Ethical Issues in surrogacy: contradiction or conundrum
Tuesday, August 20, 2019
On Friday I presented at the 6th annual conference of the Austrlaian Chapter of the Association of Family and Conciliation Courts in Sydney. Here is my paper:
ETHICAL ISSUES IN SURROGACY: CONTRADICTION OR CONUNDRUM
By Stephen Page[1]
A personal note
I am the father of three children. My two sons, now aged 28 and 26, were conceived, as they say, the old fashioned way, albeit my then wife and I each suffered infertility.
In July, my husband Mitchell and I were fortunate to have a baby daughter, Elizabeth, via surrogacy. We are both over the Moon with delight[2]. I am delighted to say that both our baby and our surrogate are in good health. Sleep is overrated!
My then wife and I were in our early 20s. She had terrible endometriosis that would cripple her for two weeks of every month. We met my wife’s gynaecologist who told us that the only cure was to get pregnant. I replied: “We are in our early 20s. We are broke. We want to be like everyone else and have a house and then have children.” The doctor replied: “What am I a financial planner? I am a doctor.” We started trying. Nothing worked. After a few months, my wife suggested that I have my sperm checked. I immediately rejected that with a flurry of finger pointing, noting that the problem was her endometriosis and that I had high quality sperm. In response to her suggestion that I needed to have the sperm checked, I immediately rejected it. Three further months of trying, I had my sperm checked. I had low motility sperm. Ever since I was about 4 or 5 years old I knew I wanted to be a father. I could not imagine life without being one. At that moment I questioned if I would ever become a father as opposed to when.
At this time I was a family lawyer in a fairly rough part of town. The women in that area were remarkably fertile. I wondered about many of those women and their former partners whether they should become parents when I couldn’t become a parent. I considered how unfair life was. I thought that God had cursed my body. I started to look at ceilings and ask God why he had cursed me so. It was completely irrational but an emotional reaction about the fear of never becoming a father.
My wife and I were about to undertake IVF. We got lucky. Our first child was conceived naturally, as subsequently was our second.
We later divorced. Many years later, my husband came into my life. He is younger than me. Shortly after we got together, he told me that he wanted to become a father. I quickly realised that I could not impose on him the pain that I experienced. I agreed that we would undertake surrogacy. This was not a decision that was taken lightly. Our surrogate approached us and said that she loved both of us and wanted to have our child as a surrogate. Both of us cried tears of joy. I also had the other emotion at exactly the same time that, “This happens to clients of mine!”
Our surrogacy journey has taken considerably longer than most. Everything has occurred in Brisbane. We have had a friend who is an egg donor. There were medical issues for both our surrogate and our egg donor. There were issues with one clinic, so we changed clinics. Our first pregnancy ended in a miscarriage. This was devastating. There is a recommendation in the WA surrogacy review that following a miscarriage there should be compulsory counselling. Counselling would have added to our burden, not lessened it.
The second pregnancy ended in an ectopic pregnancy with urgent surgery. I said to our surrogate before she had her operation “Whether we have a child or not is beside the point. I couldn’t imagine anything bad happening to you and I couldn’t live with myself if something bad happened to you.”
The third pregnancy has gone smoothly. After the miscarriage and the ectopic pregnancy, our surrogate has felt that she has let us down, even though there was nothing to feel why she should have let us down.
During the course of the pregnancy, we have got closer and closer. It has truly been during this journey an experience that many of my clients experience, namely a very magical, close, warm and loving journey. A very human experience, not a transaction. I am again experiencing sleepless nights of fatherhood. All is good with my world. We are yet to apply to the Childrens Court for an order transferring parentage to us. Our surrogate is single.
The hospital had a surrogacy policy, and did everything in its power to make us feel welcome. This extended, after the birth, to both Mitchell and I having a room in the maternity ward, with our baby daughter being in our care in that room. Our surrogate was in the next room. At all stages, Mitchell and I were included in every step. Either one of us or both of us attended each and every hospital appointment. There were many, as our surrogate chose to be a public patient. Every member of hospital staff was very warm towards us. The three of us, for example, attended the ante-natal classes together. Much of what was discussed there was not focussed on the unique needs of LGBTIQ people or those engaging in surrogacy. Hopefully that will change.
All went well until the night of when our child was born. Our child was born in the early hours of the morning. That evening, our surrogate was initially cleared to be discharged that night. Due to medical reasons (which have since resolved) it was necessary for Elizabeth to spend at least another night in the hospital. Our surrogate by this stage had been in the hospital for nine nights, and was anxious to be home with her child. The midwife had not come across a situation of a surrogate wanting to leave before the child. She checked with her superior – who then checked with her superior- who in turn phoned the duty roster executive. That executive turned up- who then checked with her superior executive, who in turn contacted a hospital lawyer. The advice that filtered back was that it was “advisable” that our surrogate not leave, because in the opinion of the lawyer, she was the only parent and needed to be at the hospital until the baby was discharged, as she was the only person who could authorise treatment. She could not authorise remotely, nor delegate. The hospital did not accept that Mitchell, as the genetic father, was a parent who had parental responsibility.
Our surrogate was hysterical, and extremely distraught. I felt as though she had been violated. She remained in the hospital overnight. My father’s maxim was that “Hospital time is not real time.” While we were all told that all would be discharged early the following morning, with various delays the discharge happened late the following afternoon.
It would appear that the hospital had not heard of Masson v Parsons, or if it had, had not applied it to this situation.
At all times, all three of us have considered the baby to be the baby of Mitchell and me- but the law deems our surrogate as the parent, a position she has never considered herself to be. There appears much merit – after having had this experience- with having court orders made pre-birth recognising intended parents as the parents, or following a checklist approach by which we would automatically be parents, as is proposed in the UK by the Law Commission, and as happens in British Columbia, Ontario and Illinois.
Pre-birth orders are commonly made in many parts of the United States, but also in Argentina and South Africa. An order in California, for example, will be made typically at 6 months’ gestation. It is made by consent. It will:
· Declare the intended parents to be the parents;
· Direct that the hospital and the birth registration authority be notified;
· Be stayed until the child is born.
History of surrogacy
Surrogacy has been with us, at least in a traditional sense, apparently since the time of Genesis, and in ancient Indian texts.
The recent rise of surrogacy has been with the rise of IVF. Following the birth of Louise Brown in the UK in 1978, doctors and scientists have worked on different ways to enable infertile people to become parents. This has involved the assistance of egg, sperm or embryo donors and, related to that, the rise of gestational surrogacy.
A parallel change in society has been the desire of LGBTI people to become parents. Whereas once they were unable to become parents whilst out, now those days are long gone. It is common, for example, for lesbian couples to access sperm either from known donors, or anonymous donors through IVF clinics. Gay male couples on the other hand access surrogacy – and have an expectation and desire along with everyone else to become parents. Transmen, as indicated from recent research, also have a desire to become parents, but in their case typically that will also be from donor sperm.
Those who want to become parents through surrogacy are a wide range of people:
· Heterosexual couples, both married and de facto
· Single men or single women
· Lesbian couples. Usually lesbian couples will not access surrogacy, as there is no need to do so, but I have had several cases.
· Gay couples. I have noticed that a majority of the gay couples that I am now seeing who undertake surrogacy are married.
· Trans or intersex people, whether single or in a relationship.
The two great surrogacy developments
The two developments that have led to legal change in Australia occurred in 1987 and 2006.
The first development
Baby M case
The Baby M case in New Jersey was the first litigated case in the United States in which surrogacy came to the fore. In essence, the surrogate who had been paid US$10,000 to have a child, wanted to hang on to the child. The New Jersey court held that the contract remained in place and the child would have to be given to the intended parents.
There was an immediate uproar. In New Jersey, for example, legislation was passed to outlaw that type of surrogacy arrangement, that legislation remaining in place until about 2017.
The reaction in Australia was to have legislation passed by each of the States and the ACT to prevent surrogacy occurring. The most prominent example was my home State of Queensland. Following a review by then Justice Demack of the Supreme Court, it was decided that all surrogacy, whether commercial or not, gestational or traditional, in Queensland or anywhere else in the world would be outlawed. Subsequently, the Surrogate Parenthood Act 1988 (Qld) was passed to that effect.
What the Act achieved was to drive surrogacy underground. This message was given to me loud and clear in my first surrogacy case in 1988. In my suburban office in Brisbane a client came in saying that she had been paid $10,000 by a couple, husband and wife, to have a baby. She had had the baby boy and wanted to know whether she could keep the money and the child. As the contract was in breach of the Surrogate Parenthood Act 1988, my advice was that it was void and that therefore the money lay where it fell. Given that she had the $10,000, she could keep it.
