In March I presented to the 21st annual Miller du Toit Cloete/University of Western Cape family law conference, about international surrogacy law.
Here is my presentation:
21stANNUAL FAMILY LAW CONFERENCE 2018 CAPE TOWN
Australian and World Developments in ART Law
Thank you for having me back! I was privileged to speak to this conference in 2016 and have now returned for more. Having experienced level 6 water restrictions (followed by a devastating flood), I feel right at home!
I thought I would start with where Australians have gone in the last two years. Australians are world travellers. Just under 50% of our population are migrants or the children of migrants. The nature of Australian regulation with surrogacy and gamete donation has meant that Australians go overseas in considerable numbers.
In the last two years, clients of mine have considered, attempted or completed surrogacy in the following countries:
· United States.
· UK (UK residents);
· Cambodia (where surrogacy has been banned since October 2016);
· China (where surrogacy is banned);
· India (where surrogacy is only available to Indian citizens);
· Laos/Thailand (where by an under the counter method surrogacy is happening in Laos, but controlled from Thailand);
· Nepal (where surrogacy has been banned since August 2016);
· Sri Lanka.
· South Africa.
Since I was last here two years ago, there have been dramatic developments concerning surrogacy around the world:
· There is a theme of developing countries, after having little or few systems and rules in place concerning surrogacy, ending up at a crisis point at which point a knee jerk reaction is taken and all surrogacy is banned, often trapping the surrogates and intended parents halfway through pregnancies. This pattern has played out in India 2012, 2014 (so far as Australians were concerned), 2016; Nepal 2016; Mexico 2016; Cambodia 2016/2017.
Following the Baby Gammy saga and the son of the Japanese billionaire who apparently had between 13 and 16 children born through parallel surrogacy journeys in Thailand, that country was the prototype as to how to react to surrogacy:
1. Have no or few rules about surrogacy;
2. Have poor governance systems so whatever rules there were, were evaded.
3. Becoming embarrassed internationally about what is happening in that country.
4. React in a knee jerk manner typically by banning all surrogacy or making the rules so prescription that it is extremely difficult to do any surrogacy there.
5. Then making an example of those who have undertaken surrogacy there or promoted it there.
LGBTI activists in Thailand have been critical of the inability under the Thai rules for gay couples and single men to undertake surrogacy in Thailand. They are seeking to influence the Thai Government to alter the rules so that Thai nationals who are not married are able to undertake surrogacy there.
After Thailand took its action, Nepal by interlocutory and then final injunction in its Supreme Court banned surrogacy. The challenge to surrogacy in Nepal Supreme Court, illustrated some of the practices in that country:
· There were no laws about surrogacy in the sense that there were no Acts of the Nepal Parliament.
· Instead, Cabinet decided, based on the model in India that it would be a good idea to have surrogacy, apparently because it was a good foreign exchange earner.
· However, they were concerned to ensure that Nepalese women weren’t surrogates. The effect of course was that Indian women travelled across the border to be surrogates in Nepal – and women from Nepal travelled to India to be surrogates.
· No real thought had been given as to how birth certificates were to be created, so it appears that some hospitals at least made it up as they went along.
Following that case, there was then a constitutional challenge in the Supreme Court of India. The Indian Government waved the white flag to the challenge and then indicated by administrative fiat that there would be restrictions on surrogacy in India – requiring the intended parents to be Indian citizens and married couples. Therefore no visas would be given to foreigners to undertake surrogacy in India. Laws would be passed to ensure that surrogacy was altruistic. Despite that bold pronouncement, India still hasn’t passed laws through its parliament. I have acted for Indian couples living in Australia who have undertaken surrogacy in India. It can be very tricky for them to comply with both the Indian regime and the Australian legal regime.
With great fanfare, in October 2016 the Cambodian Government announced that all surrogacy in Cambodia would be banned from that point on. In a space of two years surrogacy in Cambodia had started from nothing to having a number of clinics and 19 surrogacy agencies with intended parents coming from various western countries such as Australia and the United States, but primarily as I understand it single men in China.
One agent, Tammy Davis-Charles, an Australian living in Bangkok, continued after the announcement to have websites announce that surrogacy in Cambodia was safe and in effect come to Cambodia for surrogacy. Ms Davis-Charles had previously promoted westerners going to Thailand for surrogacy and indeed after the Baby Gammy and Japanese dad scandals hit Thailand, the Junta announced the ban, she continued to say to come to Thailand for surrogacy.
In November 2016, Ms Davis-Charles travelled to Cambodia – where she was arrested. She is the only person to have been arrested by the Cambodian Government. She was subsequently charged and convicted of people trafficking and forgery offences. Two accomplices were also convicted. Ms Davis-Charles unsuccessfully appealed her sentence. At the time of preparation (7 February 2018) she remains in a Cambodian prison. None of the other players were charged. It is clear that the Cambodian Government wanted to make an example of Ms Davis-Charles and send a message to everybody else.
Instead, attention moved north to Laos. Dr Pisit has established a maternity hospital in Laos. This has coincided with the rise of surrogacy in Laos. Dr Pisit was the doctor in the Baby Gammy case. To recap, Mr and Mrs Farnell came from Western Australia to undertake surrogacy in Thailand. Mr Farnell was a convicted paedophile, a fact not known to the surrogate Ms Chambua. Ms Chambua illegally put her age up to be a surrogate – a matter that does not appear to have been checked adequately by the clinic. Twins were conceived. One child, now known as Baby Gammy, was diagnosed with Downs Syndrome and a heart condition. The other twin, Baby Pipah, was well.
