The Western Australian government is currently undertaking a review
of that State's assisted reproductive treatment and surrogacy laws. In
March I made both oral and written submissions to the review, which is being conducted by Professor Sonia Allan.
Currently gay male couples and single men are not allowed to undertake surrogacy in Western Australia- in breach of the Commonwealth's Sex Discrimination Act. I wrote to the WA Health Minister in May last year saying that change was coming- whether they liked it or not, as the exemptions allowing WA to discriminate were ending on 31 July 2017.
Subsequently the inquiry was called.
Here are my written submissions:
Currently gay male couples and single men are not allowed to undertake surrogacy in Western Australia- in breach of the Commonwealth's Sex Discrimination Act. I wrote to the WA Health Minister in May last year saying that change was coming- whether they liked it or not, as the exemptions allowing WA to discriminate were ending on 31 July 2017.
Subsequently the inquiry was called.
Here are my written submissions:
16 March 2018
The Program Manager
Reproductive Technology
Unit
Patient Safety &
Clinical Quality
Department of Health
Perth
Western Australia
By email –
HRTSR@health.wa.gov.au
Dear Madam
REVIEW OF THE HUMAN REPRODUCTIVE TECHNOLOGY ACT 1991 AND SURROGACY ACT 2008
I set out below my
submission as to the review. I am happy
to assist in any way if called upon for the purposes of the review. I will be seeking to meet with Associate
Professor Allan via Skype and will have my secretary organise that.
1.
Who am
I?
I am a family and
fertility lawyer based in Brisbane. I
have acted for intended parents, surrogates, donors and donor recipients from
all over Australia. I am the only lawyer
in Australia who has appeared in Court in four jurisdictions to obtain
parentage orders:
·
Queensland;
·
New
South Wales;
·
Victoria;
·
South
Australia.
I have acted for many
intended parents from Western Australia, some of whom contemplated overseas
surrogacy and some domestic surrogacy.
I have advised clients
from overseas about surrogacy law and practice.
Typically these or one of the parties is an Australian citizen. At last count there were clients from 28
countries overseas being:
Australia
|
|
1
|
Australian
Capital Territory
|
2
|
New South
Wales
|
3
|
Northern
Territory
|
4
|
Queensland
|
5
|
South
Australia
|
6
|
Tasmania
|
7
|
Victoria
|
8
|
Western Australia
|
Overseas
|
|
America
|
|
1
|
Brazil
|
2
|
Canada
|
3
|
USA
|
Europe
|
|
4
|
Belgium
|
5
|
Denmark
|
6
|
France
|
7
|
Germany
|
8
|
Ireland
|
9
|
Netherlands
|
10
|
Russia
|
11
|
Switzerland
|
12
|
UK
|
Middle East
|
|
13
|
Iran
|
14
|
Israel
|
15
|
UAE
|
Asia
|
|
16
|
China
|
17
|
Hong Kong
|
18
|
India
|
19
|
Indonesia
|
20
|
Japan
|
21
|
Malaysia
|
22
|
Philippines
|
23
|
Singapore
|
24
|
Thailand
|
Oceania
|
|
25
|
New
Caledonia
|
26
|
New
Zealand
|
27
|
Papua New
Guinea
|
28
|
Solomon
Islands
|
I have written and
presented widely about surrogacy law including for:
·
Family
Law Section, Law Council Australia;
·
Royal
Australian and New Zealand College of Obstetricians and Gynaecologists;
·
American
Society of Reproductive Medicine;
·
Fertility
Society of Australia;
·
Family
Law Practitioners Association of Western Australia;
·
Queensland
Law Society;
·
Law
Society of South Australia;
·
International
Academy of Family Laws Surrogacy Symposium;
·
American
Academy of Adoption and Assisted Reproduction Attorneys;
·
American
Bar Association.
I was the co-author of and
principal advocate of Policy 116b of the American Bar Association passed in
February 2016 as to the proposed nature or the possible Hague Convention on
private international law concerning children including international surrogacy
arrangements. The Association has
400,000 members throughout the world.
I have presented about
surrogacy in the UK, US, South Africa, Hong Kong and Australia.
I was admitted in 1987
as a solicitor to the Supreme Court of Queensland. I have been an Accredited Family Law
Specialist since 1996. My first surrogacy
case was in 1988. In 2017 my firm under
my direction represented 116 singles or couples in relation to surrogacy and a
further 5 couples or singles in relation to donor issues. I have also advised several IVF clinics in
several States about regulatory issues.
I have acted in cases involving posthumous use of sperm, including two
cases from Western Australia. No doubt
Associate Professor Allan will have access to more up-to-date figures than I
do, but as best I can calculate, the number of Australians undertaking
surrogacy currently represents:
·
40
surrogacy journeys a year in Australia; and
·
250
overseas surrogacy journeys undertaken by Australians each year.
I have acted in ground
breaking cases, for example:
·
LWV v. LMH (2012), which was a
worldwide precent as to what constitutes conception.
·
P + P (2012) – which
established who was a couple and counselling requirements.
·
Re Grosvenor (2017) and Sigley and Sigley (2018) – in which US
surrogacy orders were registered in Australia, and with Re Halvard (2016) set the benchmarking as to what is commercial
surrogacy;
·
The
first interstate surrogacy cases in each of Queensland and New South Wales
(2012).
I am currently a member
of the following amongst others:
·
ANZPATH;
·
Fellow
of the International Academy of Family Lawyers including a member of its
Surrogacy/Parentage Committee and of its LGBT Committee;
·
Founder
and director of the LGBT Family Law Institute Australia;
·
Fellow
of the American Academy of Adoption and Assisted Reproduction Attorneys;
·
International
representative on the ART Committee of the American Bar Association;
·
Member
of the Fertility Society of Australia;
·
Member
of the National Surrogacy and Donor Committee of City Fertility Clinic.
The views expressed in
this submission are mine and do not necessarily represent the views of the
various associations of which I am a member.
2.
Human
Rights Framework
It is essential that
there is appropriate regulation of ART in Western Australia including that of
surrogacy. In my view this can be
achieved by:
·
legislation
regulating gamete and embryo donation;
·
legislation
as to parentage presumptions;
·
legislation
regulating surrogacy;
·
reliance
on the National Health & Medical Research Council’s Ethical Guidelines on
the use of Assisted Reproductive Technology in Clinical Practice and Research
(2017), related Commonwealth legislation and the scheme of RTAC regulation devised
between the Fertility Society of Australia and the NHMRC;
·
legislation
setting up a central register.