As to the second question, my advice was that she could keep the baby. This was a traditional surrogacy. Not only was the surrogate the birth mother, but she was also the genetic mother. I do not recall whether I asked whether the child was conceived via sex or an at-home insemination. She was the mother and was therefore likely to succeed in any application that came before the court. In any event, the intended parents were unlikely to bring any application to the court, because of the risk that they might be referred to authorities for prosecution.
As far as I know, the matter never went to court. I wonder whether that boy, who if he is still alive would be aged over 30, has ever been told the story of his conception.
These three adults did not have the benefit of legal advice or counselling before entering into the surrogacy arrangement. This was because if they had done so they may have realised that they were committing a criminal offence at that time.
Fast forward to 2016 to 2019
In 2019 I was the Independent Children’s Lawyer for a child in proceedings before the Federal Circuit Court. In 2016 the woman who became the birth mother reached an agreement with a friend of hers of 10 years and his male partner whereby she would become a traditional surrogate following an at-home insemination. In September 2016 three attempts at an at-home insemination occurred on the one day. There had been no legal advice or counselling for the parties prior to those at-home inseminations. It seems that the driver for there being no legal advice or counselling was a lack of money. Things were tight for the intended fathers.
Two weeks later, the would-be surrogate had her first scan. I note incidentally that this is a scan that would ordinarily happen at 10 or 12 weeks pregnancy. She learnt, she said to her horror, that her friend was not the father of her child, but the man who was the father of her child was a man with whom she had had unprotected sex on a one night stand in August 2016. Faced with this awful news, the intended father and his partner agreed that they would remain the parents to be under this informal surrogacy arrangement.
The surrogate knew at all times that she was pregnant. This was her sixth pregnancy. She was the mother to four children and had had a miscarriage. She knew what it felt like to be pregnant. The birth mother went through a charade of the at-home inseminations knowing at all times that she was already pregnant to someone else.
Two weeks before the child was due to be born, the would-be surrogate demanded of the intended father that his sister (her old friend) have nothing to do with the child. He was insistent that his sister although not a parent, was an aunt and would have involvement as an aunt. This was unacceptable to the would-be surrogate, who there and then summarily ended the arrangement.
The would-be surrogate then went on to a website to try and find intended parents. She found a woman online who said she (the woman) was a lawyer, and that there was a “highly qualified couple” who had been legally checked out. None of that was true. The woman was not a lawyer. The intended parents lived in the country. The wife had had a child from a previous relationship. They had had one child together but were unable to conceive any more children. The wife in particular had a burning desire to have another child. This would not be achieved unless it was by surrogacy or by adoption.
The wife flew to Queensland to meet the surrogate in the 48 hours prior to the induced birth. The surrogate immediately agreed that the child would be handed over. The child was handed over with joy on the part of the surrogate. It seems in the rushed circumstances and enthusiasm for handing over the child, less than adequate checks were undertaken as to the intended parents. They had a history of domestic violence (as did the surrogate in her previous relationship). The intended mother had as a child been the victim of incest. The relevant child protective services had removed one of the children of the intended mother from her care for a number of months after she was living with her stepfather, the man who had previously sexually abused her as a child. There were also issues of criminality on the part of the intended father, his having previously been convicted of assault. He had also engaged in heavy marijuana use in the past. The intended mother also had what she considered to be bipolar disorder (but was later diagnosed as borderline personal disorder).
The three parties (the would-be surrogate and the intended parents) agreed between them that the intended father should be named on the birth certificate as the father and the birth mother as the mother, with the intention in due course of a stepparent adoption order to be made in favour of the intended mother, so that the intended parents would be reflected as the parents of the child.
When the child was 9 months old, the intended mother moved with their three children to live briefly with the birth mother. This was done with the aim of enabling the stepparent adoption to occur in due course. The intended father remained at home interstate due to work reasons.
After staying with the birth mother, the intended mother was living a long way from home, experiencing financial difficulties and having a lack of social support. She had a breakdown, resulting in her hospitalisation. She gave her three children to the birth mother.
The intended mother was released from hospital when the intended father arrived to stay with and care for her. The other two children were returned to the intended parents, but the baby (who was now a year old) was not. The birth mother said that she wanted to keep the child.
The parents then commenced proceedings to have the baby returned to them. In the meantime, the birth mother (who said that she wanted the child to remain with her) had discussions with her GP with the intention that her GP adopt the child. The child was given to her GP for a weekend, which in the words of the trial judge was a “try before you buy”approach. The GP did not take the child, with the result that at trial the child remained living with the birth mother, who was in dispute with the intended parents.
Ultimately at trial the child was ordered to live with the intended parents and in effect have no communication aside from birthday cards and the like with the birth mother. The case is an illustration of three groups of intended parents who were desperate to have a child, each of whom were exploited to a greater or lesser degree by the birth mother. At least two of those families did not obtain legal advice on the way through. Their lack of money was a driving force in each case as to the decisions they made.
As the recent consultation paper by the UK Law Commissioners on surrogacy says[3]
“1.37 While surrogacy is now recognised as part of the range of assisted conception options, it is important to acknowledge that, in practice, it is not an option that is open to everyone. Surrogacy involves additional costs to other forms of assisted conception, in particular because of the payments that will, in most cases, be made to the woman who agrees to be the surrogate. Some intended parents know from the outset that surrogacy is the only way for them to have a child of their own (for example, women who know that they are unable to carry a child, or same-sex male couples). These intended parents will have the cost of surrogacy in mind from the time that they start planning their family. Other intended parents may have already funded multiple rounds of IVF treatment to try and carry their child before they turn to surrogacy. For these intended parents the financial strain can be much more significant.
1.38 In making our provisional proposals for reform we have been aware of the fact that an increase in the cost of surrogacy may mean that some intended parents who are able to access surrogacy presently, may be precluded from doing so in future. We think that any increase in cost is a significant matter to bear in mind as new law is developed. We also consider, however, that given the fundamental issues at stake in surrogacy, cost cannot be the sole determinant of any change to the law. All factors, including in particular the welfare of women who agree to be surrogates, and the welfare of the child, must be properly balanced in any reforms that are made.”
The second development
Senator Stephen Conroy and Paula Benson
In 2006 news broke that Senator Conroy (from Victoria) and his wife Paula Benson had been unable to have a child through surrogacy in Victoria due to its then arcane laws and that they had instead travelled to New South Wales to access surrogacy there. The then Commonwealth Attorney-General, Philip Ruddock, challenged each of the States to pass laws to enable altruistic surrogacy.
At that stage, only the ACT had laws that regulated altruistic surrogacy and criminalised commercial surrogacy.
Each of the States then held an inquiry and came up with their own model of legislation that in broad terms allowed altruistic surrogacy and criminalised commercial surrogacy.
With the exception of the Surrogacy Acts of Queensland and New South Wales (the latter being largely copied from the former), the laws in each State vary considerably so that interstate surrogacy arrangements can be quite costly due to the need to comply with inconsistent laws. Following the call by myself and others in the 2016 House of Representatives surrogacy inquiry, the inquiry recommended that there be national, consistent surrogacy laws that were non-discriminatory. There has not been a substantive response to the inquiry. There is no consistent law across Australia as to what is and what is not commercial surrogacy. What may be assumed to be commercial surrogacy may not be within the relevant definition. Conversely, what is seen to be altruistic surrogacy may be commercial surrogacy within the relevant definition.
Criminalising those who go overseas
There are currently four jurisdictions in the world where it is clear that going overseas for commercial surrogacy is a criminal offence at home. Those jurisdictions are:
· Hong Kong;
· Queensland;
· New South Wales;
· Australian Capital Territory.
It is also arguable that due to long arm laws in South Australia, undertaking surrogacy overseas there might be an offence. It is also clear that provided one of the elements of the offence of entering into a surrogacy arrangement that is for reward is committed in Western Australia, then the offence is committed for an overseas arrangement.[4]
Example: absurd legislative overreach
Luciano and Melba are a married couple, who for the last five years have lived in London. They do so on work visas. They are not permanent residents. Each was born and spent their lived before then in Sydney. They are Australian citizens.
Luciano and Melba decide that they will undertake surrogacy in the United States. It is not an offence in the UK or the US for them to do so.
Because they remain domiciled in NSW, if they enter a commercial surrogacy arrangement in the US as defined under the Surrogacy Act 2010 (NSW), then they commit an offence in NSW, punishable by a fine of up to $110,000 or 2 years imprisonment[5]. There is no time limit for prosecution.
Horror Surrogacy Cases
There have been some horror stories about surrogacy. These stories primarily occur:
· when there is no legal framework for surrogacy, so that the surrogacy journey occurs underground (as in my earlier example);
· where the parties feel that they are not in the position to obtain legal advice, due to funding issues (as in my 2019 court case);
· where surrogacy occurs in a developing country which has few laws that are enforced concerning surrogacy.