Doctors suggested, according to the evidence in the court casethat they obtain an abortion of Baby Gammy and that this wasn’t possible in Thailand as it was against the law but that Mr and Mrs Farnell could travel to China where apparently doctors will do anything for money. Mr and Mrs Farnell couldn’t contemplate doing so.
The story as played out in the media was that Mr and Mrs Farnell had abandoned Gammy and taken only Pipah. The Court case determined that instead Ms Chambua fell in love with the idea of having a son and wanted to keep him – and did so. The children were born at the time of great unrest in Bangkok, in the lead-up to the coup. Mr and Mrs Farnell received advice from an Australian official that they and Pipah needed to leave Bangkok for their safety.
Dr Pisit was also the doctor who had arranged between 13 and 16 parallel surrogacy journeys for a 24 year old Japanese multi-millionaire, Mitsutoki Shigeta. Whilst Thai authorities indicated that they would prosecute, ultimately it would appear that they did not take any action.
In April 2017, Thai police arrested a man suspected of smuggling semen for surrogacy across the Laos border. The requirements for surrogacy in Thailand are that the intended parents must be married, one of them is a Thai citizen, that the surrogacy is altruistic and undertaken by a relative.
As I understand surrogacy in Laos, it works like this:
1. The man consults a doctor in Bangkok to see if he is medically suitable.
2. He then travels to Laos to provide his sperm.
3. A Thai woman is recruited as an egg donor. She then travels to Laos to donate.
4. A Thao surrogate is then recruited to travel to Laos, where the IVF and implantation occurs.
5. She then returns to Thailand and gives birth, naming the intended father as the father on the birth certificate, but without any reference to surrogacy.
SURROGACY IN EUROPE
Europe has not changed its rules about whether or not surrogacy is undertaken there, but there have been a series of Court cases (and in the case of Ireland likely statute changes) concerning surrogacy:
In the UK it is necessary for only a couple to undertake surrogacy. In 2017 a single man obtained a declaration of incompatibility as to his inability to obtain a parental order – because he was single. It is likely that the law will alter in the UK in the near future to ensure that singles will be able to undertake surrogacy.
The complaint that I have heard, long and loud from the UK is that with the altruistic model of surrogacy in the UK, a surrogate can change her mind at any time after birth, for any reason, and can refuse to either hand over the child or to consent to the making of a parental order. So far as the former is concerned, there are remedies as to who has the care of the child by way of Court order – but for the transfer of parentage, there are no remedies. The surrogate’s refusal to transfer might be legitimate, capricious or extortionate – but there is nothing that intended parents can do to stop that.
That same model has been exported to Australia and in a small number of cases the same problems have been identified in Australia.
Following the marriage referendum, where the No campaigners asserted that a vote for gay marriage was to allow gay couples to have babies via surrogacy, there has been a push, ironically enough, to allow surrogacy there. A review is currently under way. It is unclear if surrogacy laws will be non-discriminatory, and whether a UK style law will be passed, or a more broad US style law.
The Court of Cassation, France’s highest Court, has recognised that although French public policy is manifestly anti-surrogacy, children who have been born through surrogacy in the United States and recognised as the children of the intended parents by Court order there, ought to have their identity protected and therefore are able to obtain French identity documents. A French colleague, Caroline Mercary, has been resolute in bringing case after case for intended parents challenging these rules and was successful on this occasion.
There have been two court cases out of Germany – one in which a gay couple who underwent surrogacy in the United States were recognised as the parents by Germany’s highest court and another subsequent case in which another couple who underwent surrogacy in the United States were not. I am told that the latter decision was an aberration- but we shall see.
The European Court of Human Rights dismissed an appeal by a married couple who had undertaken surrogacy in Russia and on their return to Italy had had the child taken off them by authorities – because of the Italian ban on surrogacy.
By contrast, a gay couple from Italy who had undertaken surrogacy in Canada, had their parentage of the child recognised by an Italian Court.
A Romanian couple have recently successfully obtain an award of damages from the European Court of Human Rights when they were denied access to their embryos by Romania. The judgment makes plain that seemingly every bureaucratic obstacle was put in their path in order to prevent them using their embryos.
As I said above, I have had clients consider undertaking surrogacy in South Africa (one was an Australian/South African citizen) and consider or undertake surrogacy in Ghana, Kenya and Nigeria.
When I was last here, I visited Cape Fertility Clinic. At that stage I was told that the clinic saw 3-5 Australian couples per business day for the purposes of seeking egg donation from South African donors. Cape Town is not an easy place to get to for much of Australia. From Brisbane, for example, it takes about 24 hours. Australians have travelled all over the world for egg donation, for example to all the usual surrogacy countries but also to Argentina, Spain, Cyprus and of course South Africa. The fact that the demand is so great illustrates the shortage of donors in Australia – which are in turn caused by a requirement of our laws that donors must be altruistic, punishable by up to 15 years imprisonment if there is a breach. I have heard from clients and there have been media reports that the shortage of egg donors in Australia is so extreme that would-be donors or their partners have at times sought to extort desperate intended parents.
As was made evident to me at this conference in 2016, Ghana has no laws about surrogacy to which my response was “get laws”, along with a description of what those laws ought to contain.
Recently, clients of mine who were migrants from Ghana, underwent surrogacy in Australia. They are a heterosexual married couple. The intended mother had fibroids, which made it extremely difficult, if not possible for her to fall pregnant. Nevertheless, try she did, with the aid of repeated surgery- both from natural conception and IVF. She remained unsuccessful.