Both ART and surrogacy
generally have a myriad of complex moral and ethical issues and it is essential
in my view that there is appropriate regulation. Surrogacy, whilst usually involving ART, is
not a medical process, but a legal process of transfer of parentage from the
surrogate (and her partner if any) to the intended parent or parents.
As part of that
regulation, regulation ought to ensure that the human rights of all involved
are protected, the most relevant being:
·
The
donor and donor’s partner;
·
Any
donor conceived individuals (whether as children or adults);
·
Surrogate
and her partner;
·
The
intended parents;
·
Any
child conceived from a surrogacy arrangement.
A number of strengths,
in my view of how we regulate surrogacy in Australia in all its different
varieties are that:
1.
There
is a requirement for independent legal advice before the parties enter into the
surrogacy arrangement.
2.
There
is a requirement for the parties to have independent counselling and screening with
a report from that counselling prior to entering into the surrogacy
arrangement.
3.
With
the exception of Victoria and the Australian Capital Territory, there is a
requirement for there to be a written surrogacy arrangement. The inquiry undertaken by the Tasmanian
Parliament in 2011 rejected the format of the Bill on that point initially when
it proposed that a surrogacy arrangement could be oral. Having advised clients about domestic
surrogacy arrangements in all eight States and Territories, I would strongly
endorse the need for the surrogacy arrangement to be written.
4.
In
addition to any regulatory requirements, the common practice of IVF clinics is
to have a separate ethics committee to consider whether treatment should be
given in any proposed surrogacy journey.
Risks are carefully assessed, such as:
·
whether
surrogacy is necessary;
·
psychosocial
issues;
·
medical
issues;
·
legal
and regulatory issues.
5.
That
ultimately there is judicial oversight.
I cannot state how important it is to have this step. From a procedural point of view it is
necessary for the recognition of the parent/child relationship by virtue of the
provisions of the Surrogacy Act, the Family Law Regulations, section 60HB of
the Family Law Act and section 8 of
the Australian Citizenship Act. From a substantive point of view, in my view
it is absolutely essential because in the rare event that something goes wrong,
my experience is that judges are particularly sensitive to ensure that in the
volatile circumstances that all parties are treated as sensitively as possible
and, as one would expect, the best interests of the child are the paramount
concern.
3.
Non-discrimination
Since 1 August 2017 both
Acts have fallen foul of section 22 of the Sex
Discrimination Act 1994 (Cth). This
followed international criticism at the United Nations Human Rights Committee
in Geneva about Australia’s discrimination against LGBTI people.
In May 2017 I wrote to
the Minister for Health, alerting him to this issue and asking what would be
done to remedy this. I am delighted that this review is being undertaken.
4.
Current discrimination
As was recognised in the
regulations to the Sex Discrimination Act
1994 (Cth), these two Acts discriminate against LGBTI people, particularly
against gay couples. The effect of
section 19 of the Surrogacy Act is
that:
·
Heterosexual
couples can undertake surrogacy;
·
Single
women can undertake surrogacy;
·
Lesbian
couples can undertake surrogacy;
·
Single
men cannot undertake surrogacy;
·
Gay
couples cannot undertake surrogacy.
It is unclear if a
couple in which one of the parties is intersex or transgender can undertake
surrogacy in Western Australia currently.
These provisions are
simply offensive and discriminatory in accordance with principles of
international norms, more to the point in breach of section 22 of the Sex Discrimination Act 1984 (Cth). There is a need, irrespective of any other
change to the legislation, to ensure that the law in Western Australia does not
discriminate against LGBTI people.
5.
Yogyakarta Principles
In 2006 a distinguished
group of international human rights experts met in Yogyakarta, Indonesia to
outline the set of international principles relating to sexual orientation and
gender identity. The result was the Yogyakarta Principles: a universal guide to
human rights which affirm binding international legal standards with which all
States should comply.
Principle 1 provides
relevantly – the right to the universal enjoyment of human rights:
“All
human being are born free and equal in dignity and rights. Human beings of all sexual orientations and
gender identities are entitled to the full enjoyment of all human rights.
States
shall: …
(b) amend
any legislation, including criminal law, to ensure its consistency with the
universal enjoyment of all human rights.”
Principle 2 – the rights
to equality and non-discrimination – provide relevantly:
“Everyone
is entitled to enjoy all human rights without discrimination on the basis of
sexual orientation or gender identity.
Everyone is entitled to equality before the law and the equal protection
of the law without any such discrimination whether or not the enjoyment of
another human right is also affected.
The law shall prohibit any such discrimination and guarantee to all
persons equal and effective protection against any such discrimination.
Discrimination
on the basis of sexual orientation or gender identity includes any distinction,
exclusion, restriction or preference based on sexual orientation or gender
identity which has the purpose or effect of nullifying or impairing equality
before the law or the equal protection of the law, or the recognition,
enjoyment or exercise, on an equal basis, of all human rights and fundamental
freedoms. Discrimination based on sexual
orientation or gender identity may be, and commonly is, compounded by
discrimination on other grounds including gender, race, age, religion,
disability, health and economic status.
States
shall: …
(c) adopt
appropriate legislative and other measures to prohibit and eliminate
discrimination in the public and private spheres on the basis of sexual
orientation and gender identity;
(e) in
all their responses to discrimination on the basis of sexual orientation on
gender identity, take account of the manner in which such discrimination may
intersect with other forms of discrimination.”
Principle 24 – the right
to found a family provides, relevantly:
“Everyone
has the right to found a family, regardless of sexual orientation or gender
identity. Families exist in diverse
forms. No family may be subjected to
discrimination on the basis of a sexual orientation or gender identity of any
of its members.
States
shall:
(a) take all necessary legislative,
administrative and other measures to ensure the right to found a family,
including through access to adoption or assisted procreation (including donor
insemination), without discrimination on the basis of sexual orientation or
gender identity;
(b) ensure
that laws and policies recognise the diversity of family forms…
(f) take
all necessary legislative, administrative and other measures to ensure that any
obligation, entitlement, privilege or benefit available to different-sex
unmarried partners is equally available to same-sex unmarried partners.”
6.
Who
wants to be a surrogate?
The typical surrogate is
a woman who:
·
is
over 25;
·
has
had all of her own children;
·
likes
being pregnant;
·
had
problem free pregnancies and quick, problem free childbirths;
·
above
all, sees it as her mission in life, and for some, a mission from God, to give
the gift of life to others.