Some shocking examples of surrogacy gone wrong:
· Re Evelyn[6]. This was a traditional surrogacy between a married couple living in Queensland, Mr and Mrs Q and a married couple living in South Australia, Dr and Mrs S. Mrs S, with her husband’s assistance, became the traditional surrogate, with Mr Q being the genetic father. The child was conceived, born and handed over to Mr and Mrs Q. Within three weeks Mrs S came to view the child. She kept the child. Ultimately Justice Jordan held that the child could remain with Dr and Mrs S. It is clear that none of the parties obtained legal advice or had counselling before the surrogacy arrangement was entered into.
· The Baby Gammy saga[7]. Mr and Mrs Farnell who lived in Bunbury in Western Australia, travelled to Thailand to undertake surrogacy. No doubt they had seen information on the internet. What they were doing was probably illegal under WA law. Nevertheless they believed what they were doing was legal. They attended upon an IVF specialist, Dr Pisit. Mrs Chanbua agreed to be the surrogate. She put her age up improperly. She was never made aware that Mr Farnell was a convicted paedophile. The Farnells were told that they had twins in utero. One child (later born as a daughter Pypah) was healthy. The other child (later born as a son, Gammy was diagnosed as having Down syndrome, and later also discovered to have heart issues). The doctor suggested that there be an abortion. The Farnells rejected that. The doctor suggested that while an abortion could not occur in Thailand, they could go to China where anything was legal if enough money were paid. The Farnells rejected that. At birth, Mrs Chanbua kept Baby Gammy because she always wanted to have a boy. Given the dangerous environment in Bangkok before the coup, Mr and Mrs Farnell were told to get out. They left only with Baby Pypah. Ultimately, Pypah remained in the care of Mr and Mrs Farnell, Gammy remaining with Mrs Chanbua. It appears none of the parties had counselling or independent legal advice before entering into the arrangement.
· The same Dr Pisit who was responsible for a baby farm in that he created 16 babies for the son of a Japanese dot.com billionaire using a variety of surrogates in Thailand. Ultimately Thai authorities allowed the children to live with their father in Japan. Thai authorities indicated at the time they were much more worried about the baby farm than Baby Gammy’s case.
· The Australian and South African gay couple who undertook surrogacy in India. A sperm sample was taken only from the Australian man so that he would be the genetic father. A child was conceived and born. The child had no genetic relationship with the Australian man. The couple took the child as their own. They were able to obtain Australian citizenship.
· Anecdotal reports to me that clinics in India routinely had an egg donor other than the egg donor chosen by the parties. Typically intended parents would leaf through a book or on a website as to pretty pictures of donors and their attributes. They would pick the donor (who would always be anonymous to them and the child) but in almost invariably a different donor would supply eggs. If that donor had not supplied enough eggs and the couple were promised to have twins, then eggs would be obtained from the next donor. Whilst the couple may have thought that twins were genetically related to each other, sometimes they were not.
· The Australian couple who went to India to have twins. They were told throughout that the children were developing normally. At birth, one child was Caucasian and the other Indian. The clinic explained to the couple that the Indian child was born because the surrogate and her husband had sex, against the rules. Various IVF doctors have speculated that it was more likely that there was a batching error on the part of the clinic. The Indian child apparently was given to the surrogate and her husband to raise.
· The case in 2008 of the Western Sydney couple who apparently had twins via surrogacy in India and chose only one of them because the other was of the wrong gender. Chief Justice Bryant, as she then was, said in 2014 that if the reports were true, then the giving back of the child to be “adopted”in India was a form of child trafficking.
· Cases in Australia where the surrogate has either refused to hand over the child or refused to consent to the making of a parentage order. One such was whenI represented a surrogate and her husband in South Australia. The surrogate and the intended mother were distant friends who had reconnected through a surrogacy website. The birth was traumatic for the surrogate. The placenta did not give way for an hour and a half. The surrogate underwent surgery six weeks later. Her blood loss had been extreme and she continued to collapse prior to surgery, such as on one occasion when she walked to empty her letterbox. A problem identified in the court case was that in South Australia there was not one counsellor who saw all three parties for the whole of the pre-signing surrogacy counselling. South Australian law at the time required that the surrogate and her husband go to one counsellor, the intended parents go to a second counsellor and then briefly all four parties go to a third counsellor. None of the counsellors it appears spoke to each other to any great degree with the result that there was not one person having an overview of the surrogacy journey of the four people. There was no common vision. The arrangement fell apart whilst the surrogate was recovering in a hospital bed following the operation. The intended mother telephoned her to ask her when she left hospital to collect the paperwork from the court which had been filed at the earliest available date in accordance with the statutory schedule. Never mind that it could have been filed for another five months. The intended mother in that case was very much focused on the legal process and not about the human nature of the transaction. Not once during that phone call did the intended mother ask the surrogate:
“How are you?”
The surrogate underwent counselling with the intended mother. She felt pressured by the counsellor to agree to the making of a parentage order. After two court appearances where it was apparent that neither the surrogate nor her husband consented to the making of a parentage order, the surrogate then had some counselling to deal with her trauma. Subsequently the surrogate and her husband agreed to the making of the order.
Surrogacy can be magical
I have advised clients in over 1500 surrogacy cases. Many of them are domestic, but a majority, consistent with the statistics of where Australian undertake surrogacy, are overseas. The vast majority of those cases are smooth, uneventful and joyous. I have appeared in happy surrogacy court appearances in Queensland, New South Wales and Victoria. I have heard judges say that most of the work they do is unhappy work, often involving a paucity of parenting, but what they see in surrogacy cases is an abundance of love and an abundance of parenting. I have seen a judge cry because of the joy in making a parentage order. Very often I have heard judges say that this is the favourite part of their job and it is the joyful part of their job in making surrogacy parentage orders. One judge recently said that she had “stolen”the matter in the list from another judge so she could have the joy of hearing the matter.
I have been impressed at the capacity of State judges, who have not specialised in family law, in dealing with the complexities of surrogacy, especially when things go wrong.
A way forward?
“Those who maintain that a parental order is not required are not considering the best interests of the child who they care for and risk sleepwalking into future legal difficulties for the child, which can readily be avoided by a parental order being made. Such an order is specifically designed to give lifelong legal security to commissioning parents and children born following surrogacy arrangements called”[8]
The desperation of intended parents to undertake surrogacy was best described by Sir David Attenborough in The Trials of Life (1990):
“If you watch animals objectively for any length of time, you’re driven to the conclusion that their main aim in life is to pass on their genes to the next generation. Most do so directly, by breeding. In the few examples that don’t do so by design, they do it indirectly, by helping a relative with whom they share a great number of their genes. And in as much as the legacy that human beings pass on to the next generation is not only genetic but to a unique degree cultural, we do the same. So animals and ourselves, to continue the line, will endure all kinds of hardship, overcome all kinds of difficulties, and eventually the next generation appears.”
Whether we like it or not, surrogacy is here to stay.
Infertility, according to the Fertility Society of Australia, is the third most common serious medical condition after cardiac issues and cancer. According to the Fertility Society of Australia, it affects one in six couples.
Why do surrogacy?
For gay couples, surrogacy is the only option. It is option A. For most heterosexual couples who undertake surrogacy, it is option D. The options are:
· Option A – sex;
· Option B – IVF;
· Option C – egg donation with IVF;
· Option D – surrogacy.
Women who have seen their friends have children, talk about their children and experience the joy of childhood see their own lives slipping away. There is a real risk with these women that they see surrogacy as a transaction. They at times do not deal with their own pain, with the result that they can micromanage the surrogate (which can turn the surrogacy journey into a disaster). Research from the United States indicates that surrogates there are more willing to be surrogates for gay couples than for straight couples. This at first seems counterintuitive because women want to help other women have children. However, it makes sense when viewed in a practical way:
· Gay couples will forever cherish a woman who can have a child for them, as they cannot. She is a goddess.
· The perception is that gay couples can be more nurturing, caring and empathic towards their surrogate.
· A woman who has gone through all the options may well micromanage the surrogate.
For some women, for example those who have suffered cancer[9], or who were born without a uterus, surrogacy is the only option to parenthood.
Surrogacy around Australia
There have been a series of surrogacy reviews around Australia in recent years. Moving clockwise:
· New South Wales – The Department of Justice carried out an internal review of the Surrogacy Act 2010 (NSW) between 2014 and 2018. Its conclusion was that there shouldn’t be any change to there being a ban on commercial surrogacy. Prosecutions for overseas offences were difficult to undertake. It called for Commonwealth Government leadership.