Not satisfied with that, she spoke with each of her sisters (who remained in Ghana) about whether they would be prepared to be surrogates. Each were prepared to be surrogates, but the problem was that Australia’s migration laws made it extremely difficult for anyone from Ghana to travel to Australia to be a surrogate – even for a family member. Consideration was given to whether IVF be undertaken in the United States and the surrogacy journey occur there, but similar migration problems arose.
After about two years, the migration problems were resolved by one of the sisters travelling to Fiji to study and from there being able to travel to Australia for the purposes of surrogacy.
Before that was attempted, attempts were made in Ghana for surrogacy. Embryos were created from my clients’ gametes. My client and her sister were then given fresh transfers of those embryos. Apparently frozen embryo transfers do not occur in Ghana, or at least not with that clinic. To up the odds of each woman getting pregnant, each woman was implanted, in parallel journeys, one as the mother – and one as the surrogate for her sister and brother-in-law – with three embryos!
Neither my client nor her sister fell pregnant.
With that attempt out of the way then it was an Australian surrogacy journey to be undertaken.
This was particularly complex in terms of the advice and contingencies that had to be provided for because it was unclear:
· If the surrogate could remain in Australia and give birth in Australia.
· She might give birth in Fiji. Consideration had to be given to the laws of Fiji (which are silent about surrogacy but contain laws about adoption including an offence for payment for adoption).
· Fiji added another complication as it is a known location for Zika virus. Sooner or later, this virus will visit Africa and you will have the fears of America, Oceania and South East Asia that if a pregnant woman is infected with Zika virus (even possibly through IVF) this can result in an 80% or more chance of brain deformation for the infant. A truly horrible disease.
· The fall-back position was the surrogate giving birth in Ghana.
· If the child were born in Fiji or Ghana, then working out what citizenship the child had, what were the relevant parentage presumptions and how would the child make its way to Australia to become an Australian citizen and child of the intended parents.
Kenya has a lack of laws concerning surrogacy but allows adoption. Following the clampdown in Asia, moves are under foot currently to ensure surrogacy in Kenya. Ukraine/Georgia based New Life is a surrogacy agency that has typically set up agency offices in developing countries ahead of any clampdown in that country stopping surrogacy there. It has done so in India, Thailand, Cambodia and Mexico, for example. It has now set up in Kenya. In India, for example, it arranged for egg donors to come from either South Africa or Ukraine. I heard anecdotal stories that South African egg donors flew to India and a couple of them had near death mishaps arising from being given too high a dosage of drugs in the lead up to the donation and therefore having ovarian hyperstimulation syndrome. A woman who has ovarian hyperstimulation syndrome can produce up to 60 eggs, but may die in the process. As the Mayo Clinic says:
“Too much hormone medication in your system can lead to ovarian hyperstimulation syndrome, in which your ovaries become swollen and painful. A small number of women may develop severe OHSS, which can cause rapid weight gain, abdominal pain, vomiting and shortness of breath. Complications may include:
· Fluid collection in the abdomen and sometimes the chest;
· Blood clots;
· Kidney failure;
· Rarely, death.”
I am notasserting that New Life was necessarily associated with those South African donors.
Currently I have an Australian couple of Nigerian background undertaking surrogacy in Nigeria. Surrogacy is not specifically recognised under Nigerian law, but adoption is.
A CALL FOR ACTION IN AFRICA
As certain as night follows day, there will be an increase in demand for surrogacy throughout Africa. Sooner or later IVF services will be available throughout the length and breadth of Africa, if they are not already available. There need to be clear laws regulating sperm, egg and embryo donation, as well as surrogacy. Failure to do so by African governments will result in what we have already seen in Asia and Mexico – scandal with international embarrassment to the country concerned followed by a knee jerk reaction.
A template for these laws would be:
1. That compensation be allowed to be paid to egg donors but that it be capped at a rate set out in regulation which is high enough to encourage women to be egg donors but not too high where they might be exploited.
2. That embryo donation be altruistic only.
3. That egg and sperm donors have counselling from a qualified professional first who is a counsellor trained in infertility issues, to properly screen that potential donor.
4. That the model for treatment of that donor be based on the donor’s best interests being the first priority – so that the donor is not taken advantage of financially or in any other way and that his or her health is not placed at undue risk.
5. That records be kept so that the child has the ability upon reaching the age of majority (such as 18) to be able in a way if necessary assisted by counsellors, to be able to locate the donor.
6. There are parenting presumptions making it plain that the intended parents will be the parents, not the donor.
7. That any potential surrogates are able to be compensated, but again compensated in a manner that is not too low or too high that in either way they might be exploited. There ought to be regulated caps.
8. A model that allows compensated surrogacy should still allow altruistic surrogacy by friends and family. The Indian model which was focused on commercial surrogacy perversely made it very difficult for altruistic surrogacy to occur there. Hopefully that has now changed.
9. Again, the surrogate should be thoroughly screened by an appropriate counsellor experienced in infertility issues and the dynamics of surrogacy.
10. Screening should also be undertaken of the intended parents. A report as to the screening should be provided to the relevant clinic and all parties.
11. Any surrogacy agreement needs to be in writing. The intended parents and the surrogate (and her husband or partner if any) need to have independent legal advice so that they understand the legal ramifications of entering into the agreement.
12. If the surrogate and her husband are not fluent in the language in which the agreement is written, then simultaneous versions of the agreement should be provided side by side (for example, for a surrogate in Kenya, the left side of the page might be written in English and the right side of the page might be an identical version in Swahili). Interpreters will be provided if required. If the surrogate or her husband are unable to read, it will be a requirement to place at the end of the agreement that that was the case, that a nominated person read out the agreement, and that the surrogate or her husband appeared to understand the agreement- then requiring the nominated person to sign and date having undertaken that procedure.