This is the case for
surrogates I have acted for or dealt with from Australia, New Zealand, Canada
and the US.
I have acted in cases in
Queensland and New South Wales where:
·
the
surrogate has not had children before;
·
the
surrogacy journey is traditional, not gestational.
With careful screening,
these surrogacy journeys can work very well although our instincts with either
is that they will be problematic.
I insist in all my
surrogacy arrangements that the obligations of each party are clearly set
out. Surrogate clients feel empowered
that a clause is in the surrogacy arrangement akin to s.16 of the Surrogacy Act 2010 (Qld) – that the
surrogate has the same rights to manage her pregnancy and childbirth as any
other woman.
In my view it is vital
that this clear statement (and the clearly enunciated guiding principles and
objects of the Queensland Act, including as to openness and honesty) becomes
part of the statute law of Western Australia.
The view that surrogates
are oppressed is not consistent with what I have observed in Australia, Canada,
New Zealand or the US. Surrogates in
these countries at least appear to be modern assertive women.
7.
Digital disruption
Whether we like it or
not, we are in the midst of the digital revolution. Digital disruption is not isolated to cab
licences and Uber. Intended parents as a
matter of course go online, often from their mobile phone, to find out how they
can be parents through surrogacy. Sometimes
the information that they obtain is accurate and at other times the information
is wildly inaccurate or misleading. I
applaud the continuing efforts of VARTA to provide information to members of
the community. If the Reproductive
Technology Council is to remain after this review, it ought to do
likewise. I have simply lost count of
the number of Western Australian clients who have a paucity of information
about their options of family formation.
One might have thought it was the remit of the statutory authority, the
RTC, to provide that information; but to date it has not done so to any
meaningful extent, at least on the feedback given to me by my Western Australia
clients.
The numbers, as I
indicated above (and no doubt Associate Professor Allan may well have more
up-to-date numbers), are approximately 40 children a year born through
surrogacy in Australia and 250 born overseas.
These numbers demonstrate what I see in everyday practice – a continued
frustration by intended parents about there not being available egg donors or surrogates. According to recent news reports, which are consistent
with what I have seen in practice, is that the number of surrogacy arrangements
approved each year by the Reproductive Technology Council in Western Australia
is approximately one.
The number of approved
surrogacy arrangements is similar to that of South Australia, a State with a
population of 1.7 million, AWOTE in Western Australia as of November 2017 is
approximately $91,000 a year, according to the Tasmanian Treasury. By comparison, according to the same source,
the amount in South Australia is $75,000.
One would expect a higher number of approved surrogacies in Western
Australia, given the higher population and higher income.
Western Australia has a
population of just under 2.5 million people.
The Australian population is approximately 24 million. In other words, approximately one in every 10
Australians reside in Western Australia.
One might expect, based on the national numbers that if surrogacy is
being entered into at the same rate in Western Australia as it is in the rest
of the country, then:
·
there
should be 4, not 1 surrogacy journeys a year domestically;
·
there
should be 25 international surrogacy journeys a year.
It is alarming to think
that for every child born through the domestic regime of surrogacy in Western
Australia, 24 or 25 children might be born overseas. Even if it is say, 20 to 1 that says that
there is something drastically wrong with the regulation of ART and IVF in
Western Australia.
Western Australian
intended parents are voting with their feet – and going elsewhere.
The cost of surrogacy
varies dramatically, and one might think, encourage intended parents to stay at
home and not go abroad. The figures I
estimate from asking my clients:
·
Cost
of surrogacy – east coast Australia – $30,000 to $70,000;
·
Cost
of surrogacy – USA – $145,000 to $300,000 (although an agency has a VIP program
where the cost is about $400,000);
·
Cost
of surrogacy – Canada – $120,000 as a ballpark figure.
The temptation is to
produce a perfect form of stringent regulation, the aim of which is that no-one
is exploited, human rights are protected and that appropriate safeguards are in
place. A model of stringent (as opposed
to adequate) regulation will inevitably fail, because it does not take into
account human behaviour and the digital world in which we live.
The challenges are:
·
Consumers
who want to be parents will increasingly adopt solutions for them, not solutions imposed by regulators. The rise of Uber and the demise of taxi
licensing is a clear parallel of consumerism at play.
·
Consumers
will increasingly adopt digital “solutions” and seek information from the web
information available to them in seconds.
·
If
consumers perceive that regulations are too stringent, and don’t strike the
right balance – they will go elsewhere.
This has already been demonstrated to have occurred in Western Australia
with surrogacy regulation.
·
The
risk in their doing so is that some go to jurisdictions where there is no or
minimal human rights framework. The
challenge is to ensure that the balance of regulation is such that, with
adequate safeguards, that intended parents are encouraged to be parents at
home, not abroad.
·
The
current settings mean that intended parents who go to well-regulated
jurisdictions with strong human rights based approaches, such as the US or
Canada are treated the same as those who go to developing countries which often
lack any protections or regulation.
·
Those
who had given up the idea of ever becoming parents, are increasingly aware that
they now can become parents – and demanding solutions. If those solutions are not available at home,
they will go abroad.
To say that there is
currently successful regulation of surrogacy in Western Australia is akin to Yes
Minister’s Sir Humphrey Appleby boasting of the success of a hospital as having
the best statistics in the country – a hospital that had no patients.
8.
General commentary on
the profile of those undertaking surrogacy
I do not keep specific
figures about the sexuality of my clients.
Because of biology, it is not surprising that a large number of those
who intend to become parents through surrogacy are gay couples. From my experience it is not a majority. From my experience with Western Australian
clients, about 50% are heterosexual couples, just under 50% gay couples and
then others are singles.
This matches what I have
seen nationally which is that there are a small number of single intended
parents (primarily men) seeking to be parents through surrogacy, a small number
of lesbian couples seeking to access surrogacy and the occasional transgender
intended parent.
One may think that
lesbian couples will never access surrogacy because if one woman could not get
pregnant then the other can. Although
not common, nature is not always so kind.
On occasion lesbian couples need to access surrogacy.
Similarly, one might
expect with a gay couple that if the sperm of one does not work, then they can
become parents using the sperm of the other.
On uncommon occasions, I have had gay couples who have needed to
undertake sperm donation in order to become parents through surrogacy.
The desire to become
parents is just as strong with clients who are:
·
heterosexual
couples;
·
gay
couples;
·
lesbian
couples;
·
single;
and
·
other.