· Victoria –Victoria has undertaken an ART and surrogacy review. Victoria is to retain its regulators VARTA (Victorian Assisted Reproductive Treatment Authority) and the PRP (Patient Review Panel). It is proposed to bring the legislation more in line with Queensland and New South Wales. The Victorian review recommended that there be Federal leadership to deal with the impact of the decision in Bernieres and Dhopal [2017] FamCAFC 180 in which children born overseas do not have a legal parent/child relationship with the Australian parents. Victoria did not recommend the criminalisation of overseas commercial surrogacy without further inquiry. There is currently a Bill to allow married women to undertake ART without their husband’s consent.
· South Australia – South Australia has been under a seemingly constant state of review since 2014. Amendments were passed in 2015 to reduce the number of counsellors from 3 to 1 before signing and to allow the surrogate to have post birth counselling. Those amendments also allowed the Attorney-General to approve overseas surrogacy arrangements and proposed a State register for surrogates and a State framework for altruistic surrogacy. Neither of those legislated requirements has come to pass. A 2016 review by the South Australian Law Reform Institute as to LGBTI people recommended a removal of the discrimination under the Family Relationships Act with surrogacy towards same-sex couples and singles. Subsequent amendments remove the discrimination against same-sex couples, but not singles. A subsequent review was undertaken by Professor Sonia Allan as to ART which also recommended changes to the Family Relationships Act concerning surrogacy. The bill in question did not proceed further. The Weatherill Government then engaged SALRI to undertake a review concerning surrogacy. That review was continued under the Marshall Government. It recommended comprehensive change including having a specific Surrogacy Act and removing discrimination against single people, bringing the legislation into line with New South Wales and not criminalising those undertaking surrogacy overseas as to do so was impractical. A draft bill for discussion by the Attorney-General has been placed before the South Australian Parliament but has not yet been formally placed before the Parliament or debated. The bill would take up the recommendations of the SALRI review. SALRI recommended that there be Federal leadership as to Bernieres and Dhopal. The Bill passed the Liberal Party room in late July. It is likely that a Surrogacy Bill will be debated later this year, along the lines of the draft Bill.
· Western Australia – Professor Allan has comprehensively reviewed the regulation of assisted reproductive treatment and surrogacy. In my view, Western Australia is the most egregious example of overregulation in surrogacy, which is best demonstrated by the numbers. As best I can calculate it for every child born through the WA system, 17 are born overseas.[10] Professor Allan has suggested considerable liberalisation as to the regulatory process in Western Australia, including abolition of the regulator, the Reproductive Technology Council, to make the process of surrogacy easier. A bill to remove discrimination against single men and gay male couples undertaking surrogacy in Western Australia has been the subject of an inquiry by a committee of the Legislative Council, which proposed major changes. An opposition MP spoke for 22 hours opposing that bill. Professor Allan has recommended that there be specific extraterritorial criminalisation of surrogacy for Western Australians.
· Northern Territory – The Northern Territory has held community fora and is seeking to gauge the opinions of members of the community in anticipation of drafting a surrogacy bill for community consultation. The form of the bill is unknown.
Commodification?
The line that is always run by those opposed to surrogacy is that if the woman is paid to be a surrogate, she is therefore commodified and therefore the baby is also commodified.
This argument was put most powerfully last year by the United Nations Special Rapporteur on the sale and sexual abuse of children and the use of children in child pornography[11], when she said:
1. That entering into a binding contract for surrogacy amounted to the sale of a child. This was because it traversed the woman’s right to decide what to do with the child because after all she is the mother. Binding contracts for surrogacy are the norm in the United States and Canada. Canada has altruistic surrogacy similar in scope to Australia and the UK.
2. Having a pre-birth order made by which the intended parents become parents to the child before the child is born amounts to the sale of a child because again it traduces the rights of the surrogate as mother to decide what to do. Pre-birth orders are commonly made across most of the United States in surrogacy matters. They are also part of the legislated landscape in South Africa and Argentina.
3. Paying a surrogate greater than her reasonable and actual expenses incurred amounts to the sale of a child. This is the common practice in much of the United States and indeed it is arguable may be occuring in Canada, and if the Law Commission’s report is to be believed, in the United Kingdom.
One would expect from that, that there would be stories galore as to surrogacy journeys gone wrong. That is not the case. One of the leading surrogacy lawyers in the world, Mr Andy Vorzimer, a partner of Vorzimer Masserman in California, has said:
“The statistics have been compiled by our office since 1992. As of last month (mid 2018) we have calculated that since 1979 in the United States: More than 151,000 surrogate deliveries; 13 instances of gestational carriers manifesting an intent to keep custody of the child; 25 instances of traditional surrogates manifesting an intent to keep custody of the child and 91 instances of intended parents threatening not to take custody of their child.”
In their recent consultation paper, the UK Law Commission[12] has recommended scrapping the current legal process in the UK for compliant agreements so that at birth the intended parents automatically become the parents of the child and the surrogate is no longer a parent. The Law Commission notes Cambridge University Centre for Family’s longitudinal research of 42 families created by surrogacy, which began in 2000. 26 involved traditional surrogacy and 16 involved gestational surrogacy. 13 of the arrangements were between friends or family. In the rest of the arrangements, the surrogate was previously unknown to the intended parents. It only deals with altruistic surrogacy. The researchers concluded in their research conducted when the children were aged 3:
“The absence of a genetic or gestational link between the mother and the child does not appear to impact negatively on parent-child relationships”.
By age 14 there was “no difference in adolescents’ [psychological] adjustment between family types”. The findings from the longitudinal study are supported by the conclusion of a systematic review of 55 research studies (some of which were the Centre’s research) into surrogacy families conducted in 2015. Based on their review of all these studies, the authors reported that “up to the age of 10 years there were no major psychological differences between children born after surrogacy and children born after other types of assisted reproduction, or after natural conception”.
It is noted that the longitudinal research study is based on a small sample size. Consequently, differences in family types may not have been identified and nor could the surrogacy families be divided into sub-samples (for example gestational and traditional surrogate families). More research is needed. In the longitudinal study the children:
“…were all born using non-commercial surrogacy, as payment to surrogates is prohibited in the UK. Their children spoke of the surrogate’s altruistic motivations for helping their parents, which raises questions about how children will feel in situations where their surrogate mothers were reimbursed financially.”
The Commission notes that this statement evidently leaves open the question of the effect of commercialisation on surrogate-born children.
However, they note that a recent study into the parenting and adjustment of children born to gay fathers through surrogacy in the US showed high levels of psychological adjustment in the children, as well as the children with positive relationships with their parents. These findings correlate with a recent study of 68 surrogate born children with gay fathers in the US. The study found that “children with gay fathers by surrogacy are functioning as well or better than children in the general population”. In the first of these studies, the fathers used commercial surrogacy arrangements. It is probable that this was also the case for the fathers who are the subject of the second study, given that they also use surrogacy agencies in the US.
Outcomes for surrogates
The Centre’s longitudinal study also suggested that surrogacy has generally been a positive experience for the surrogates, although the Law Commissioners note that research has been confined to altruistic arrangements. The study notes that whilst surrogates experience some difficulties (such as a feeling of upset) immediately after handing over the child, these “were not severe, tended to be short lived, and to dissipate with time”. Further, one year after birth, all of the surrogates interviewed were happy with the decision reached about when to hand over the baby and none had experienced any doubts or difficulties whilst handing over the baby.
The Law Commission notes that the research is limited with respect to the numbers involved. The research often does not consider the effect of different types of surrogacy arrangements such as gestational versus traditional arrangements, or altruistic versus commercial surrogacy.
Outcome for the children of surrogates
Two of the Centre’s researchers found that:
“Overall the children of surrogate mothers do not experience negative psychological health or family functioning…The vast majority of surrogates’ children saw surrogacy as positive and felt proud of their mother for being able to help someone in this way.”
It is noted that in the UK 9.8 women per 100,000 live births die during pregnancy around the time of childbirth. There are similar figures in Australia.[13] According to the World Health Organisation 2015 the maternal death rate in the US was 15 women per 100,000 live births (and recent research indicates that those who are poorer, coloured and in rural areas have a much higher rate than those who are white and living close to good health facilities). In the Ukraine it was 24 women per 100,000 live births and in Georgia it was 36 deaths per 100,000 live births. In emerging surrogacy destinations such as Kenya and Nigeria the figures were 510 per 100,000 live births in Kenya and in Nigeria 814 per 100,000 live births.