13. Preferably, that the identity of all parties in the document has been established. There have been cases of identity fraud in ART in the US, Europe and Australia.
14. The surrogacy agreement must be signed before implantation occurs.
15. The clinic undertaking surrogacy must be registered with the government so that if it breaches the rules, its licence to undertake ART work can be revoked. The Australian experience is that doctors are very keen to comply with licence conditions.
16. During the course of her pregnancy and childbirth, the surrogate should have the same rights as any other woman to control her pregnancy and childbirth. She ought to be in charge of her body.
17. Either before the child is born (as occurs in South Africa) or after the child is born, there is a mechanism for transfer of parentage from the surrogate (and her partner) to the intended parent or parents – and that this mechanism be only by way of judicial order, so that there is judicial oversight as to the whole process. I am not particularly concerned about whether the process is pre-birth or post-birth, although the former could lead to pressure on surrogates, and the latter could be characterised by the surrogate seeking to not consent to the surrogacy (as has been complained of as to some surrogacy journeys in Kenya). I have seen pre-birth processes work in places such as California, and post-birth processes work in places such as Minnesota, Hawaii, Australia and Canada. Sometimes attorneys in pre-birth States in the US are keen advocates for their model; and attorneys in post-birth States in the US and Canada are keen advocates for their model. Having seen both, I don’t see that one has that much more magic than the other.
18. The best interests of the child should be the paramount concern of the Court, consistent with the International Convention on the Rights of the Child (which every nation has ratified, excepting the United States).
19. If a post-birth regime is taken up, then a post birth report assessing the child, the intended parents, the surrogate and her partner should be provided to the Court before the Court makes any order.
20. Once the order for transfer of parentage has occurred, then birth records should be altered to reflect the intended parents as the parents of the child.
21. Citizenship laws should align with the change of parentage.
22. In the context of a surrogacy arrangement that may result in the Court sanctioned transfer of parentage of a child born as a result, to establish procedures to ensure parties to the arrangement understand its nature and implications and to safeguard the child’s wellbeing and best interests.
23. A child born as a result of a surrogacy arrangement should be cared for in a way that:
a. ensures the safe, stable and nurturing family and home life;
b. promotes openness and honesty about the child’s birth parentage;
c. promotes the development of the child’s emotional mental, physical and social wellbeing.
24. The same status, protection support should be available to a child born as a result of a surrogacy arrangement regardless of:
a. How the child was conceived under the arrangement;
b. Whether there is a genetic relationship between the child and any of the parties to the arrangement;
c. The relationship status of the persons who become the child’s parents as a result of a transfer of parentage.
25. The long term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted.
26. The autonomy of consenting adults and their private lives should be respected.
The Hague Conference on Private International Law has continued with its project as to a Hague Convention as to private international law issues to do with children including international surrogacy arrangements. There have been several meetings of a working group of 20 experts from around the world (in Australia’s case, Chief Justice Pascoe of the Family Court of Australia). The next meeting occurred in February 2018. At the time of preparation of this paper (in January and February) I wasn’t aware of the outcome of that working group and its recommendations but hopefully I will be in a position to advise the conference. In essence, there is a long term project to have a convention. I don’t know the form of the convention or how long it will take to be given effect. South Africa is a party to the working group. It is expected that the focus of the convention will be on the status of the child, not that of the surrogate or the intended parents.
Overview of Australian ART law
There are, quite simply, a myriad of laws concerning ART and surrogacy within Australia. Those laws include:
· The regulation of IVF clinics.
· The regulation of the use of human tissue.
· The prohibition of human cloning and similar practices.
· Surrogacy regulation.
· Family law and parentage presumptions.
· Citizenship and passports.
Australia – The Starting Point
Australia is a Federation. Under our constitution, the Federal Parliament is given power to pass laws about specific topics. Otherwise, the States are empowered to pass laws about any subject. Aside from our Federal Government, we have six States and two Territories which are (going clockwise from the north east or top left of Australia): Queensland, New South Wales, Australian Capital Territory, Victoria, Tasmania, South Australia, Western Australia and the Northern Territory.
Some of our laws concerning ART are Federal laws and some of them are State and Territory laws.
Regulation of IVF Clinics
IVF clinics are regulated under a series of laws. Aside from laws generally regulating doctors, there are additional laws about certain practices (including human tissue and human cloning). Every IVF clinic in Australia is required to be regulated by the National Health and Medical Research Council and the Reproductive Technology Accreditation Committee through a combination of the National Health and Medical Research Council (which is a body of the Federal Government) and the industry association, the Fertility Society of Australia.
Every IVF clinic is therefore subject to licensing guidelines issued by the National Health and Medical Research Council called Ethical Guidelines on the Use of Assisted Reproductive Technology and Clinical Practice and Research (2017). These Guidelines in turn are overridden where there are specific laws concerning the clinics. Four States – New South Wales, Victoria, South Australia and Western Australia have Assisted Reproductive Treatment Acts which then specifically regulate the whole or part of ART in that State. The other jurisdictions: Queensland, the Australian Capital Territory, Tasmania and the Northern Territory do not and instead rely on the National Health and Medical Research Council Ethical Guidelines as the form of regulation.
