law Act and the Australian Passports
Act ), inheritance and child support amongst others.
Barriers to Family Formation
There
are barriers within our laws and systems that make it harder or more expensive
for LGBTIQ people to become parents.
The First Barrier: Medical or Social Infertility
Medicare
provides rebates for IVF. Services are
only available from Medicare if it is seen that the patient is infertile. Who is infertile is a controversial
topic. The classic definition of
infertility, according to the World Health Organization is that it is “a disease of the reproductive system
defined by the failure to achieve a clinical pregnancy after 12 months or more
of regular unprotected sexual intercourse”.
The
definition has, not surprisingly, been criticised for being discriminatory
towards LGBTIQ people. In 2016, the WHO considered
altering its definition so that by the commencement of 2017 infertility would
in essence be anyone undertaking assisted reproductive treatment. Therefore it would be
non-discriminatory. That change hasn’t
yet happened.
Medicare’s
position is that it leaves the definition of infertility up to doctors so they
can decide whether it is appropriate to treat (and therefore claim a Medicare
rebate).
The
problem with that approach is that some doctors are of the view that there is a
difference between medical infertility and social infertility. A lesbian who, for example, could conceive by
having sex with a man would under that definition be considered to be socially
infertile, not medically infertile and therefore not entitled to the rebate.
At
a time when the Sex Discrimination Act
makes plain that there ought not to be any discrimination against LGBTIQ people
and the provision of services, there ought to be a definition of infertility to
the effect that anyone who needs assisted reproductive treatment is infertile.
Other
doctors take the latter view. The
problem for patients is that they don’t know, after they have been referred by
their GP to a particular specialist, whether or not they will be able to claim
the rebate. The cost difference can be
in the thousands.
The Second Barrier: no Medicare for surrogacy
The
legal basis that Medicare rebates are paid is under the Health Insurance (General Medical Services Table) Regulations 2017
(Cth). One couldn’t imagine a more
obscure piece of regulation, but item 2.37.7 in referring to payment of the
rebate for assisted reproductive treatment services states that they:
“…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.”
In
other words, if there is a surrogacy arrangement then no rebate is payable. It
seems extraordinary that stories of IVF treatment of up to 36 cycles for
heterosexual couples can be willingly paid for by the taxpayer but one IVF
treatment cycle for a gay couple, for example, cannot be. Not having the rebate can add many thousands
of dollars to the bill and make surrogacy impossible for some. Those who are desperate enough to have
children will look at other options, such as co-parenting which are arguably
riskier both for them and the child – and the taxpayer.
There
is a difference of opinion as to what the exclusion means. Some lawyers are of the view that the
exclusion only applies if a signed surrogacy arrangement is in existence (in
those States where a signed arrangement is required) such as New South Wales
and Queensland, whereas others are of the view that the exclusion applies as
soon as the doctor or clinic suspects that the person or couple is seeking to
engage in surrogacy. Two men walk into
the room…
The Third Barrier: Discrimination in ART law, including surrogacy
One
might think that now that equal marriage laws are in place that discrimination
would have no say in assisted reproductive treatment and surrogacy. This is far from the truth, particularly for
surrogacy. Australia is the country that
invented three rail gauges as its means of transport:
- Standard – in New South Wales of 4 foot 8½ inches;
- Wide gauge in Victoria of 5 foot 3 inches;
- Queensland, Western Australia and Tasmania navigates at 3 foot 6 inches; and
- Lucky South Australia had all three.
We
have done the same with surrogacy.
Around the nation by discrimination:
·
The Sex Discrimination Act 1984 (Cth) has finally prevented the
provision of discrimination on the basis of sexuality or relationship status
and yet:
o
Queensland still has on
its books section 45A Anti-Discrimination
Act 1991 (Qld) – which allows
discrimination in ART on the basis of relationship status or sexuality;
o
NSW does not have
discrimination;
o
ACT does not actively
discriminate, but single people need not apply for surrogacy. Both the intended parents (who in the ACT are
called substitute parents) must be a couple as must the surrogate and partner;
o
Victoria does not have
discrimination;
o
Tasmania does not
actively discriminate – but anyone seeking to undertake surrogacy in
Tasmania must ensure that all parties
live in Tasmania at the time of signing the surrogacy arrangement – although
they can obtain dispensation from a magistrate.