Procreative liberty
The Law Commissioners state the argument raised in favour of surrogacy is that it supports a person’s procreative liberty. This, sometimes termed the right to reproduce has been defined as:
“The freedom to have children or to avoid having them”
The idea is far more prominent in the US jurisprudence than here, but has been previously considered to be a right to have a child or not have a child.[14]
The Law Commissioners note that ethical critiques of surrogacy revolve around two main things:
1. Exploitation;
2. Commodification (sometimes termed objectification).
They say:
“For some authors, commodification is an element of exploitation. This is because they argue that commodification is making wrongful use of (and thereby exploiting) another person. We accept that these two criticisms of surrogate are interrelated, but as each also represents a distinct concern we examine them separately.”
The Law Commissioners say:
“We think that in the context of surrogacy exploitation comprises at least two distinct elements:
1. That the surrogate might derive (or is at risk of deriving) an unfairly low level of benefit and/or suffers an unfairly high level of cost and harm from the arrangement; and
2. That the surrogate’s consent to the arrangement is defective or invalid.”
It was noted for example that whilst a surrogate in the US can expect to receive around £30,000 as compensation, a surrogate in Georgia or Ukraine may only receive around £10,000. They say it could be argued, in light of this concern, that increasing the compensation the surrogates receive would reduce the potential for exploitation in these arrangements. Those who consider surrogacy inherently to involve commodification of the child take the view, however, that no amount of money would be a fair payment. The Law Commissioners travelled to the Ukraine and:
“We heard of vulnerable women displaced from occupied territories in the Ukraine acting as surrogates; young women from Georgia who had acted as surrogates being cast out from their communities because they were no longer considered marriageable; and surrogates not being aware of the genetic parentage of embryos transferred to them for the purpose of surrogacy. We also note a news report of a woman in the Ukraine who acted as a surrogate not receiving adequate medical care, and others not being paid by surrogacy agencies if they miscarried or did not adhere to strict requirements.”[15]
Issue of consent
It is argued that surrogates cannot (and perhaps can never) validly consent to a surrogacy arrangement. It is argued that a combination of reasons undermine a woman’s capacity and competence voluntarily to consent to a surrogacy arrangement. It was noted that “…whilst stakeholders that we have consulted frequently acknowledge that all those involved in a surrogacy arrangement are often vulnerable, it has also been acknowledged that surrogates are generally economically and socially less well off than intended parents.”
Commodification
The arguments around commodification in surrogacy focus on its effect on both the surrogate and the child born of the surrogacy arrangement. The implication is that surrogacy views both the surrogate and the child as a means to achieving an end; the building of a family for the intended parents.
Ethical arguments against commodification are focused on commercial arrangement. It has been suggested that commercial surrogacy commodifies women, and specifically that it:
“…attempts to transform what is specifically women’s labor – the work of bringing forth children into the world – into a commodity. It does so via replacing the parental norms which usually govern the practice of gestating children with the economic norms which govern ordinary production processes.”
In America an academic contends that surrogacy fundamentally devalues women’s personhood and commodifies women’s bodies and identities. She writes:
“There is certainly the danger that women’s attributes such as height, eye colour, race, intelligence, athletic ability, will be monetised. Surrogates with “better” qualities will demand higher prices in virtue of those qualities. This monetisation commodifies women more broadly than merely with respect to the sexual services or reproductive capacity.”
Some scholars have drawn a connection between commercialised surrogacy and prostitution. In both they argue that it is a woman’s unique reproductive and sexual capacity which becomes a commodity for men to use.
A further dimension in the commodification debate concerns the commodification of children. Another academic notes the potential impact of a child being treated, even temporarily as a commodity:
“While contracts to sell children may not burn them into a commodity (permanently), they still treat them (temporarily) as a commodity. The short duration of such an insult makes it no less disparaging, no less able to undermine one’s sense of self-worth.”
Another academic argues:
“Commercial surrogacy substitutes market norms for some of the norms of parental love…It requires us to understand parental rights no longer as trusts but as things more like property rights – that is, rights of use and disposal of the things owned.”
The UN Special Rapporteur concluded that:
“Commercial surrogacy, as currently practised, usually amounts to the sale of children as defined under International Human Rights law.”
Ethical arguments in favour of surrogacy
The libertarian/autonomy argument
The Law Commission notes:
“Contrary to ethical concerns of exploitation, from a libertarian perspective, an argument has been made that allowing surrogacy (with appropriate safeguards) recognises all the participants’ decisions as a matter of “free choice of a rational human being”. In other words, the law should recognise the decision of free, autonomous individuals who are in control of, and can make decisions about, their own bodies. Such an approach, it is argued, respects the freewill, and freedom of choice of all the participants in a surrogacy arrangement. As Francis suggests, it is unclear why, as a general matter, decisions to carry a surrogate pregnancy should all be unfree, any more so than other pregnancies.
This argument takes issue with the idea of “singling out women for paternalistic ‘protection against themselves’” from one feminist perspective (described by someone as a “liberal feminist” viewpoint), the argument the surrogates are unable to consent voluntarily to participate in the arrangement attracts criticism. One feminist writer says that such an argument:
“…is a dangerous one for feminists to make. It would seem to be a step backward for women to argue that they are incapable of making decisions. That, after all, was the rationale for so many legal principles oppressing women for so long, such as the rationale behind the laws not allowing women to hold property.
For opponents of this ethical viewpoint, therefore, see attempts to “protect” surrogate mothers as paternalistic, reinforcing stereotypes of women as overly emotional and unable to make rational business decisions.
The reference to surrogacy as a “business” decision echoes the focus of concerns around commodification and exploitation on commercial surrogacy arrangements. In terms of commodification, it has been argued that concerns have mitigated where it is clear that any payments made to a woman for being a surrogate are for her services in carrying the child. In particular, it has been argued that there can be no concerns that the child has been sold if the surrogate is not compelled to hand the child to the intended parents, and if any payments due are not conditional on her doing so.”
“Parents are not screened for the procreation of their own children; they are screened for the adoption of other people’s children. It is the role of the dependency laws to protect children from neglect and abuse from their own parents. The adoption default model is essentially an exercise in circular reasoning, because it assumes the idea that it seeks to prove; namely, that a child who is born as the result of artificial reproduction is somebody else’s child from the beginning.”
Luanne and John Buzzanca agreed to have an embryo genetically unrelated to either of them implanted in a surrogate, C. During the pregnancy, Luanne and John separated. The question of who were the child’s lawful parents came before the trial court. Luanne claimed that she and John were the lawful parents. John disclaimed any responsibility, financial or otherwise. The surrogate said that she made no claim to the child.
In the words of Sills PJ, the trial court then reached an extraordinary conclusion: Jaycee had no lawful parents. First, the woman who gave birth to Jaycee was not the mother; the court had astonishingly already accepted a stipulation that neither she nor her husband were the “biological” parents. Second, Luanne was not the mother. According to the trial court, she could not be the mother because she had neither contributed the egg nor given birth and John could not be the father, because, not having attributed the sperm, he had no biological relationship with the child.
“We disagree. Let us get right to the point: Jaycee never would have been born had not Luanne and John both agreed to have a fertilized egg implanted in the surrogate.
The trial judge erred because he assumed that legal motherhood, under the relevant California statutes, could only be established in one of two ways, either by giving birth or by contributing an egg. He failed to consider the substantial and well-settled body of law holding that there are times when fatherhood can be established by conduct apart from giving birth or being genetically related to a child. The typical example is when an infertile husband consents to allow his wife to be artificially inseminated.”
The court found that both Luanne and John were the lawful parents of Jaycee.
In Johnson v. Calvert (1993)[17] the surrogate sought to keep the child, arguing that the surrogacy contract in California was void because of breach of the prohibition on payment for adoption. Mark and Crispina were the intended, genetic parents. Anna was the surrogate. They entered into a contract in 1990 whereby an embryo created by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born would be taken into Mark and Crispina’s home “as their child”. Anna agreed she would relinquish “all parental rights” to the child in favour of Mark and Crispina. In return, they would pay her $10,000 in a series of instalments, the last to be paid 6 weeks after the child’s birth. Their relationship broke down:
“Gestational surrogacy differs in crucial respects from adoption and so is not subject to the adoption statutes. The parties voluntarily agreed to participate in in vitro fertilization and related medical procedures before the child was conceived; at the time when Anna entered into the contract, therefore, she was not vulnerable to financial inducements to part with her own expected offspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna under the contract were meant to compensate her for her services in gestating the fetus and undergoing labor, rather than for giving up “parental” rights to the child. Payments were due both during the pregnancy and after the child’s birth. We are, accordingly, unpersuaded that the contract used in this case violates the public policies embodied in Penal Code section 273 and the adoption statutes. For the same reasons, we conclude these contracts do not implicate the policies underlying the statutes governing termination of parental rights…
Finally, Anna and some commentators have expressed concern that surrogacy contracts tend to exploit or dehumanize women, especially women of lower economic status. Anna’s objections center around the psychological harm she asserts may result from the gestator’s relinquishing the child to whom she has given birth. Some have also cautioned that the practice of surrogacy may encourage society to view children as commodities, subject to trade at their parents’ will.
