Aboriginal and Torres Strait Islander intended parents considering surrogacy

Yesterday the High Court in Love v Commonwealth decided by a 4: 3 majority that Aboriginal (and necessarily Torres Strait Islander people) if they were not citizens under the Australian Citizenship Act 2007 were nevertheless allowed to live in Australia and could not be deported. The case arose concerning two men, Mr Love and Mr… Read More »Custom Single Post Header

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Aboriginal and Torres Strait Islander intended parents considering surrogacy

Yesterday the High Court in Love v Commonwealth decided by a 4: 3 majority that Aboriginal (and necessarily Torres Strait Islander people) if they were not citizens under the Australian Citizenship Act 2007 were nevertheless allowed to live in Australia and could not be deported.

The case arose concerning two men, Mr Love and Mr Thoms who were in immigration detention. The Government was seeking to deport each of them. Both were born outside Australia. Both claimed they were Aboriginal. The Court accepted that Mr Thoms was Aboriginal, but did not decide the issue concerning Mr Love- leaving the Federal Court to review the evidence and come to the decision about whether or not he was Aboriginal. In essence if the Federal Court after further review of the evidence found that Mr Love is Aboriginal, he can stay; if not, he will have to go.

The case has implications for surrogacy practice. Where intended parents live outside Australia, and undertake surrogacy outside Australia (such as the US or Canada) and identify as Aboriginals or Torres Strait Islanders, their children may be able to live in Australia because of their special status.

If anyone is considering taking advantage of the High Court decision, then they ought to get expert legal advice first. It is clear that the lengthy High Court decision has lots of bells and whistles. Each of the four member majority had their own reasons for reaching that decision- and not all views match up.

Things to Read, Watch & Listen

Forced Marriage

On November 1st 2023, Accredited Family Law Specialist and Page Provan Director Stephen Page presented a paper at the Brisbane Zonta Club about forced marriage. I acknowledge the Jagera and Turrbal peoples, on whose lands we meet today, their elders, past, present and emerging. Ruqia Hidari was aged 21 and living in Victoria, when, according to police,… Read More »Forced Marriage

ACT Government Surrogacy Bill

The ACT Government has today introduced a bill to amend the ACT’s surrogacy laws. The proposed changes are more incremental than fundamental. They include allowing a single person to undertake surrogacy, for the surrogate to be single if needed, a requirement for legal advice and counselling beforehand, a written agreement being required, that traditional surrogacy is… Read More »ACT Government Surrogacy Bill

Planning to resolve: ADR in ART

ADR can help resolve disputes in ART cases. ADR is not limited to mediation and arbitration. Other types of informal dispute resolution can resolve disputes. When assisted reproductive treatment cases go off the rails, they can have the next level of bitterness and volatility. There can be a keen sense of betrayal when things don’t… Read More »Planning to resolve: ADR in ART