That’s at the end of the process which may be 18 months to 2 years away
– something which has a wing and a prayer about it;
o
South Australia in March
last year removed discrimination against same sex couples, but insisted that
singles cannot seek surrogacy. South
Australia also insisted that licence holders be able to be registered objectors
on a name and shame file who can refuse to provide treatment based on matters
of their conscience to same sex couples, but it would appear the South
Australian Parliament did not properly realise the effect of those laws –
because the only people who can be registered objectors are the four IVF
clinics themselves (none of whom I anticipate would discriminate), not
individual doctors.
o
Western Australia
continues to insist, in apparent breach of the Sex Discrimination Act, that single men and gay couples not be
parents through surrogacy. They need not
apply.
o
The Northern Territory
has no laws about surrogacy. The only
IVF clinic in the Northern Territory operates under South Australian rules and
it has decided that it will not provide surrogacy services in the Northern
Territory because a Court order can’t be made there to transfer parentage.
The
Northern Territory from that point of view is a microcosm of the national
problem in that if you live in the NT you will go interstate or more likely
overseas to become parents through surrogacy.
In other words, the inadequate legal setting in the NT is driving people
overseas.
Fourth Barrier: Where can you undertake treatment?
You
may think that wherever you live in Australia you can undertake IVF anywhere
within Australia for the purposes of surrogacy.
Quite simply you are wrong. Only
Queensland, New South Wales and Tasmania give you that freedom. That freedom is pretty limited within
Australia because the State based rules in Victoria, South Australia and
Western Australia (and the lack of laws in the Northern Territory) means that
if you live in Queensland, New South Wales or Tasmania, you won’t be going to
those other States for treatment.
If
you live in Victoria you must have part of the IVF undertaken in Victoria. Likewise in the ACT, South Australia and
Western Australia.
Why
can’t someone who lives in Perth undertake IVF in New South Wales, for example?
Fifth Barrier: Interstate rules are a repeat of 19th
Century rail gauges
The
interstate rules with surrogacy at times make me want to pull my hair out. Considerable cost, time, worry and sometimes
delay occur by having intended parents and the surrogate live in different
States. The House of Representatives
Committee in 2016 called for national non-discriminatory laws on surrogacy – but
nothing has been done since then. Each
of the States think that they have invented a perfect model. They haven’t - because each of the models is
focused on that State alone and not on a national model. Some State systems, such as Queensland and
New South Wales are more flexible (whilst protecting the human rights of all
involved) than others (such as Western Australia). Quite simply we as a nation can do better and
ought to have done so years ago.
Sixth Barrier: Finding an egg donor
Unless
you have a friend or family member who is an egg donor, there are real
problems. A couple of clinics have egg
banks. Depending on your State rules
these may not be available to you. Under
Commonwealth and State laws, egg donors must be altruistic. Otherwise intended parents risk committing an
offence punishable by up to 15 years imprisonment.
What’s
the upshot? Intended parents go overseas
because they can’t find egg donors.
Australians have gone all over the world – all the usual places that
have I’ve talked about for surrogacy, but also Argentina, Spain, Greece and
South Africa as well as of course the US, Ukraine and Canada. In 2016 I visited a clinic in South Africa
which were seeing 3-5 Australian couples per day.
There
have been media reports of intended parents being bullied and blackmailed by
would-be donors or their partners – because there is such a scarcity of donors
in Australia.
We
ought to compensate donors for being donors and thereby encourage more women to
come forward. There ought to be
Government regulation capping the amount, such as say $5,000. We want to protect the human rights of donors
and ensure that they are not exploited.
When Australians go overseas for egg donation often the rules in place overseas
say that the child will not find out who the donor was. We are failing those children who surely have
a right to know their genetic origin.