We are all too aware that the proper forum for resolution of this issue is the Legislature, where empirical data, largely lacking from this record, can be studied and rules of general applicability developed. However, in light of our responsibility to decide this case, we have considered as best we can its possible consequences.”
We are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward results Anna cites as to demand their invalidation on public policy grounds. Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will foster the attitude that children are mere commodities; no evidence is offered to support it. The limited data available seem to reflect an absence of significant adverse effects of surrogacy on all participants.”
The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genes. Certainly in the present case it cannot seriously be argued that Anna, a licensed vocational nurse who had done well in school and who had previously borne a child, lacked the intellectual wherewithal or life experience necessary to make an informed decision to enter into the surrogacy contract.”
The manner in which the Law Commissioners considered to deal with the issue in the UK was that law reform in respect of domestic surrogacy arrangements can alleviate, if not eliminate these concerns by providing more effective regulation of surrogacy arrangements and revised eligibility requirements and safeguards.
The Law Commissioners suggested in respect of overseas surrogacy arrangements:
“We make a provisional proposal for reform that would enable legal parenthood granted overseas to be recognised in the UK, only after an appraisal of the law on practice of surrogacy in each country. We hope that such a development would encourage UK intended parents who do look for an international surrogacy arrangement to use countries where there is a level of confidence in the protection provided to women who become surrogates. Our primary aim, however, is that our proposed reforms will encourage those wishing to enter into surrogacy arrangements to do so in the UK rather than overseas.”
Child’s right to an identity
Bernieres and Dhopal [2017] FamCAFC 180
Mr and Mrs Bernieres lived in Melbourne. They underwent surrogacy in India – which was lawful for them to do so. On return to Australia, one of the orders they sought from the Family Court was a declaration that they were the parents. This was refused by Justice Berman. They appealed. The Full Court found that they were not the parents under the Family Law Act.
Counsel for Mr and Mrs Bernieres drew the trial court’s attention to article 3.2 of the International Convention on the Rights of the Child, namely that:
“States parties undertake to ensure the child such a protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”
They did that in the context of saying that it should be taken into account in the definition of a child of a marriage in section 67ZC of the Family Law Act. Berman J considered that there was no ambiguity to the interpretation of a child of the marriage which would make it necessary to consider the Convention to and ensure an interpretation of the Act that did not result in an unintentional breach of Australia’s international obligations.
Regrettably, it would appear that counsel did not draw the attention of the court either at the trial level or Full Court level to article 8 of the Convention. Article 8 provides relevantly:
“States parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Article 8 has been found that the right of identity, according to an English court includes the right to a legal identity.[18]
The effect of the decisions by Justice Berman and by the Full Court meant either that:
· The child did not have legal parents. That cannot be right as a matter of public policy; or
· The parents of the child were the Indian couple. These are people who:
o contracted not to be the parents;
o are not recognised in Indian law as the parents;
o have no genetic connection with the child;
o have never parented the child;
o have never intended to parent the child;
o is unlikely will ever parent the child;
o aside from a few days after the child’s birth may never see the child again.
Regrettably, this issue appears not to have been agitated before the court.
With respect to Justice Berman, the consideration of the Convention must not only be as to any ambiguity, but a legitimate expectation on the part of the child and the parents that Australia will comply with its international obligations under the Convention absent any statute or regulation that may indicate otherwise.[19]
Following Bernieres, children fell into two categories:
1. Children, however they are conceived, have a parent or parents.
2. With apparent rare exception, children who are conceived to Australian intended parents through international surrogacy arrangements do not have a secure parent-child legal relationship. They are to all intents and purposes legal strangers.
This could have a devastating outcome for the child in many ways, the most significant one being that the law has not recognised the parents as the parents of that child or to put it another way, do not recognise the child as being a child of those people. Whilst this might seem an arcane argument, currently the only ability to appoint a testamentary guardian, for example in New South Wales, is by a parent. Under section 14(1) of the Guardianship of Infants Act 1916 (NSW):
“The parent (including a mother or father) of a minor made by deed or will appoint any person to be guardian of the minor after his or her death.”
If someone is not a parent, they cannot make a valid appointment. As the UK Law Commission has identified, there is no clear provision for someone being a parent of a child when they are an intended parent under a domestic surrogacy arrangement before a parentage order is made. This may have the most adverse outcomes for those children.
Masson v Parsons [2019] HCA 21
The High Court in this case about whether the genetic father was a parent under the Family Law Act, determined that it was a question of fact about whether someone was a parent under the Family Law Act, and that intention was one of the factors to be taken into account, although each case depends on its own facts. It is likely that the approach in Bernieres and Dhopal is no longer the law.
Kiefel CJ and Bell, Gageler, Keane, Nettle and Gordon JJ said:
At [26]:
“Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning.
At [29]:
In In re G (Children), Baroness Hale of Richmond observed in relation to comparable English legislation that, according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.
At [44]:
Div[ision] 1 of P[ar]t VIIof the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning. In some respects, most notably in s 60H, the Family Law Act may be seen as expanding the conception of “parent” beyond ordinary acceptation by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures. Additionally, under s 60G, a person may qualify as a parent of a child born of an artificial conception procedure by reason of the person’s adoption of the child under the law of a State or Territory. But ss 60Hand 60Gare not exhaustive of the classes of persons who may qualify as parents of children born of artificial conception procedures. It remains that, apart from those specific provisions, the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”. And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.
At [45]:
It is also necessary to appreciate, as is explained later in these reasons, that the evident purpose of s 60Hand more generally of Div[ision] 1 of P[ar]t VIIof the Family Law Act is that the range of persons who may qualify as a parent of a child born of an artificial conception procedure should be no more restricted than is provided for in Div[ision] 1 of P[ar]t VII.Consequently, although ss 60Gand 60Hare not exhaustive of the persons who may qualify as parents of children born of artificial conception procedures, if a person does qualify as a child’s parent either under s 60Gby reason of adoption, or according to s 60H, or according to ordinary acceptation of the word “parent”, it is beside the point that a State or Territory provision like s 14(2)of the Status of Children Act otherwise provides. Section 79(1)of the Judiciary Act does not operate to insert provisions of State law into a Commonwealth legislative scheme which is “complete upon its face” or where, upon their proper construction, the provisions of the Commonwealth scheme can “be seen to have left no room” for the operation of State provision. And, as is apparent from its text, context and history, Div[ision] 1 of P[ar]t VIIof the Family Law Act leaves no room for the operation of contrary State or Territory provisions.
At [47]:
During the 1980s, that [status of children] legislation was expanded to deal with the consequences of advances in the field of artificial conception, initially in terms confined to the status of children born to married women who conceived by assisted conception, but later so as to encompass children born to lesbian couples and single women. As Victoria submitted, there is no doubt that it was one of the purposes of those enactments to ensure that a husband who consented to the artificial insemination of his wife with semen obtained from another man would irrebuttably be presumed to be the father of the child and that the legal links between the donor of the sperm used in the artificial conception procedure and the child thus conceived be dissolved. It is, however, plain from the referral of powers by the relevant States to the Commonwealth that the object of the exercise was to facilitate the creation of a uniformly applicable Commonwealth scheme, and plain from the form of Div[ision] 1 of P[ar]t VII, and particularly from the current forms of ss 60G and 60H, that Div[ision] 1 of P[ar]t VIIis designedly selective as to the State and Territory provisions relating to parentage that the Commonwealth permits to apply. Sections 60H(2) and 60H(3) in particular create an obviously intended capacity for the Commonwealth from time to time to add or to choose not to add, or to exclude, those of the State and Territory legislative provisions determinative of the parentage of a biological father of a child born as a result of an artificial conception procedure that apply under the Family Law Act.
At [48]:
The evident purpose of Div[ision] 1 of P[ar]t VIIof the Family Law Act is that the Commonwealth is to have sole control of the provisions that will be determinative of parentage under the Act.
At [53]-[55]:
- Finally, counsel for the first and second respondents and counsel for Victoria contended that … this Court should hold that the ordinary, accepted English meaning of “parent” excludes a “sperm donor”.
- Those submissions must also be rejected. As has been explained, the ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.
- It is unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”. In the circumstances of this case, no reason has been shown to doubt the primary judge’s conclusion that the appellant is a parent of his daughter.”
Criminality
Professor Allan has recommended in the Western Australia review[20] that there should be extraterritorial criminality in that State as this:
“…would support the public policy position taken against commercial surrogacy in establishing at law before people enter into commercial surrogacy arrangements abroad and/or engage in other prohibitive practices, that they would be committing an offence”. It would also serve to harmonise Western Australia’s law to a greater degree with those jurisdictions.