The rules between each State can vary considerably. For example, in the NHMRC States the cap on how many families may be formed from a specific donor is a reasonable number. In the past that has been interpreted as being 10, consistent with the most generous State in its Assisted Reproductive Treatment Act, that of Victoria. New South Wales and Western Australia have a cap of 5 which may in fact mean 4 families other than that of the donor. The interpretation of what happens with lesbian couples has been inconsistent. Some clinics have taken the view that they are a couple (and therefore one family). Others have taken the view that because they are two women, and there is the possibility if they separate each may still want more children, then they should be treated as two families. If the latter applies, then a donor on the lowest cap in effect might only donate to three families (two other families and the lesbian couple).
Human Tissue Legislation
There is a nationwide scheme to regulate the use of human tissue, set out in State and Territory legislation. In particular, there is a prohibition on the purchase of human tissue (including eggs and sperm) with some limited exceptions.
In most Australian jurisdictions there is a long arm law, i.e. a law that extends the jurisdiction of that State in some way overseas, so that if an Australian intended parent undertakes egg donation overseas, they have to be careful that they don’t inadvertently commit an offence back home punishable by up to 15 years imprisonment.
There are at times subtle differences between Human Tissue Acts or Transplantation and Anatomy Acts (different names but the same beasts) from State to State. What this can mean- is that the drafting in an egg donor agreement in California, depending on the words used – can result in an exception to the offence in the Australian State’s legislation, or not. The devil, as often with the law, is in the detail.
There is a nationwide scheme of Federal, State and Australian Capital Territory legislation (Northern Territory is covered by the Federal legislation) prohibiting the payment to any egg, sperm or embryo donor of any consideration other than reasonable expenses, failing which there is a maximum term of imprisonment of 15 years.
The long arm laws apply to most State human cloning laws.
Many Australians have inadvertently breached these laws – but not one person to my knowledge has been prosecuted.
Each Australian State and the Australian Capital Territory have passed laws regulating altruistic surrogacy and banning commercial surrogacy. The Northern Territory has no laws about surrogacy. In practice, people in the Northern Territory who wish to undertake surrogacy go interstate or overseas because the only IVF clinic in the Northern Territory operates according to South Australian rules and will not facilitate surrogacy in any form in the Northern Territory because there is no legal ability to alter the parentage.
The process for surrogacy in Australia goes along these lines:
· There is a written surrogacy arrangement (although it can be oral in the Australian Capital Territory or Victoria).
· It is entered into between the intended parents and the surrogate and her partner (and Western Australia as well the donor or donors).
· It is entered into before the surrogate is pregnant. [The phrase in Queensland is that it is entered into before the child was conceived. Conceivedwas interpreted by the first ruling in the world as the act of pregnancy, not cell division.]
· Independent legal advice is given to the intended parents and the surrogate and her partner (and Western Australia the donor or donors also).
· Counselling/screening is undertaken by a counsellor with all parties before the surrogacy arrangement is signed.
· The surrogacy arrangement is not legally binding. [The arrangement may be binding about the payment of expenses.]
· In two States, Victoria and Western Australia, the approval of a State regulator is required before the surrogacy arrangement can proceed.
· In all States, typically a clinic will require its Ethics Committee to give approval before the surrogacy arrangement can proceed (although there is no requirement under legislation for there to be an Ethics Committee).
· When the child is born, the child is presumed that of the surrogate and her partner.
· Typically between 28 days and 6 months after birth, the intended parents must apply to a Court for a transfer of parentage from the surrogate and partner to them.
· The Court in making the order transfers parentage, which is then given effect to in alteration of the birth register.
· Surrogates must be above the age of majority in all places and in some States all parties must be 25 and older.
· In Queensland, New South Wales and South Australia there is post birth counselling or assessment undertaken before any judicial decision is made.
There are complications if intended parents live in a different State from that of the surrogate, as each State has its own rules and often there are conflicts of laws between the various States as to the rules to be applied.
There is a shortage of surrogates, with the result that by far most children (as best I can determine it, about a ratio of 6 or 7 to 1) born through surrogacy to Australians are born overseas.
Queensland, New South Wales and the Australian Capital Territory specifically criminalise those undertaking commercial surrogacy overseas. Western Australia and South Australia are grey areas as to undertaking surrogacy overseas. As the Baby Gammy case, Farnell and Chambuamade plain, it may be an offence in Western Australia to undertake surrogacy overseas.
For people living in Victoria, Tasmania and the Northern Territory, it is lawful for them to undertake surrogacy overseas, even if it is commercial.
In 2014 then then Chief Justice of the Family Court of Australia, Diana Bryant and the then Chief Judge of the Federal Circuit Court of Australia, now Chief Justice of the Family Court of Australia, John Pascoe, called for their appeal of the extraterritorial laws, saying that they were ineffective, were not enforced, that no-one was being prosecuted and that as a result they were making a mockery of the law because they were being ignored. No action has been taken to repeal those laws.
Instead, in 2015 South Australia amended its laws to make it harder for people to go overseas. There has recently been a Bill before the South Australian Parliament to make it even harder for people to undertake surrogacy overseas since the 2015 amendments. That Bill has lapsed due to an upcoming election in South Australia. Whether it will be renewed in the new Parliament we will wait and see.
Challenges for Australians undertaking surrogacy overseas
The challenges for Australian intended parents are to ensure:
- They comply with the myriad of Australian laws concerning human tissue, human cloning, surrogacy, citizenship and passport – where those laws apply.
- Ensure that their child is able to be brought back to Australia.
- If possible, achieve recognition as parents.
DISCRIMINATION IN ART
Following criticism at the United Nations, on 1 August 2016, exemptions that were allowed under the Federal Sex Discrimination Act for State laws which discriminated against LGBTI people and the provision of services, employment, housing etc were removed (with the exception of Western Australia where the exemption was removed on 1 August 2017).