Seventh Barrier: A lack of surrogates
Across
Australia (with the exception of the Northern Territory) it is an offence to
engage in commercial surrogacy. What is
commercial surrogacy varies greatly. One
might think that the surrogates should have their life insurance paid. After all they are putting their lives at
risk. That’s lawful in Queensland and
New South Wales, for example but a criminal offence here in Victoria.
Again,
because we don’t allow the payment of compensation to surrogates there is a
severe shortage of surrogates in Australia.
This results in Australians going overseas, spending between $80,000 and
$300,000 per child on their surrogacy journey.
The same journey in Australia would cost $30,000 to $70,000. We are a smart enough country that we could
put in place a regime to protect the human rights of all involved, with
judicial oversight, and pay compensation
to surrogates capped at a regulated rate, say $10,000, so that more surrogates
are available and the temptation of Australians to go overseas is greatly
reduced? In doing so, we reduce the
costs for intended parents, give greater legal certainty to the children, and
reduce the risks for all concerned from surrogacy in developing countries.
Eighth Barrier: Criminal mockery
For
those who have to go overseas they have to be concerned whether they are
committing offences inadvertently under Australian human tissue laws or human cloning laws (to do with egg donors) or
surrogacy laws. Victoria, Tasmania and
the Northern Territory make plain that you can go overseas for surrogacy
without committing an offence under surrogacy legislation (or the lack of it in
the NT). If you hail from Queensland,
New South Wales, ACT – it is clear that you may be committing an offence in
undertaking commercial surrogacy overseas.
You may be committing an offence also if you come from Western Australia
or South Australia. In South Australia
you may have to seek the permission of the South Australian Health Minister –
who has to be guided by two documents in making a decision about giving
approval to your request – neither of which document exists!
Then
Chief Justice Diana Bryant of the Family Court and current Chief Justice John
Pascoe now of the
Family Court called in 2014 for the removal of these criminal laws which they
said weren’t being enforced, were not in effect a barrier to people going
overseas and instead made a mockery of the law.
Nothing has been done since then – except in South Australia where it
seems to be harder to go overseas now than it was then.
Ninth Barrier- Enough Money
Of
course, as I said, you need to have enough money to undertake surrogacy
overseas. Currently it costs $30,000 to
$70,000 to undertake surrogacy in Australia, ballpark A$120,000 to undertake
surrogacy in Canada and A$140,000 to A$300,000 in the United States. Many people simply can’t afford it.
The Final Barrier: Not being parents
Assuming
that you have gone all the way overseas to have children, the Family Court in
September last year said that a couple who had done so from Victoria to India
were not parents under the Family Law Act.
They may however be parents for other purposes, for example, citizenship. This
decision has caused consternation amongst many intended parents. The Federal Government was warned by the
Family Law Council in 2013 that this type of decision might happen – but
nothing has been done.
The
House of Representatives Committee reviewed surrogacy in 2016 and recommended
that only altruistic surrogacy be allowed in Australia and that it should be
harder for people to go overseas if the country has standards less stringent
than Australia’s. The only country in
the world that has standards that are as stringent as ours is New Zealand. If those recommendations of the House of
Representatives Committee are enacted, it won’t stop people going overseas for
surrogacy but unnecessarily just cause pain, more cost and delay.
Stephen Page
Harrington Family Lawyers
https://surrogacyandadoption.blogspot.com.au
facebook.com/Stephen.Page.Lawyer.Brisbane
Harrington Family Lawyers
https://surrogacyandadoption.blogspot.com.au
facebook.com/Stephen.Page.Lawyer.Brisbane
[1] Stephen Page is a
partner of Harrington Family Lawyers Brisbane.
He was admitted as a solicitor in 1987 and is a surrogacy and family
lawyer. He has written and presented
about family law and surrogacy issues around the world. He and his husband Mitchell were married in
2015.
[2] Australia and New
Zealand Infertility Counsellors Association
No comments:
Post a Comment