Discussion should be had with the Commonwealth government and other states and territories concerning the issue of the granting of citizenship, passports, and/or long term visas to children born as a result of commercial surrogacy arrangements given the specific complexities that arise in relation to ART, donor conception, and surrogacy, and the strong public policy position against commercial surrogacy taken in Australia. The Commonwealth, state and territory governments have called for “greater harmonisation of the laws”. This may include “consideration of whether Commonwealth citizenship laws should be harmonised with all the other laws of this country”.”
Professor Allan then says:
“The Western Australian government should consider whether to require all applicant parent(s) who are granted entry into Australia with a baby born as a result of an overseas surrogacy arrangement with whom they intend to reside in Western Australia, be issued with notice that they must appear before the Family Court of Western Australia within a certain time (specified) to allow the Court to consider whether the granting of parenting orders is in the best interests of the child. This would:
· avoid the current situation of people avoiding the courts altogether because they do not wish to incur further costs or scrutiny of the arrangement;
· allow an appropriate order to be made to secure the child’s interest;
· service another factor that may discourage people from engaging such activity due to additional hurdles, scrutiny, and costs.”
“While commercial surrogacy is prohibited in Victoria, the offence does not have extraterritorial application, and as such, intended parents may enter into commercial surrogacy arrangements overseas. This is in contrast to the situation in Queensland, New South Wales and the Australian Capital Territory, where it is an offence for intended parents who ordinarily reside or are domiciled in those jurisdictions to enter into commercial surrogacy arrangements either at home or abroad. The key objective of the extraterritorial offence for commercial surrogacy in these jurisdictions is to protect vulnerable women from exploitation in countries where the regulation of surrogacy is less developed than in Australia. The Review notes that intended parents also expose themselves to a range of risks when they enter into surrogacy arrangements abroad, including sudden changes to surrogacy laws relating to foreigners, unexpected additional costs, and inferior health outcomes for children born in countries where substandard medical practices may prevail.
The introduction of extraterritorial provisions is not universally welcome in Australia. Critics note that there have been no prosecutions of people pursuing international commercial surrogacy arrangements, and thus deem the provisions to be ineffective. For this reason, while the SALRI Review accepted the concerns about international commercial surrogacy, it ultimately concluded that a specific offence of this nature would be inappropriate and ineffectual in South Australia. By contrast, having undertaken a careful and thorough review of the extraterritorial provisions currently in place in Queensland, New South Wales and the Australian Capital Territory, the Allan Review recommended that the Western Australian Government amend the surrogacy laws in that state to ‘provide for the extraterritorial application of the law … which would make it an offence to enter into, or engage in, other practices related to commercial surrogacy arrangements abroad’ (Allan, 2019).
Central to this recommendation was the finding that ‘it would not be appropriate for a State [which criminalises commercial surrogacy domestically] to then endorse practices elsewhere that do not meet the standards agreed upon for citizens within that state or by those who choose to uphold the law rather than circumvent or breach it’. As part of its analysis, the Allan Review noted the value of a clearly articulated policy position on the issue of overseas commercial surrogacy, and highlighted the importance of a harmonised approach across jurisdictions, noting in particular stakeholder feedback that some people living in jurisdictions where overseas commercial surrogacy is prohibited are advised to move address, or make it appear that they were resident in a state such as Victoria, to circumvent such prohibitions. While accepting that there have been no prosecutions to date in the states that have introduced the extraterritorial offence, the Allan Review pointed to the strong deterrent effect that such laws have both on individuals contemplating overseas commercial surrogacy and ART providers or other medical practitioners who might encourage or advise the use of such services.
The Review acknowledges the arguments and expertise set out in the Allan Review in respect of overseas commercial surrogacy. This Review however has treated commercial surrogacy as outside the scope of its terms of reference, and has not examined the complex legal, international and moral issues. It has not assessed the potential impact of a criminal offence on those Victorians who do use commercial surrogacy services. The Review notes that many of the recommendations in this Chapter are aimed at making altruistic surrogacy arrangements more accessible locally, by clarifying the rights and obligations of the parties concerned, and removing existing barriers including opportunities for intended parents to connect with people who may be willing to act as surrogates, and making it possible to offer fair reimbursement of reasonable costs incurred. As such, the package of reforms as proposed will allow intended parents to have more and better opportunities to find a suitable altruistic surrogacy arrangement locally in Victoria. Nevertheless, the Review also acknowledges the benefits of a national harmonised approach to surrogacy laws, and that there may be interests in developing a common national approach on this specific issue. Efforts to harmonise surrogacy laws among key jurisdictions will likely require Victoria to review its position on introducing an extraterritorial offence for an individual or corporation to enter into, or engage in, practices related to commercial surrogacy arrangements outside Victoria.”
Ball park figures that intended parents may spend in undertaking surrogacy are:
· domestic surrogacy (including a domestic parentage order application) – $70,000 (most of which cost is the cost of IVF);
· surrogacy in a developing country – in the order of $80,000 to $100,000;
· undertaking surrogacy in Canada $120,000;
· undertaking surrogacy in the US (with the exchange rate at $0.75c) $145,000 to $300,000.
The rate varies widely in the United States due to regional variations in cost. Base compensation payable to a surrogate in California can often be considerably higher than that of a surrogate in Arkansas, for example. A surrogacy agency in California might have a higher fee, sometimes a considerably higher fee, than a surrogacy agency in the Midwest.
Whilst Professor Allan’s arguments have appeal, aside from any resourcing issues for the court and the practicality as to how the parties will come to the attention of the Western Australian Government, Australia is a party to a number of international conventions to ensure that people are not left stateless. Article 2.2 of the International Convention on the Rights of a Child says:
“States parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”
Article 7 provides:
“(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
(2) States parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”
Article 8.1 provides:
“(1) States parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Article 16.1 provides:
“No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.”
The last word
Sills PJ in Buzzanca said:
“No matter what one thinks of artificial insemination, traditional and gestational surrogacy (in all its permutations), and as now appears in the not-too-distant future, cloning and even gene splicing courts are still going to be faced with the problem of determining lawful parentage. A child cannot be ignored. Even if all means of artificial reproduction were outlawed with draconian criminal penalties visited on the doctors and parties involved, courts will still be called upon to decide who the lawful parents really are and who other than the taxpayers is obligated to provide maintenance and support for the child. These cases will not go away.”
The Special Rapporteur has indicated that she will be making submissions to the United Nations General Assembly in October about surrogacy.[22] The International Women’s Health Coalition and Human Rights Watch have made a submission to the Special Rapporteur. The Coalition for example has supported grantee partners advocacy in Argentina, Brazil, Cameroon, Egypt, Fiji, India, Kenya, Lebanon, Nigeria, Pakistan, Peru, Poland, South Africa, Turkey and Uruguay. They are currently doing documentation work on the impact of the global gag rule in Nepal, Nigeria, Kenya and South Africa as well as documentation on the impact of refusals to provide care on the ground of conscience in Chile. The Human Rights Watch has extensive experience documenting human rights abuses including trafficking of women and children and related topics and conducted research on these topics in Afghanistan, Bangladesh, Brazil, Burkina Faso, Chile, China, Colombia, Dominican Republic, Ecuador, El Salvador, Honduras, Indonesia, Ireland, Mauritania, Mexico, Myanmar, Nepal, Nicaragua, Papua New Guinea, Poland, South Africa, Sierra Leone, United States of America and Zimbabwe.
They say:
“The issue of surrogacy arrangements, particularly compensated surrogacy arrangements, requires careful consideration of several sets of intersecting rights, and the interests of multiple rights holders. This is particularly important given the human rights analysis around surrogacy is relatively nascent and given the key principles of universality and interdependence of human rights…
We are concerned by any overbroad view of the application on the prohibition and the sale of children to surrogacy that would unnecessarily, disproportionately or in a discriminatory fashion limit the options of surrogacy as a means of founding a family and exercising reproductive rights. The optional protocol prohibits “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.” People acting as surrogates may do so for no remuneration (money paid for work or a service) or no consideration (money in exchange for benefits, goods, or services), and in other cases may receive compensation that constitutes fair recompense for lost wages and other opportunity costs, healthcare and nutrition expenses, and restitution for the significant burdens and risks associated with pregnancy. We submit that such arrangements do not and should not in and of themselves constitute the sale of children under the optional protocol.”
The Special Rapporteur noted the core standards in the context of surrogacy:
· Best interests of the child as a primary consideration.
· International Convention on the Rights of the Child, Article 3.1, general comment number 14 (2013).
· Identify rights, access to origins and family environment.
· International Convention on the Rights of the Child, Articles 7, 8, 9, 10 and 20.