Nevertheless, there appear to be pockets of discrimination that apply in ART:
· The Australian Government is very generous in funding ART through our universal health scheme, Medicare. It is not unknown that women have had up to 36 IVF cycles partly funded by the taxpayer. For the taxpayer to provide a government rebate, the couple must be considered to be infertile. The classic definition of infertility is that of a heterosexual couple who are unable to conceive after trying consistently through unprotected sexual intercourse over 1 or 2 years. A rebate will only be paid if the doctor is of the view that the person is infertile. Some doctors still follow that classical definition, which means that single people and LGBTI couples may not be eligible for the rebate, costing them thousands of dollars. Other doctors consider those couples to be infertile. Intended parents won’t know the outcome until they talk to the doctor. Recently I saw online a discussion amongst intended parents about which clinics/doctors did provide the rebates for gay intended fathers, and those that did not.
· There is an exemption for surrogacy. The rebate won’t be provided for surrogacy. There are differing opinions about the regulations. Some are of the view that the effect of the regulations is that the rebate won’t be paid once a surrogacy arrangement has been signed. Others are of the view that if the doctor or clinic suspects that there will be surrogacy (for example a gay couple walks into the room…) then the rebate is not payable. The cost for a couple can be large- making the difference per cycle from A$4-5,000 out of pocket with the rebate, to up to A$17,000 out of pocket without the rebate.
Section 45A of the Anti-Discrimination Act 1991 (Qld) allows ART clinics to discriminate on the basis of sexuality or relationship status. I have not seen this discrimination occur in Queensland, which would in any event be in breach of the Sex Discrimination Act, but the provision still remains on the statute books. It came about some years ago following a lesbian (ultimately unsuccessfully) taking an IVF to clinic for alleged breach of anti-discrimination laws in preventing her from receiving treatment.
New South Wales
There is no lawful discrimination.
There is no lawful discrimination.
Since 2004 any donor in Australia will be able to be located by the child after the child turns 18- if the donor conceived adult seeks to do so. There is a process to allow counselling first. The donor conceived adult will, with the consent of any other donor conceived siblings, also be able to find any donor conceived siblings (and vice versa).
At the time of the last conference in 2016, laws were passed in Victoria at the urging of a donor conceived woman who was unable to find the identity of her genetic father. At the time he donated, he did so entirely anonymously. Even though he donated anonymously, the laws are retrospective and therefore allow the donor conceived children (as adults) to find out who the donors were.
However, this has not occurred across Australia and in much of Australia donors may never be able to find out who their parents were. For example, it has been reported that in South Australia all the records of early donation were destroyed so those adults conceived through donation will neverbe able to find out who donated sperm or eggs.
Australian Capital Territory
It is a requirement of the Parentage Act 2004 (ACT) that the intended parents in a surrogacy arrangement must be a couple and the surrogate must be part of a couple. You cannot have a single intended parent in the ACT for a surrogacy arrangement nor a single surrogate.
All parties to a surrogacy arrangement must come from Tasmania. This can be dispensed with by a magistrate at the conclusion of the process (18 months or 2 years later). Given the small population base of Tasmania, and therefore a lack of surrogates in Tasmania, this can make surrogacy problematic there. There is no discrimination otherwise.
South Australia changed its laws in March 2017 following a recommendation from an independent inquirywhich was to the effect that there should be a removal of discrimination on ART for both singles and LGBTI couples. The law change allowed LGBTI couples to pursue IVF and surrogacy but did not allow single people trying to undertake surrogacy.
Furthermore, there is an allowance for registered objectors based on matters of conscience to refuse to provide treatment and be on a public register albeit with the requirement to refer to someone else who will provide treatment. It would appear that the South Australian Parliament misconceived its own laws because no doubt it was presumed by MPs that doctors would be the ones taking objection. The way the laws have been framed when looking at the relevant regulations is that the only people who can take objection are any of the four IVF clinics (none of whom would take objection due to competition from their competitors and also their view that everyone should be catered for). It is uncertain – absent a court challenge – how the South Australian law interacts with the Sex Discrimination Act.
Despite the clear removal of the exemption for Western Australia in August last year, Western Australia on its statute books clearly discriminates against single men and gay couples in pursuing surrogacy. ART is available without discrimination (except of course it wouldn’t be available to single men or gay couples due to the need for surrogacy), heterosexual couples, lesbian couples and single women can pursue surrogacy in Western Australia. In May last year I wrote to the WA Health Minister calling for removal of that discrimination. WA is now reviewing its ART and surrogacy legislation, including removal of the discrimination.
Due to a licensing condition an agreement between the Northern Territory and the sole IVF clinic at the Northern Territory, any doctors providing IVF in the Northern Territory are required to comply with the South Australian licenses.
In July 2015 South Australia amended its laws making it harder for people to go overseas and on their face requiring the consent of the Minister for Health to be obtained for any overseas surrogacy arrangement (whether commercial or not). The Minister in turn had to be guided by the State Framework for Altruistic Surrogacy and the Family Relationships Regulations. Despite it now being 2018, neither of these documents have yet been published!
HOUSE OF REPRESENTATIVES INQUIRY
When I was last here, a select committee of the House of Representatives was reviewing the laws on surrogacy. It handed down its recommendations in 2016 just before the Federal election. No action has been taken on its recommendations which included:
· A national non-discriminatory scheme of surrogacy laws.
· Those laws to regulate altruistic and ban surrogacy.