Similarly the desire to
conceive and love a child seems to make little difference as to whether there
is a genetic connection between the intended parents and the child.
Example of Judy:
Judy
lives in New South Wales. She is a
single woman. Judy sought to have a
local surrogate, somewhere in Australia.
Despite her best efforts, she was not able to locate anyone. This is not uncommon – and is reflected in
the number of births of children born overseas as opposed to those born
domestically. Being a single woman,
Judy also needed a sperm donor.
Judy was
also unable to reproduce and needed an egg donor. Judy was also unable to source a local egg
donor, i.e. someone in Australia.
Accordingly, Judy felt that she had no option but to undertake
surrogacy overseas or never become a parent, a concept that was completely
alien to her.
Judy
underwent surrogacy in Canada. ART was
undertaken in the United States, utilising both a US sperm donor and a US egg
donor. Twins were conceived and
born. A Canadian court ordered the
transfer of parentage to Judy.
Judy
travelled home to Australia with her twins, who obtained Australian
citizenship.
It is unclear
if the children have a legal parent relationship with Judy under the Family Law Act 1975 and Status of Children Act 1996
(NSW). The children are much adored by
their mother, Judy, her parents and members of extended family and friends.
|
Example of Don:
Don and
his wife underwent surrogacy in Western Australia. They had great difficulty in finding a
surrogate, until a friend offered to do so.
Don and his wife found the statutory regime under the Surrogacy Act extremely onerous. Whereas the Act has a 3 month cooling off
period before RTC approval, in reality it was 6 months. This meant that the process from the
beginning until RTC approval was obtained was almost 2 years.
Their
friend did not get pregnant.
Instead, frustrated
with the process and not prepared to spend another 2 or 3 years in Western
Australia locating a surrogate and then seeking approval, Don and his wife
went to California. They found the approach in California by all concerned
(lawyers, doctors, counsellors etc.) extremely professional, respectful of
the surrogate and her human rights and transparent. A child was conceived and born. An order was made transferring parentage to
Don and his wife. They travelled home to Perth and obtained Australian
citizenship. Don’s message was never to
go through surrogacy in Western Australia and encouraging everyone to
undertake surrogacy in California or the United States.
He said
to me to the effect: “Everyone else is
getting paid: doctors, lawyers, counsellors and the judge. Yet the woman who bears the most risk,
including the risk of death, namely that of the surrogate, is the only one
not being paid. That doesn’t make any
sense.”
|
9.
Is money the motivation?
The expenses paid for
Australian surrogates varies from case to case, but from my experience has been
between $8,000 and $30,000, often in the range of $11,000 to $15,000.
The one case in which my
firm acted where the surrogate’s expenses were $30,000 involved a surrogate who
ceased work for medical reasons – and the intended parents had not obtained
income protection insurance for her. If
that insurance had been obtained, the cost would have been much lower. The Court in making the parentage order was
aware of the amount.
Canada has an altruistic
model of surrogacy. A typical Canadian
surrogate will be reimbursed expenses of up to a cap of C$20,000 to C$22,000.
The US is viewed
typically as having a commercial model of surrogacy. However, it was made plain in Re Halvard, surrogacy in the US may be
within Australian definitions of altruistic surrogacy.
Surrogacy regulation in
the US varies from State to State and often is judge made law. My US colleagues have made plain to me that
judges there expect certain norms to be met in the terms of the gestational
carrier agreements – including caps on the amounts that surrogates receive by
way of base compensation.
Base compensation varies
considerably across the US from as low as US$20,000 in some places to typically
US$37,000 to US$42,000 in California.
With two highly regarded, long established surrogacy agencies the base
compensation is as high as US$60,000.
While money is a clear
motivation, the message I have received time and again from lawyers, surrogacy
agencies and surrogates is that the prime motivator for surrogates is giving
the gift of life, not that of money.
There is some limited research to this effect also.
Surrogacy agencies in
the US avoid would-be surrogates who are indigent or in receipt of social
security, for obvious risk reasons:
·
The
would-be surrogate is acting out of financial desperation, the wrong
motivation; and
·
Therefore
may be more inclined not to care for the unborn child properly through the
pregnancy, or indeed call off the surrogacy.
Surrogates in the US and
Canada from my experience are typically usually working or middle class
women. All have typically finished high
school. Most are married. Some cohabit with male partners. Some are single. A few are lesbian. Some have college degrees and a few have post
graduate qualifications.
The profile of US and
Canadian surrogates is little different in my experience to Australian
surrogates: most of whom are working or middle class, most are married, some de
facto, some single, a few lesbian.
Typically Australian surrogates have finished high school. Some are professionals. One was a chief financial officer, and
another a doctor.
10.
The
myth of rich
intended parents
While surrogacy is not
cheap, it is untrue to assert that the only people who undertake surrogacy are
rich.
Most Australian intended
parents – whether undertaking surrogacy domestically or internationally – are
middle class. They save up or draw down
their mortgage, borrow money from the bank, family or friends or access
superannuation to undertake surrogacy.
Richer Australian intended
parents undertake surrogacy through more expensive US surrogacy agencies. Those with not so deep pockets do not and
either go to cheaper US surrogacy agencies, to Canada, or to other cheaper
destinations, such as the Ukraine.
Due to their ethnicity,
Australians may seek to undertake surrogacy in their country of origin. For example, Greek Australians may do so in
Greece.
11.
Comparison with interstate
models
As Professor Allan is
well aware, the House of Representatives’ surrogacy inquiry in 2016 recommended
that there be national non-discriminatory laws as to surrogacy. That report has not been acted upon in any
way. Nevertheless, there are plain
difficulties with the model of regulation of surrogacy in Western Australia and
difficulties with interstate arrangements.
Example of George and Mildred:
George
and Mildred lived in London, where George had a very successful career in the
City. They are unable to conceive
children except through surrogacy.
George’s sister-in-law, Elizabeth who lives in Brisbane with her
husband Philip offers to be the surrogate.
George and Mildred, Elizabeth and Philip enter into a Queensland
surrogacy arrangement. They can do
this even though George and Mildred do not live at the time of signing in
Queensland. In accordance with the
ANZICA counselling guidelines, counselling has to occur in person prior to
entry into the surrogacy arrangement.
That counselling occurred.
After the
birth of the child, George and Mildred move to Queensland. As they are resident in Queensland at the
time of the hearing of the application, they are able to obtain an order from
the Childrens Court of Queensland transferring parentage to them.
