Wednesday, 31 October 2018

Trump's plan for citizenship may make surrogacy jounreys to the US more difficult

The United States President Donald Trump has told HBO that he plans to terminate the right to US citizenship to babies born in the US to immigrants and non-citizens. 
Mr Trump said he was seeking legal counsel to determine if he was able to bypass Congress and end birthright citizenship through an executive order.  He said:
            “They’re saying I can do it just with an executive order.”

The President said that the US was the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States. As the US broadcaster NPR has pointed out- it’s not. It’s one of 30 countries allowing children born there to become citizens, including Canada and Mexico.
About 50 babies a year are born to Australian intended parents in the United States via surrogacy.  Currently, the babies are entitled – at birth – to US citizenship.  This is because of the 14th Amendment to the US Constitution.  That amendment starts:

            “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The Amendment occurred after the US Civil War to guarantee that former slaves and the children of slaves were US citizens.  The Amendment is frequently before the courts. There is rarely a surrogacy law conference I go to in the US where the subject of the 14th Amendment is brought up in conference presentations or discussions amongst delegates.

House Speaker Paul Ryan said such a move would be “unconstitutional” and “Well, you obviously cannot do that.  You cannot end birthright citizenship with an executive order.”

NPR reports that Ryan noted any change to a constitutional amendment requires an act of Congress, adding:
“We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as Conservatives we believe in the Constitution…I’m a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

One of the complications for Australians undertaking surrogacy in the United States is that if the executive order issues and is not stayed or frozen by the courts, then the children being born in the United States will not be recognised as US citizens.  They will not have in fact any citizenship at all unless and until an application for Australian citizenship is successfully made to the Australian Government.  Typically, Australian citizens undertaking surrogacy in the United States obtain US citizenship for their child, and then travel back to Australia where the child applies for and obtains Australian citizenship.  The change, which my colleagues in the US say is unlikely to succeed, might mean that Australian citizens caught up in the mess may have to apply for Australian citizenship in the United States. 

To travel to the United States, Australians typically do so on ESTA under the visa waiver program, allowing Australians to say in the US for a maximum of 90 days.  According to the Department of Home Affairs, 25% of citizenship by descent applications are not disposed of within 2 months and 10% are not disposed of within 4 months.  Intended parents and their children might be caught between a rock and a hard place of the delays in the application for citizenship by descent not being decided by the time that their visa to the US expires.  

What President Trump has put forward may be just electioneering ahead of the mid-terms, and probably should not be overblown, but who can say?

Wednesday, 10 October 2018

WA laws on their way to allow single men and gay couples access to surrogacy

Yesterday the WA Lower House, on a conscience vote,  passed laws to amend that State's surrogacy laws to allow since men and gay couples to have access to surrogacy. The laws now make their way to the Upper House.

When the Surrogacy Act 2008 (WA) passed, it allowed single women, heterosexual couples, and lesbian couples to undertake surrogacy, but actively discriminated against single men and gay couples.

That discrimination continued unabated.

In 2015, Australia copped a shellacking at the UN Human Rights Committee in Geneva and as a result vowed to remove exemptions under the federal Sex Discrimination Act that allowed the States to discriminate against LGBTI people in the provision of assisted reproductive treatment and surrogacy. The federal government said it would end those exemptions by 1 August 2016. And indeed it did- except for Western Australia. For some reason, the exemption was continued for Western Australia until 1 August 2017.

In May 2017 I wrote to the WA Deputy Premier and Health Minister calling for the removal of this exemption. The response was that this would be considered by the Health Department. The next step was the holding of a review of ART and surrogacy laws in Western Australia. And now we have the bill- which will remove that discrimination if passed.

When the debate occurred yesterday, all the usual tired arguments in opposition as to the rights of the child were trotted out. Similarly, a gay MP and a lesbian MP spoke passionately in favour of the change.

The leader of the Nationals, Mia Davies, spoke passionately in favour of the change. 

If the change is made, then it is likely that WA single men and gay couples will be able to access surorgacy at home rather than go abroad.


The sobering statistics are that in the 10 years that WA has allowed surrogacy, only 1 child a year has been born there through surrogacy- a total of 10, from 34 surrogacy agreements. To put this into context, in most years 250 children are born to Australians through overseas surrogacy. If WA parents go overseas at the same rate as everyone else, then that means for every child born through surrogacy in WA, 23 or 24 have been born overseas. What kind of surrogacy system is it that forces people to go overseas (and some to developing countries) at the rate of 24 to 1, rather than doing so at home?


Religious review proposes to make permanent religious schools to turn away LGBTI teachers and students

The bakers, florists and limo drivers of Australia  and other serivce providers will still be prevented from discriminating against LGBTI people, as recommended by the religious freedom review, according to Fairfax Media. The religious freedom review that was headed by Philip Ruddock has recommended that there be religious schools be permitted to turn away LGBTI teachers and students. The review was handed to the Turnbull government four months ago and has not been released for public scrutiny.

In the words of Fairfax Media:

"The report calls for the federal Sex Discrimination Act to be amended to allow religious schools to discriminate against students on the basis of sexual orientation, gender identity or relationship status - something some but not all states already allow."

The proposed step would be a step backwards for LGBTI students. For example, in the ACT there is no exemption for discrimination against LGBTI students. Section 46 of the Discrimination Act 1991 (ACT) provides:

"Section 18 does not make unlawful discrimination on the ground of religious conviction in relation to a failure to accept a person's application for admission as a student at an educational institution that is conducted solely for students having a religious conviction other than that of the applicant.
Note     The Legislation Act
, dict, pt 1 defines fail to include refuse."

Therefore while a Catholic school could refuse to admit for enrolment a Muslim student, it cannot refuse to enroll (or discriminate against the student at school) a student who is a Catholic, but happens to be lesbian, gay, bisexual, trans or intersex.

However the panel:

"... did not accept that businesses should be allowed to refuse services on religious grounds, warning this would “unnecessarily encroach on other human rights” and “may cause significant harm to vulnerable groups”.
The review also found civil celebrants should not be entitled to refuse to conduct same-sex wedding ceremonies if they became celebrants after it was was legalised.
The review does not recommend any changes to the Marriage Act. Nor does it recommend a dedicated Religious Freedom Act - championed by several major Christian churches - which would have enshrined religious organisations’ exemptions from anti-discrimination laws.
“Specifically protecting freedom of religion would be out of step with the treatment of other rights,” the report found."