· To make it harder for those undertaking surrogacy overseas in any jurisdiction which had requirements less stringent than Australia. I note that the only place which has requirements as stringent as Australia is New Zealand. Therefore even Australians who go to the US or Canada for surrogacy would find their journey considerably longer and more expensive.
· Questioning whether it might be a good idea for any child born through surrogacy to have noted on their birth certificate the name of the donor (and the donor’s partner) and that of the surrogate and the surrogate’s partner. This was sought by donor conceived adults – but it would seem that inadequate consideration was given to toddlers and school aged children when their parents provide the birth certificate for enrolment or indeed 15 year olds who might have to provide their birth certificate on seeking employment.
Farnell and Chambua  FCWA 17
As I said above, this was the Baby Gammy case in which the Court ultimately found that the child Pipah should continue to live in Bunbury (a town a couple of hours south of Perth) with Mr and Mrs Farnell and not live with her brother Gammy in Thailand who is being cared for by the surrogate, Mrs Chambua.
If you want to read a case about how not to do surrogacy, it is a good illustration.
Bernieres and Dhopal  FamCAFC 180
Mr and Mrs Bernieres lived in Melbourne. They travelled to India for surrogacy. Mr Bernieres was the genetic father. An egg donor was the genetic mother. The surrogacy went well. The child was born, obtained Australian citizenship and returned home. Mr and Mrs Bernieres then applied to the Family Court for an order that they have parental responsibility for the child and that the child live with them. Each was easily obtained. They also sought an order declaring them to be the parents.
The trial judge, Berman J in 2015 declined that order. He said that there was a gap in the law of Victoria whereby the parenting presumptions about who was a parent did not apply to overseas surrogacy. The surrogacy was, although legal, non-compliant with the law of Victoria (which amongst other things required that IVF be undertaken in a Victorian clinic). Therefore, he refused to declare that they were the parents.
Mr and Mrs Bernieres appealed. A unanimous three member Full Court found that they were not the parents, in essence for the reasons that the trial judge had found.
The case has highlighted that under Australian law there are different standards about who is a parent. The effect of Bernieres and Dhopal is to emphasise that different statutes have different approaches about whether someone is or is not a parent. For example:
Family Law Act 1975
For people who went from Victoria overseas for surrogacy to contract based jurisdictions such as India, Cambodia, Thailand, it is clear that they are not parents under this legislation. However, it is not so clear if they are from another State or went to a jurisdiction where orders are made transferring parentage (such as the US or Canada). It is untested and uncertain.
Exceptions to Bernieres and Dhopal
There are four potential exceptions to Bernieres and Dhopal:
1. That the intended parents lived overseas, complied with the law overseas and were recognised overseas as the parents, in which case they would be recognised in Australia as the parents: Carlton & Bissett  Fam CA 143.
2. There was an adoption, as part of the surrogacy process, in which case they will be recognised as a parent under the Family Law Act: section 4. This may lead to an absurd outcome in which parent 1 (the genetic parent) might not, consistent with Bernieres and Dhopal be recognised as a parent; but parent 2, by virtue of a second parent adoption, will be a parent.
3. The intended parents come from South Australia and have obtained the permission of the Health Minister under the Family Relationships Act 1975 (SA).
4. They have obtained an order made in most parts of the United States and had it registered under section 70G of the Family Law Act with the Family Court of Australia.
If someone is not a parent for the purpose of family law, almost certainly they won’t be a parent for the purposes of inheritance. Therefore properly drawn wills need to be prepared to minimise risk.
Depending on child protection statues, the intended parents may or may not be recognised as parents.
1980 Hague Child Abduction Convention
Absent a court order, a person who is not a parent under family law does not have parental responsibility and therefore does not have rights of custody under the Convention.
Seemingly by way of insult, many people who would not be considered to be parents as a result of Bernieres and Dhopal will nevertheless be considered parents for the purposes of child support. In other words, they can’t be recognised as parents in their relationship with their child except if the relationship breaks down!
Someone may be a parent for the purposes of superannuation (retirement savings account). The monies in these accounts can be substantial, given Australia’s compulsory superannuation laws, so proper planning is required.
The practical test to determine if someone is a parent for the purposes of citizenship is if they are seen as a parent in the wider sense of the community (although the case dealing with this excluded surrogacy, it has been applied to surrogacy by the Department of Immigration, now the Department of Home Affairs). The basis of determining if someone is a parent is defined by genetics, OR whether someone is a parent under the Family Law Act OR if they are seen in the wider sense of the community as being a parent. Typically the last means that judgments obtained in the US or Canada identifying people as parents will be sufficient to identify them as parents for surrogacy. See my discussion about the Australian couple who went to Russia, below.
There have now been three cases where US surrogacy orders have been dealt with by the Family Court.
Re Halvard  FamCA 1051
The intended parents lived in the United States. The husband was an Australian citizen and the wife a US citizen. They underwent surrogacy in Tennessee. Prior to the birth of the child an order was made, the effect of which was that they were the parents under Tennessee law when the child was born. The connection of the couple was with New South Wales.
The child was born and obtained Australian citizenship. The couple sought to register the US surrogacy order in Australia, the effect of which would be that the couple would for all purposes be the parents of the child under Australian law. They were successful. This is the first time that any surrogacy order was able to be registered. Previous attempts had been made in 2013 in Carlton and Bissett which involved a South African man who obtained a pre-birth order naming him as the father under the Children’s Act prior to his twins being born. He had migrated to Australia and then sought that he be recognised as the parent. He ultimately succeeded under a comity argument but his first argument was that the South African order be registered in Australia because it was an overseas child order. The Court in that case held that it was an overseas child order, but it was unable to be registered because South Africa was not named in the list contained in the regulations. It is still not named. 48 of the 51 US jurisdictions are named.