The Surrogacy Act 2008 (WA) does not have
that flexibility and would have prevented a couple such as George and Mildred
coming within the regulatory regime of the Act, including ultimately judicial
oversight of the process. They would
have been denied parents if the surrogate had been living in Western
Australia – unless they had moved to Western Australia at the time of entry
into the surrogacy arrangement. It is
likely that if George and Mildred were unable to access a regulatory regime
allowing family surrogacy, they would have undertaken surrogacy in the U.S.
|
Example of Bill and Ben:
Bill and
Ben are farmers in Western Australia.
They are a couple who want to have a child. They are denied access to the Surrogacy Act because they are a gay
couple.
They
undertake surrogacy in the United States – where they are recognised by a
Court order as the parents. In doing
so they realise that they may be committing a criminal offence in Western
Australia. Nevertheless, they have
obtained citizenship for their child who resides with them. It is doubtful, in light of the decision in
Bernieres and Dhopal [2017] FamCAFC
180 that they have a legal parent/child relationship under the Family Law Act and therefore for
inheritance purposes.
|
Example of Frida and Benny:
Freda and
Benny are a couple living in northern New South Wales. Frida is genetically male but is
transgender. Frida has had surgery and
identifies as female. She and Benny
wish to have a child. They approach a
Queensland IVF clinic. They are able
to proceed with surrogacy because:
(1)
the Surrogacy
Act 2010 (NSW) does not discriminate;
(2)
the Surrogacy
Act 2010 (Qld) does not discriminate;
(3)
the Surrogacy
Act 2010 (NSW) allows IVF to occur anywhere;
(4)
the Surrogacy
Act 2010 (Qld) does not prevent doctors in Queensland from providing
treatment for patients outside Queensland for surrogacy if the surrogacy
journey is an altruistic one.
If Freda
and Benny had been living in Western Australia:
·
It is uncertain as to whether they would
be able to access the Surrogacy Act. Are they a heterosexual couple within the
meaning of that Act?
·
They are not able to access IVF clinics
interstate. Intended parents do not
have a choice. They are forced by the
State regulation under the HRT Act
and the Surrogacy Act to undertake
their ART in Western Australia.
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12.
Changing nature of
heterosexual couples seeking surrogacy
Ten years ago, those
heterosexual couples seeking surrogacy typically had undergone endless rounds
of IVF. IVF in Australia is funded in
large part by a Medicare rebate if the doctor deems the patients to be
medically infertile and the ART is not for the purposes of surrogacy. Eight to ten years ago heterosexual couples would
often come in worn down by the rollercoaster ride of failed attempts at IVF involving
elation, hope, anxiety and depression.
Clients of mine have undertaken up to 32 rounds of IVF. All of this has been subsidised to some
greater or lesser degree by the Australian taxpayer. Often this endless IVF would be undertaken because
there was no alternative. Surrogacy was
not readily available or talked about.
Times have changed. More commonly now heterosexual couples undertake
5 or less rounds of IVF before realising that they need to either obtain the
assistance of an egg donor or a surrogate.
The number of Australians who access egg donation overseas is
staggering. In 2016 I visited a
fertility clinic in South Africa. I was
told by the director of that clinic that 3-5 Australian couples attend there per business day for the purposes of egg
donation.
Australia in my view has
rightly recognised that a child has a right to know their genetic origins. That is not the case in South Africa or most
other places that have egg donation.
Nevertheless, the regulatory challenge in Australia is to make egg donation
easier so that intended parents don’t pursue egg donation overseas. More importantly, for the benefit of the
child who may be conceived from that egg donation that this occurs in
Australia, not overseas.
The strong message that
I receive from my clients – loud and clear – with the exception of Western
Australia, is that my clients would rather undertake IVF and with everything
associated with it at home and not overseas.
Why I say that there is
an exception with Western Australia is that my clients in Western Australia
generally would prefer to undertake ART in Western Australia. However, many of them are aware that the
costs of IVF in Western Australia is the most expensive in the country,
typically another $2,000 to $3,000 per IVF cycle compared to undertaking IVF in
Brisbane, Sydney or Melbourne. One might
wonder why that complained of cost is so much higher. I speculate two possible reasons:
1.
The
isolation of Perth and a comparative lack of competition in Perth as compared
to fierce competition in the eastern capital cities;
2.
The
regulations set out in the directions of the Commissioner of Health.
The details of the
Directions and their conflict within the Ethical
Guidelines in placed would mean that Western Australia IVF clinics likely
would spend more than interstate clinics on meeting the regulatory compliance
burden. That cost burden, inevitably, is
passed onto intended parents (before they contact me).
Why shouldn’t someone
living in Perth be able to easily access IVF services of a doctor of their
choice somewhere else in Australia, when those doctors are subject to largely
the same regulatory regime for medical practice with AHPRA, and (except when
surrogacy is involved), the cost of ART is met by the Commonwealth taxpayer?
13.
Compensation
In my view, surrogates
ought to be properly compensated and should no longer be out of pocket. Surrogates have a real risk of death. They endure all kinds of expenses. The definition of reasonable expenses contained under section 6 of the Act is simply too
narrow. It needs to be widened, along
the lines of Queensland or New South Wales.
Example of Anne-Marie:
Anne-Marie
was a surrogate in Brisbane. The
intended parents lived in Sydney.
During the course of her pregnancies, Anne-Marie would suffer
backache. Anne-Marie sought that she
have acupuncture and massages during the course of the pregnancy. Each of these was deemed to be a reasonable
cost within the relevant sections of the Surrogacy
Act 2010 (NSW) and the Surrogacy
Act 2010 (Qld). Neither is a
reasonable expense allowed under section 6(3) of the Surrogacy Act 2008 (WA). If
the parties had entered into this surrogacy arrangement in Western Australia,
they would have been committing the offence of entering into a surrogacy
arrangement that is for reward.
|
Quite simply, there are
a myriad of different rules varying from State to State as to what is or is not
commercial surrogacy. In my view,
following decisions of the Family Court, there is much more of a blurred line
as to what is commercial surrogacy in Australia (which I will detail
below). In Victoria, for example, it is
a criminal offence being commercial surrogacy to pay life insurance for the
surrogate – even though by becoming pregnant and giving birth she has a risk of
death. South Australia had similar rules
but still South Australian legislation remains vague about what can be paid and
what cannot be paid. Queensland and New
South Wales have similar rules under their Surrogacy
Acts, based on reasonable cost. In
my view this is the most flexible approach and avoids arbitrary outcomes as to
whether or not parties might be committing criminal offences by seeking to
provide properly for their surrogate.
