Getting Married and Having a Child Should Not Be so Hard
Life is grand. I am the luckiest man to live. Due to changes in the law, I have been allowed to marry- and to have a child with the person I love. While getting married and having a child seem self-evident truths, for LGBTIQ+ couples the law (and until 40 years ago, for reproduction, biology) prevented these couples from fulfilling these dreams.
I have been practising family law in Australia since 1987. For two years before that, I was a graduate working full time in the law. By happenstance, my first surrogacy case was back in 1988. Back then my home State, Queensland, made all forms of surrogacy illegal- commercial, altruistic, gestational or traditional- even between sisters, and even when undertaken by Queenslanders overseas. You name it, it was criminal.
About 10 years ago there was a change in surrogacy laws, State by State in Australia, so that surrogacy is now allowed, provided it is not commercial.
In June 2012 there was an attempt to wind back the law in Queensland. The then Attorney-General sought to remove the recognition of lesbian non-birth mothers as parents- and to jail gays, lesbians or singles for up to three years for entering into surrogacy arrangements. At the time the Government had a supermajority in our single-chamber Parliament. I believed that these proposals were fundamentally offensive- and decided to fight them. Colleagues told me I was “foolish” and “brave” (which of course meant foolish). I thought the odds of successfully opposing the proposals were about 0 to 3%- but needed to be done. For me not to take action would have properly labelled me as weak and cowardly. At the very least a line had to be put in the sand. I did not hold out much prospect of success.
I then led seven people who decided to fight these proposals. The wheels of the Attorney’s wagon fell off one at a time- and then we were successful. The first to go was the winding back of the recognition of lesbian mums. This would have meant Queensland would have been out of step with the rest of Australia. Most painfully, if a lesbian couple split up, the non-birth mother would have had to pay child support under federal law, even though she was not recognised under state law. Dropped.
The next to go was criminalisation. The Attorney dropped criminalisation but still wanted to ban gays, lesbians and singles from undertaking surrogacy.
There was a backlash to the proposed ban. One of my clients said in anger: “Governments don’t play God. They can’t tell us when we can and can’t have children.” That client was the mother of a woman who could not carry a child. Instead, my client carried the child for her daughter. It was a beautiful journey. That journey would have been banned under the proposal.
By March 2013, our group of seven had withered down to two, out of exhaustion- me and the other guy. On Monday he contacted me, saying he could not take it anymore as the burden was too great. He had burnout. I couldn’t blame him. He had worked very hard. But now it was just me against the all-powerful government. I felt the weight of the world upon my shoulders. The proposed ban on gays, lesbians and singles undertaking surrogacy remained.
That weight lasted three days. On Thursday news broke that the proposal was canned. Hooray! We had won!
I met my husband to be, Mitchell, in late 2013. It was love at first sight. We met at a party- and saw each other across the room. Almost instantly we decided to be a couple. By mid-2014, at my birthday party, Mitchell proposed. For once I was lost for words- but I instantly accepted. The problem? Australia did not allow us to get married.
We didn’t want to wait. Tony Abbott talked in 2015 of changing the law to enable same-sex couples to marry- then backtracked. Nothing was going to happen anytime soon.
Later in 2015, we had a very short trip to the US planned, so I could speak about surrogacy at law conferences. We would have a couple of days off in Vegas on the way home, staying with a friend. Three weeks out from our trip, Mitchell said: “Why don’t we get married in Vegas?” So we did. There was no Elvis- but our preacher said he had become a minister because his sister was a lesbian and she had not been allowed to marry. His calling was to try and allow other same-sex couples to marry. We had a few American friends attend our wedding- and 250 friends and family in five countries watch via streaming. It was marvellous.
But then we got home. Our marriage remained unrecognised.
Then Australia had our postal plebiscite- a horrible bruising encounter in which Facebook posts labelled gays as paedophiles. Mitchell and I were at a square in Brisbane when the resounding YES news came through- cheered with the rest of the crowd- and went to have a drink to celebrate. By good luck, we were in the same bar where a friend of ours had watched our wedding when she was armed with a glass of champagne and her iPad.
Our marriage was still not recognised. Our Parliament still had to vote yes. On the day in question, we were at a gay rights conference in Phnom Penh. When the crucial vote came through, we were in the hotel dining room, packed with the lunchtime crowd. Suddenly, I jumped up as high as I could, screaming out: “YES!” with both fists in the air- and did so over and over again. I have never yelled so loud or jumped so high. Somehow, everyone in the room got up too and starting cheering and shouting. People came over for selfies. It was another extraordinary, joyous moment. Many at lunch had nothing to do with the conference!
The following day our marriage was at last recognised in our home country.
In the meantime, we decided to have a child. Of necessity this meant surrogacy. To our amazement and joy, a woman close to us offered to be our surrogate, and another offered to be our egg donor. When our surrogate said she wanted to be our surrogate, we cried tears of joy. I also thought at the same time: “This is what happens to my clients.”
Our surrogacy journey was not straightforward. Our complications included a miscarriage, an ectopic pregnancy, and then the near-death of our daughter during childbirth. Following the birth, the hospital insisted that our surrogate stays in the hospital overnight, even though our surrogate had earlier been cleared to go home. Our daughter was staying in the same room as Mitchell and me.
Why did the hospital insist? Because she was the only parent. Our law does not automatically recognise the intended parents as the parents. We had to wait until after the birth of the child to be recognised. Our surrogate did not recognise herself as our daughter’s parents. We were. Mitchell and I were rendered invisible. Our surrogate had to stay in the hospital. She felt violated.
The final step on our surrogacy journey was to obtain a parentage order. I appeared in court for my husband and me. Our daughter Elizabeth came with us to court. Our surrogate and her lawyer, as well as my then associate, who out of necessity had to give us legal advice for our journey (as I could not give it to myself!), was there too.
It was the second hardest court appearance I have ever had to do (after my first, way back in 1985)- mainly because the law was uncertain. Test cases are very interesting, except when they are your own. It was uncertain before the making of orders as to who was the parent. Was it our surrogate alone, or her and Mitchell, or Mitchell and me, or all three of us? The law was unclear- but my view of the law was that the parent before the making of the order was our surrogate alone. The judge agreed- orders were made, and finally, we were recognised as our daughter’s parents. We then had pictures in the courtroom- and went off to celebrate.
Our little family could now get on with life, knowing that our marriage was recognised and our family was recognised.
Stephen was admitted in 1987 and has been an accredited family law specialist since 1996.
Among other memberships, Stephen is a Fellow of the International Academy of Family Lawyers and the Academy of Adoption and Assisted Reproduction Attorneys, and is an international representative on the ART Committee of the American Bar Association. He is the founder of the LGBT Family Law Institute in Australia.
Stephen lectures in Ethics and the Law in Reproductive Medicine at the University of New South Wales.