Forrest J was of the view that a pre-birth order made in Tennessee is of its nature similar to a post birth order made in New South Wales or Queensland. His Honour is based in Brisbane.
In the exercise of discretion as to whether or not the court should register the US order, the solicitor for the parents said that the surrogacy arrangement was commercial within the meaning of both the Queensland and New South Wales Surrogacy Acts, but nevertheless it should be registered, in the best interest of the child. His Honour was of the view that the solicitor was mistaken and that it was not commercial surrogacy, but altruistic and that although generous, still remained reasonable costs for the surrogate. As it was altruistic, it was therefore able to be registered. If it had been commercial it may not have been able to be registered. The court ordered that the names of the solicitors who acted for the applicants not be published.
Re Grosvenor  FamCA366
The intended parents were an Australian couple living in the United States who underwent surrogacy in North Carolina. Forrest J registered the judgment. I acted. His Honour stated:
“Given that the applicants and their solicitor tell the Court that the child in this case was brought into the world with the assistance of an arrangement regulated by a commercial surrogacy agreement, I am clearly required to more deeply consider that proposition [if it’s commercial surrogacy the discretion might be refused] expressed by me only six months ago. The public policy context within which this consideration is set includes the fact that in Queensland, New South Wales and the Australian Capital Territory entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of course, I have already observed that Mr and Mrs Grosvenor reside in the USA and not one of those jurisdictions. Nevertheless, they have entered into a commercial surrogacy agreement and they seek the registration of the Court order that gives them the parenting rights over their child in this Court.
Having considered the matter further, particularly having regard to:
· the unique circumstance of this couple and the inability to biologically parent and carry their own baby;
· the well-regulated nature of the surrogacy arrangements entered into between the applicants and the surrogate notwithstanding its commerciality;
· the judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the woman who carried the baby for the applicants;
· the acceptance by the Australian Government of the US jurisdiction as a prescribed jurisdiction for the purposes of the registration of ‘overseas child orders’ made in Courts of that jurisdiction, thereby, I am satisfied, signifying the Australian Government’s satisfaction with the standard of the judicial processes that would have occurred in the making of the order; and
· the fact that the arrangements entered into, regardless of their nature, brought into the world a child who is a biological child of at least one of the applicants, the legal child of both of them, who is being loved and raised as their child, who is an Australian citizen, like her parents, will be coming back to live in Australia in the near future, and who has every right to expect that the legal nature of her relationship with both of her parents is appropriately recognised in this country of hers;
· I am satisfied that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicants.”
Sigley and Sigley  FamCA 3
On 10 January 2018, Forrest J registered another US surrogacy order, this time being for an Australian couple living in Los Angeles who had undertaken surrogacy in Texas. Texas, as was Tennessee and North Carolina, was a prescribed overseas jurisdiction.
Following the approach that his Honour took in Re Grosvenor, he stated:
“This is another case where the parties and the solicitor inform the Court that the surrogacy agreement entered into in the USA was a “commercial” one.
I am, as I considered I was in the earlier decision, clearly required to give consideration in the public policy context within which my discretion is being exercised. That context includes the fact that in Queensland, New South Wales and the Australian Capital Territory entry into “commercial” surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of course, I have already observed that Mr and Mrs Sigley reside in the USA and not one of those jurisdictions. Whilst they currently intend to return to live in Australia at some time in the future, it is not in one of the three jurisdictions just mentioned, but rather the State of Victoria. Nevertheless they have entered into a commercial surrogacy agreement and they seek the registration in this Australian Court of the American Court Order that gives them the parenting rights over their child. If they were “ordinarily resident” in Queensland, New South Wales or the ACT, they would have, prima facie, committed a criminal offence. However, as the applicants’ solicitor points out in his submissions, Victoria allows intended parents to enter into commercial surrogacy arrangements overseas and has not sought to criminalise such behaviour. Entry by the applicants into the “commercial” surrogacy agreement was lawful in the USA, particularly in the State of Texas where it was done and the Australian Government has not determined to criminalise entry by Australian citizens or residents into commercial surrogacy agreements overseas as, arguably, it could do.
Having given the matter my consideration, I am satisfied for all the reasons as I said in my earlier decision…that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicant. Different from that case though, in this case there are two children who are brought into life through the surrogacy arrangements and both of those children are the biological children of both of the applicants. Their gestational “mother” was their carrier who assisted their biological parents bring them into the world. The two children are both Australian citizens now as well, with legitimate expectations that the legal nature of their parent-child relationship with both of their loving parents is appropriately recognised in this country of theirs.”
The reference to legitimate expectations was a reference in my submissions that the High Court of Australia had said in Teoh’s case (1995)that although Australia was a party to the International Convention on the Rights of the Child, the Convention was not part of Australia’s domestic law. Any child or the parents of the child had a legitimate expectation, subject to any statute or regulation, that an officer of the Australian government would ensure that Australia would comply with its international obligations. Article 8 of the Conventionrefers to a child having a right to an identity. Jurisprudence from Europe in dealing with this Article, and similar provisions in the European Convention on Human Rights identify that the child’s family is that of the child and the intended parents.
His Honour then went on to say that the applicants were the de jure and biological parents of the children and “I have not been able to identify any reason why they should not be entitled to the registration of that Texas Court’s Order in this Court so their parent-child relationship with [the children] is recognised appropriately in this country as they desire and for the children’s sake.”
7 February 2018