The definitions under the Queensland and New South Wales Acts lead to a
less likely outcome of the surrogate being out of pocket. If the aim is to ensure that the surrogate is
adequately provided for, the definition of surrogacy arrangement that is for
reward under section 6 of the Surrogacy
Act 2008 (WA) is woefully inadequate.
Rather than protecting the surrogate, it leaves her financially exposed.
14.
Recognition of interstate
parentage orders
There is no specific
recognition in the Births, Deaths and
Marriages Registration Act 1998 (WA) of interstate parentage orders. Such orders may arise with intended parents
who live interstate but with a surrogate who lives in Western Australia. There ought to be such recognition similar to
that contained under the New South Wales equivalent.
15.
Publishing offence
It
would appear that the utility of this offence has been outlived by
reality. Every day anyone in Western
Australia who wants to undertake surrogacy can open their mobile phone and
within a few seconds see an advertisement to undertake surrogacy somewhere else
– typically on a commercial basis. The
law has little effect and one wonders about its utility.
16.
Repeal of section 11 Surrogacy Act
Anyone who is
contemplating undertaking commercial surrogacy ought to be able to obtain legal
advice. The effect of section 11 is that
anyone living in Western Australia cannot obtain legal advice from a lawyer in
Western Australia if that person is contemplating undertaking surrogacy
overseas – or indeed interstate.
The definition of surrogacy arrangement that is for reward
is so narrow that:
·
entry
into an interstate surrogacy arrangement may constitute the committing of the
offence;
·
entry
into a surrogacy arrangement in an altruistic jurisdiction, such as Washington
State, Michigan, Virginia or Canada – may also constitute an offence in Western
Australia.
As was made plain in the
Baby Gammy case, Farnell v. Chambua
[2016] FCWA 17, intended parents in Western Australia may inadvertently be
committing the offence of entering into a surrogacy arrangement that is for
reward by engaging in surrogacy overseas by virtue of section 12 of the Criminal Code.
Associate Professor
Allan is well aware of my views that surrogates should be properly compensated,
and this should be allowed under the Western Australian legislation. With appropriate checks and balances, the
surrogate can be protected, such as:
·
independent
legal advice pre-signing;
·
counselling
pre-signing;
·
written
surrogacy arrangement;
·
review
by ethics committee of the relevant IVF clinic;
·
post-birth
assessment to recommend to the court as to the child’s best interests;
·
judicial
oversight.
17.
Language
The international term
of those who wish to be parents through surrogacy is intended parent. This is
commonly used in the courts in the United States and Canada and by colleagues
in the United Kingdom. It is also the
language of interstate legislation, such as Queensland and New South
Wales. To be called arranged parents doesn’t give credit to the role of those who wish
to be parents. Similarly archaic
language such as substitute parents
seems as though their parenting is not real but fake. Commissioning
parents sounds as though they have bought a baby in the same way that they
might have commissioned a ship or the purchase of a car. It is in my view somewhat disrespectful of
them and of the process, which at its best is magical. These people intend to be the parents and
hopefully with the making of an order which should be termed a parentage order,
become the parents as a matter of law.
18.
Surrogacy arrangement not
binding
Section
7 contains the common principle found throughout Australian surrogacy law. The principle contained within section 7 is a
noble one. It is that a woman who has
given birth should have the right to decide whether or not she should hand over
the child. She should not be pressured
or the subject of duress. Unfortunately,
as seen in cases such as Lamb and Shaw
[2017] FamCA 769, a surrogate has the ability to withhold the consent for any
reason. There ought to be the ability
nevertheless to transfer parentage even without her consent in circumstances other
than those involving child protection issues.
The complaint that I
have recently heard from UK colleagues is that because of the failure to ensure
that the agreements are binding, the same problem exists in the UK where
surrogates capriciously at times withhold consent causing untold grief to the
intended parents and one must think failing the best interests of the child.
19.
Eligibility
To ensure commonality
across Australian States as to regulation, it is urged:
1.
Adopt
the model seen in New South Wales or Queensland. Almost 8 years of practice with the model
demonstrate that in general it works very well, with flexibility and sufficient
checks and balances to protect all concerned.
2.
Consistent
with that, change the definition of eligibility to that seen in New South Wales
and Queensland – a model giving greater flexibility than under the Surrogacy Act.
20.
Six
month limitation
The 6 month limitation
period is common across Australia. It
was copied from UK legislation and was originally derived from an arbitrary
source – the needs of a constituent of a Member of the House of Commons.
While intended parents
should pursue an application as quickly as possible, greater flexibility should
be allowed than currently exists if the intended parents fall outside the 6
month period, as seen in for example Re X
(A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam).
21.
The
model for surrogacy
regulation
Western Australia and
Victoria are alone in requiring regulatory approval before the surrogacy
arrangement can proceed. The model is
that if regulatory approval has been obtained, then the process before the
Court is straightforward. It is presumed
that the regulator got it right.
Having advised many
clients in Queensland, New South Wales, Victoria and South Australia about
surrogacy, I don’t see that there is anything particularly magical about there
being a regulator. The taxpayer has to
pay for the regulator. With the
regulatory model the intended parents have to obtain the approval of the ethics
committee of the IVF clinic and then obtain the approval of the regulator. Not having a regulator means that they still
have to obtain the approval of the ethics committee of the IVF clinic. IVF clinics are very keen to ensure that they
don’t impose risk where it is unnecessary. They are very much risk averse. They do not wish to be viewed as risking
their licences to operate or insurance.
As far as I am aware,
the cooling off period in Western Australia is unique worldwide. I see no great benefit from the cooling off
period, but instead inbuilt delay.
There are many delays
already inbuilt into the surrogacy journey, giving all concerned plenty of time
to reflect and reconsider.
Surrogacy is not a
journey for the faint hearted. It is the
means of reproduction of last resort, and typically requires those involved to
jump many hurdles.
Presumably the cooling
off period was enacted because it was thought that intended parents undertake
surrogacy on a whim. On the contrary,
intended parents face a variety of hurdles in a long and costly journey. They don’t ever undertake the journey on a
whim.
The regulatory model in
Western Australia and Victoria has in my belief two flaws:
1.
It
adds another step which really does not reduce risk to any great degree, but
adds delay and a cost burden to taxpayers which does not exist for taxpayers in
the other States.
2.
It
doesn’t address what happens post birth.