· Prohibition of the sale of children.
· International Convention on the Rights of the Child, Article 35 and optional protocol on the sale of children and child trafficking.
· Protocol to Prevent, Suppress and Punish Trafficking and Persons especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol).
Human Rights Watch and the International Women’s Health Coalition say:
“These standards essentially address the rights of children and, in reality, surrogacy arrangements involve various stakeholders and at least two other rights holders (those seeking to provide surrogacy services and intending parents). While the substantive focus of the Special Rapporteur’s report is the rights of children born of surrogacy, they should not be viewed in isolation but subject to principles of universality and indivisibility of rights, equality and non-discrimination, and proportionality when examining the rights of other stakeholders.”
Human Rights Watch and the International Women’s Health Coalition identify the following human rights implicated by surrogacy arrangements:
· The right to equality and non-discrimination (for example, UN Declaration on Human Rights, Article 2, International Covenant on Civil and Political Rights, Article 26; International Covenant on Economic, Social and Cultural Rights, Article 2; A Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), Article 2; Convention on the Rights of Persons with Disabilities, Articles 5 and 6).
· Right to health (e.g. UDHR, article 25, ICESCR, article 12; CEDAW, article 12).
· Right to privacy (e.g. UDHR, article 12, ICCPR, article 17).
· Bodily autonomy (e.g. ICCPR, articles 7 and 17; CEDAW, article 12 and GR24).
· Reproductive autonomy (e.g. CESCR GC22, CEDAW, article 12 and GR24).
· Right to decide number and spacing of children (CEDAW, article 16).
· Right to Found a Family (e.g. UDHR, article 16, CRDP, article 23).
· Right to information (e.g. UDHR, article 19, ICCPR, article 19).
· Right to benefit from scientific progress (e.g. UDHR, article 27, ICESCR, article 15(b)).
· Rights of persons with disabilities (e.g. CRPD, articles 5, 6, 7, 12, 17 and 23).
The Coalition and Human Rights Watch say:
“Children born of surrogacy are obviously crucial rights holders whose human rights must be considered in any discussion of surrogacy, and whose best interests are a primary consideration in all matters affecting them. Nevertheless, they are not the sole rights holders implicated in surrogacy arrangements. Additionally, it may not be in children’s best interests to exclude consideration of the human rights of surrogates and intending parents and doing so is unlikely to lay the groundwork for effective policy. Along these lines, the development of guidance and policy on surrogacy should not move forward without full participation by representatives of the following groups, without discrimination including on the basis of race, ethnicity, age, disability, sexual orientation or identity, etc and expert groups who represent the interests of these groups:
(a) Children born of surrogacy;
(b) Individuals who have acted or wish to act as surrogates, including through both commercial and non-commercial surrogacy;
(c) Individuals struggling with infertility;
(d) Individuals who have utilised (or seek to utilise) assisted reproduction, including surrogacy, to become parents; and
(e) Individuals who have participated or may wish to participate in assisted reproduction, including surrogacy, through contribution of genetic material including eggs and sperm.”
Human Rights Watch and the Coalition agree with the importance of the primacy of protecting the rights of children born of surrogacy arrangements. They say that the following principles pertain more to other rights holders whose rights are implicated by surrogacy arrangements “as we are concerned that these rights have not yet been fully considered in this discussion”:
(a) Everyone participating in a surrogacy arrangement in any capacity should have a full opportunity for informed consent, expert advice, accessible communication, and, as appropriate, supported decision making and legal counsel and representation.
(b) Every person has the right to make their own decisions about their reproductive life, including surrogates and potential surrogates, people who seek to become parents through surrogacy and other forms of assisted reproduction, and donors of genetic material.
(c) People who are pregnant should not be deprived of the right to make decisions about abortion and other healthcare decisions by reason of a surrogacy agreement, and legal or policy frameworks for surrogacy should not facilitate such deprivation.
(d) To the extent that new legal frameworks are developed for surrogacy, they should not rely on criminal sanctions. Criminalising conduct related to consensual sexuality in production (for example sex work, sex outside of marriage, adolescent sexual behaviour, same-sex intimacy, adolescent pregnancy and pregnancy outside of marriage, abortion, etc) is generally harmful and leads to violations of human rights. In addition, it is unlikely that criminalising surrogacy would end the practice. Rather, it is more likely that criminalisation would drive surrogacy underground where unsafe conditions, discrimination and exploitation for all rights holders involved can flourish.
(e) Fetal personhood has no basis in human rights law.
(f) The right to found a family, to make decisions on the number and spacing of children and to benefit from scientific progress including through surrogacy and other forms of assisted reproduction, should not be denied on the basis of discriminatory criteria such as sexual orientation, gender identity, disability, marital or partnership status, etc.
(g) The best interests of the child is a dynamic concept that should be applied appropriately in the specific context, including examination of likely consequences for children of surrogacy, it is prohibited and pushed underground.
There are risks of abuse in surrogacy. The solution to this problem is not to ban surrogacy, but for surrogacy to be practised under a framework based in international human rights law, incorporating the rights of the child, surrogates and potential surrogates, and people seeking to become parents through use of surrogacy and other forms of assisted reproduction.”
2 August 2019
Stephen Page
Page Provan
family fertility lawyers
Brisbane
www.facebook.com/stephen.page.lawyer.brisbane
[1]Stephen Page is a partner of Page Provan, family and fertility lawyers in Brisbane. He was admitted in 1987 and has been a Queensland Law Society accredited family law specialist since 1996. He is a Fellow of the International Academy of Family Lawyers, the Academy of Adoption and Assisted Reproduction Attorneys and is also an international representative on the ART Committee of the American Bar Association. He co-authored and was the principal advocate of what became Policy No. 112B of the American Bar Association (2016) as to a proposed Hague Surrogacy Convention. Stephen has written and spoken about surrogacy around the globe. He has both suffered infertility and become a father through a Queensland domestic surrogacy arrangement. He lectures in law and ethics in Reproductive Medicine at UNSW.
[2]Our story has already been in the media: https://mobile.abc.net.au/news/2019-07-29/push-to-simplify-international-commercial-surrogacy/11303164?pfmredir=sm&fbclid=IwAR1riH8p5iFlErU4pF0Ey-SuOrwfi480OiXwG_MJ2FxDL_6Y6JTCpM_EPOg, although I dispute the reason stated for the holding of the Cambridge conference.
[3] Law Commission and Scottish Law Commission, Building Families Through Surrogacy : A New Law, A Joint Consultation Paper (2019) viewed on 11 June 2019 at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2019/06/Surrogacy-consultation-paper.pdfat [1.37] – [1.38].
[8]A and B and C & D [2015] EWHC 1059 (Fam) per Theis J
[9]As seen in LWV v LMH [2012] QChC 26, for example.
[10] According to the annual reports of the Western Australia regulator, the Reproductive Technology Council, since 2008, one child a year has been born in Western Australia through surrogacy. The number of children born to Australians overseas has always greatly exceeded the number of children born through domestic surrogacy journeys. For a number of years, 250 children or thereabouts were born overseas and obtained Australian citizenship by descent, according to the Department of Home Affairs. There was a dip in the 2016/2017 year to 146 children. In the 2017/2018 year there were 179 children. That number likely underrepresents the number of children born overseas through surrogacy. Some heterosexual couples do not tell the Department of Home Affairs that they engage in surrogacy, but falsely claim that the woman was pregnant and gave birth. The figures also do not capture visa holders living in Australia who undertake surrogacy overseas – as these won’t be shown in the citizenship figures. Western Australia has just under 10% of the Australian population, but due to the mining boom, its per capita income is above average. If the number of children born in Western Australia reflects its broad population, one would expect that in the 2018 year, 17 children were born overseas to Western Australian residents, compared to on average one born a year through domestic surrogacy arrangements.
[12]https://www.lawcom.gov.uk/project/surrogacy/viewed 2 August 2019.
[13] Fertility doctors estimate 1 woman in 10,000 dies from complications from pregnancy and childbirth in Australia. The best guess of being killed by lightning is one in 300,000 or one in 500,000.
[15]Paragraph 2.53.
[16] Sills PJ, with Wallin and Crosby JJ concurring In re Marriage of Buzzanca (Cal.App. 4 Dist. 1998) 72 Cal. Rptr.2d 280
[17] Johnson v Calvert 5 Cal.4th 84, 19 Cal. Reptr. 494 (1993) per Panelli J, with Lucas CJ, Mosk, Baxter and George JJ concurring
[18]An additional object of part VII of the Family Law Act is to give effect to the Convention: s.60B(4).
[21]Gordon, W, Helping Victorians create families with assisted reproductive treatment: Final Report of the Independent Review of Assisted Reproductive Treatment, May 2019, pp.138-139.