It presumes that all will be hunky-dory post birth because the regulator
got it right. In one case in which I was
asked to save a failed surrogacy arrangement, the surrogacy arrangement had
been approved by the Patient Review Panel in Victoria. Quite clearly, inadequate screening had
occurred, despite there being a regulator.
The parties fell out post birth.
There was no mechanism for post birth assessment or counselling as there
is in Queensland and New South Wales and as there is now to a limited degree
(in part because of submissions that I made) in South Australia. If and when the parties fall out post birth,
it is extremely helpful if there is some counselling or assessment process so
that each of the parties know that they have been heard and they can move
towards a workable solution with a minimum of acrimony. In my view, the post birth model as seen in
Queensland or New South Wales works well.
It is respectful towards the surrogate.
In my view there doesn’t need to be the relinquishment counselling as
seen in New South Wales but if it is to occur, then it is best to occur from
being given by the counsellor who provided the pre-signing counselling so that
the surrogate and her partner only have to deal with two counsellors in the
process, rather than three.
22.
The
challenge of children
born overseas
There are likely now
well over 100 children and maybe over 250 children born overseas to parents who
reside in Western Australia. For many of
those children, the parent/child relationship between them and their parents is
doubtful, given the effect of the decision of the Full Court of the Family
Court in Bernieres and Dhopal [2017]
FamCAFC 180. Western Australia is
blessed because unlike the other States, the Family Court of Western Australia
is invested with both State and Federal jurisdiction. The WA Parliament can give the Court jurisdiction
to make declarations that those who have undertaken surrogacy overseas are the
parents of the children. Australia is a
signatory to the UN Convention on the
Rights of the Child. Article 8 in
particular says that the child has a right to an identity. As recognised in the English case of, for
example, Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) – the
child’s identity in reality is that with the intended parents.
We are right to be
concerned about the impact of intended parents who have undertaken surrogacy in
developing countries. Nevertheless, it
is our obligation to protect the children.
We are failing to do so by failing to recognise the parent/child
relationship between them and their parents.
These are not isolated numbers but likely vastly outnumber the number of
children who have had orders made under the Surrogacy
Act.
In the view of Justice
Forrest, as set out in judgments below, it appears that the Commonwealth’s view
is that surrogacy is well regulated in the United States.
As the Australian Human
Rights Commission made plain in its submissions in Ellison and Karnchanit [2012] FamCA 602, while one might not
approve of the conduct of the parents, the children are innocent and need to be
protected.
These children who have
been born overseas ought to be protected as to their legal status. We ought not to have to wait for a Hague Convention to be in place covering
the issue, a matter that may take another 5, 10 years or longer.
23.
No
need for the donor to
sign
Western Australia is alone
for requiring the donor to sign the surrogacy arrangement and thereby have
legal advice and counselling. Nowhere
else in the world to my knowledge is this a requirement. Donor recruited sperm, egg or embryos
therefore cannot be used for surrogacy in Western Australia.
This step does not go to
reducing risk (as opposed to surrogacy journeys occurring interstate) but does
go to increasing cost and delay and lack of availability of surrogacy in
Western Australia thereby increasing the chances of intended parents travelling
overseas to access surrogacy. It ought
to go.
24.
Regulation of ART in
Western Australia
One wonders at the
utility of the Reproductive Technology Council.
It has set out mandatory guidelines which are Directions in the Gazette
of 30 November 2004.
Quite simply, the
Directions ought to be in sync with the 2017 version of the National Health and
Medical Research Council, Ethical
Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice
and Research.
They are not. The Ethical
Guidelines are peer reviewed and involved a thorough consultation process
over approximately 3 years. They are
simply more flexible in many respects than the Directions under the Gazette,
which no doubt reflected good practice on 30 November 2004 but are now
inconsistent in some respects with the regime that otherwise applies across
Australia.
I said above that I
speculated that the cost of ART in Western Australia is higher than the eastern
States in part because of the need to comply with regulatory requirements. WA doctors must not only comply with the Ethical Guidelines (as must doctors elsewhere)
but also comply with the Act and directions and the latter two in preference to
the Ethical Guidelines.
The Ethical Guidelines are comprehensive. Other than the desirability of a Central
Register, one wonders at the utility of the regulation in Western Australia.
Example of Jack and Jill:
Jack and
Jill want to be parents. Jack has
terminal cancer. Many years ago he
donated his sperm to be held in storage, in light of his diagnosis. Jack wishes Jill to become a mother using
his sperm.
Jack and
Jill marry two weeks before his predicted death. Jack lives on for another couple of months
and then dies.
Jack’s
sperm is stored in a laboratory in Perth.
Jill still wants to become a mother.
Because of the Directions,
treatment cannot occur in Western Australia.
In order to become a mother, the sperm is shipped to an IVF clinic in
Brisbane. There is then compliance
with the Ethical Guidelines. In addition to verifying consent, legal
advice as to compliance, counselling for Jill (with a report) and an adequate
period of mourning, Jill is then able to proceed to become a mother using
Jack’s sperm. At all times Jill
resided in Perth.
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25.
The
need for the continuation of functions conferred, on the Council and on the CEO
respectively by the HRT Act
In my view, the Council
adds a small cost to the Western Australian taxpayer. The risks that are evident with the ART
journey and surrogacy in particular are no greater alleviated in Western
Australia than anywhere else by its existence.
One wonders its utility. It hasn’t updated its Directions since 2004, 14
years ago. The legislative pathway to
undertake surrogacy appears to be inordinately difficult in Western Australia
compared to interstate. The Council if
it has published material about how to become parents has been far less active
than its Victorian equivalent.
26.
International commercial
surrogacy arrangements
As I mentioned above,
people from Western Australia have gone to the United States and Canada for the
purpose of surrogacy. The provisions of
sections 6 and 8 of the Surrogacy Act
and section 12 of the Criminal Code
means that they may have in some cases committed an offence under Western
Australian law. No-one has been
prosecuted. In 2014 the then heads of
Australian family law, Chief Justice Bryant of the Family Court of Australia
and Chief Justice Pascoe of the Federal Circuit Court of Australia called for
the repeal of laws criminalising Australians undertaking commercial surrogacy
overseas. They said that the laws were
ineffective but if they were there they ought to be enforced and if not
enforced (as was the pattern across Australia) they ought to be repeated
because to do otherwise was to make a mockery of the law. Nothing has changed since that statement was
made in late 2014. No-one has been
prosecuted for undertaking surrogacy overseas.
Intended parents from Western
Australia have also undertaken surrogacy in the Ukraine and in the past,
Thailand.
New Life Agency which
seems to have a specialty of setting up in developing countries, has in the
past offered surrogacy in India, Thailand, Cambodia and Mexico and now has set
up surrogacy in Kenya. In my view, we
can’t control what happens in overseas countries such as Kenya. Several of our jurisdictions have had laws
criminalising those undertaking commercial surrogacy overseas, in Queensland’s
case since 1988. Very few prosecutions occurred
in Queensland for any type of surrogacy and indeed it seems that not one person
has ever been prosecuted for undertaking commercial surrogacy overseas in any
Australian jurisdiction. As was obvious
in Farnell v. Chambua, Mr and Mrs
Farnell clearly believed that they had not committed any offence in Western
Australia, even though they may have done so in pursuing surrogacy in
Thailand. They weren’t prosecuted,
despite the case receiving the most extraordinary publicity.
In my view, the laws in
Western Australia concerning overseas surrogacy should reflect the reality and
that is that Western Australians are going in large numbers overseas for
commercial surrogacy because it is not available back home. They shouldn’t be criminalised in doing so.
Instead, there should be
greater ability to undertake surrogacy at home so that the temptation to go
abroad is lessened and that there is better regulation (including better
protection of human rights) at home than may occur abroad, at least in
developing countries.
If those in Western
Australia undertake surrogacy abroad, then there ought to be the ability
(currently denied them) to seek a declaration from the Court that they are the
parents of the child – and thereby have judicial scrutiny by Judges of the
Family Court of Western Australia.
27.
Recognition of overseas
surrogacy
There are currently
three ways that overseas surrogacy journeys are recognised in Australia:
1.
The
intended parents live overseas, complied with the laws overseas and were
recognised as the parents overseas.
Those intended parents are therefore recognised as the parents here, in
accordance with the decision of the Family Court of Australia in Carlton and Bissett [2013] FamCA 143.
2.
There
has been an overseas adoption of some kind.
This overseas adoption may fall outside the terms of the 1993 Hague Convention on Intercountry
Adoption, such as a second parent adoption for surrogacy. Because there has been an adoption, then by
virtue of the definition of child, parent, adopted in section 4 of the Family
Law Act 1975 (Cth), then we have the bizarre outcome that parent 2, namely
the second parent through a second parent adoption is a parent for the purposes
of the Family Law Act and
inheritance, but parent 1 may not be, in light of the decision in Bernieres and Dhopal.
3.
The
limited exception in which US surrogacy orders are able to be registered in
Australia.
28.
Registration of US surrogacy
orders
On three separate
occasions, Justice Forrest of the Family Court has registered US surrogacy
orders in Australia:
·
Re Halvard [2016] FamCA 1051;
·
Re Grosvenor [2017] FamCA 366;
·
Sigley and Sigley [2018] FamCA 3.
In all of these cases
the Court had to consider, as a matter of discretion, with the tests set out in
Re Grosvenor, whether it was
appropriate to register the overseas order, in light of public policy
considerations amongst other things. His
Honour noted that the Commonwealth has accepted that judicial processes in US
jurisdictions concerning surrogacy are appropriate. His Honour had the benefit of reading the
gestational carrier agreement in each of the three cases.
In Re Halvard the solicitor submitted that it was a commercial
arrangement under the Surrogacy Acts
of New South Wales and Queensland, but his Honour disagreed, saying that it was
reasonable but generous compensation to the surrogate and was not commercial
surrogacy masked as altruistic. In Re Grosvenor and in Sigley and Sigley, his Honour was satisfied that each surrogacy
arrangement was commercial but nevertheless thought it appropriate to register
the overseas order.
I acted in both Re Grosvenor and Sigley and Sigley. The process, whilst cheaper and quicker than
obtaining a declaration of parentage under the Family Law Act, is still nevertheless not a streamlined one. For example, in Sigley and Sigley from recollection the material was lodged with
the Court in August but the judgment was not delivered until the following
January. No doubt there are pressing
demands on judicial resources.
29.
International
trade in gametes and embryos
There remains a
worldwide shortage of sperm. From
discussions I have had with representatives of sperm banks at previous
Fertility Society of Australia conferences, there is a worldwide growth in
demand per annum of about 5% - an extraordinary growth. US sperm banks, such as Seattle Sperm Bank,
Xytex Sperm Bank and California Cryobank export to Australia.
The limit under 8.1 of
the Directions of no more than five
recipient families worldwide means that it is likely to be unviable for these
sperm banks to provide sperm to clinics in Western Australia. This may well result in intended parents in
Western Australia travelling somewhere else to access donor sperm, where the
limits are not so tight. It would appear
by comparison that the limit of five families in New South Wales appears to be
five only in New South Wales and not a worldwide limit, for example. I note that the number set under the Ethical Guidelines is reasonable.
Having a cap is designed
to ensure that inbreeding does not occur by accident but that there is
available sperm. If there is not
available sperm because sperm banks overseas won’t deliver to WA clinics, one
wonders the point of the cap.
I am aware that there is
a small number of eggs imported into Australia from the United States, in
compliance with NHMRC Ethical Guidelines
requirements and for those that occur in Victoria the further requirements of
VARTA and its legislation.
Even if the RTC were to
be abolished and the Directions
repealed, I would anticipate that the import of any eggs into Western Australia
will be minimal given the strict requirements under the Ethical Guidelines.
I am not aware of any
international trade in embryos whether in and out of Australia or elsewhere.
Intended parents ship
their embryos from Australia to overseas clinics, for use in implantation in
the intended mothers in these clinics or for use in their surrogacy journey.
Intended parents who do
so on the gauntlet of regulation in both countries. In Australia, this means compliance with the Ethical Guidelines plus
compliance with any State requirements.
Due to the stringent
requirements of the Ethical Guidelines
(let alone any State requirements), it is extremely difficult to import embryos
into Australia.
In addition to any other
regulations, Commonwealth regulations requiring the Minister for Agriculture’s
consent for the export of cattle embryos has meant that at times there have
been delays at the border so that officials can be satisfied that the embryos
being exported are human embryos, not cattle embryos.
Prior to 9/11, there
were stories of intended parents carrying their embryos overseas. Following security upgrades post 9/11, my
understanding is that this is not occurring, but that all exports of embryos
are carried by specialist freight handlers instead.
There have been
occasional reports of those who ship their embryos overseas having their
embryos lost or destroyed in transit.
Yours faithfully
Stephen
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