International Bar Association conference presentation

Wednesday, October 11, 2017

Yesterday I presented to the International Bar Association conference about how Australia regulates surrogacy:

The vexing problem of surrogacy regulation:
THE VIEW FROM DOWN UNDER

International Bar Association Conference
Sydney 10 October 2017

Stephen Page[1]

1. The market to become parents

Many of us have known from early childhood that our destiny is to become parents. For many of us, that destiny is greatly frustrated or prevented due to infertility, age, being single, being trans or intersex, or in a same sex relationship. For those intended parents who can’t be fruitful and multiply, the quest is as to how they become parents. In the past, the gap was met by adoption practices. In Australia this pressure led in part to the stealing of Aboriginal children from their parents[2] and the similarly shameful removal of children from single mothers.

Those options are no longer available. The numbers are stark. In 1971-1972 when Australia’s population was 13 million, the number of adoptions in Australia hit an all-time high of about 10,000 children[3]. By contrast, the number of adoptions now has hit an all-time low of 278 children, even though our population is now 24 million.

The number of children in State care who are then adopted in Australia is extremely low.

Intended parents in the past have reached out overseas. While well meaning, the 1993 Hague Intercountry Adoption Convention has been criticised as being part of the problem in that it has been asserted that the Convention, or at least the way it is applied by some Australian State authorities has led to inordinate delays, commonly in the order of 5 to 8 years for intended parents seeking children through adoption. Currently, 82 children have been adopted internationally, primarily from the Philippines (20), Thailand (18), South Korea (14) and Taiwan (16), the last two being non-Hague countries.

In addition, the historical rise of countries such as India and China out of poverty into middle class has meant that children who were once available to be adopted internationally from those countries means that they are no longer available for adoption. Australian intended parents have to look elsewhere.

The rise of assisted reproductive treatment, which has occurred approximately over the last 40 years, and pioneered in Australia, has resulted in many children who would otherwise not have been born. However, many people cannot access ART alone and need the assistance of:

· Sperm donors;

· Egg donors;

· Surrogates.

1.1 Sperm Donors

Amidst reports of a dramatic call in fertility of Western men, there has been a concomitant exponential rise in the need for sperm donors. Big sperm donor agencies exist in the US and in Denmark, which then supply sperm to IVF clinics and intended parents throughout the globe.

In Australia we have a serious shortage of sperm. Doctors attribute this in part due to our child focused laws (whereby the child will be able to identify the donor after the child reaches 18) and lack of payment to donors.

There has been a rise in the number of lesbian couples in particular who have had the help of known sperm donors. This has led to at times a fraught legal environment for the lesbian couples and the donors.[4]

1.2 Egg Donors

Australians have travelled across the globe seeking eggs. Quite simply, there is a severe shortage of egg donors in Australia. Egg donation is a much more intrusive process than sperm donation. The American Society for Reproductive Medicine, for example, estimated that the whole process for sperm donation, including counselling, takes one hour whereas the process of egg donation takes upward of 50 hours, involving daily injections and finalised with minor surgery in which there is a risk of ovarian hyper stimulation syndrome and from that, death.[5]

Our laws are designed to ensure that egg donors are not paid, punishable by up to 15 years imprisonment,[6] the concern being that IVF clinics will take advantage of young women.

As with sperm donors, Australian law reach out overseas. The regulation of egg donation in Australia is governed by a Commonwealth/State and Territory scheme. The Federal or Commonwealth laws only apply within Australia. The State and ACT laws in some cases extend beyond Australia under what are called long arm laws. It is therefore possible for someone living in Sydney, for example, to undergo egg donation in the United States and inadvertently commit an offence in New South Wales punishable by up to 15 years imprisonment even though to do so would be legal in California.

Clients have reported to me that they have undertaken egg donation around the globe:

Continent	Country
North America	Canada Mexico* United States
South America	Argentina
Africa	South Africa
Europe	Georgia Greece Russia Spain United Kingdom Ukraine
Asia	Cambodia* India* Malaysia* Nepal* Thailand*

* Primarily associated with surrogacy which is now not widely available to Australians there.

We have seen South African egg donors flown to Australia due to perceived shortage here. There has been a rise of internet based websites to connect egg donors and intended parents. Nevertheless, clients have reported to me a delay of two years or more for the availability of donor recruited egg donors. Out of frustration, they look for other means to become parents. In March 2016 I visited Cape Town. At one of the clinics there, the number of Australian couples attending as intended parents for egg donation is 3-5 per business day.[7]

2. Surrogacy

For some intended parents, there is no option but that of surrogacy, the option of last resort. For a variety of reasons, they have been unable to become parents by other means and they therefore pursue the most complex manner of becoming parents.

In seven of the eight Australian jurisdictions, surrogacy is available – but on a non-commercial, altruistic basis. Between 2004 and 2012, each of the States and the Australian Capital Territory legislated concerning surrogacy. Regrettably, although the models are similar, they have some key differences. There are substantial differences between what expenses might be paid. For example, the payment of a surrogate’s life insurance is allowed in Queensland, but an offence in Victoria is adding to difficulties in a matter where the intended parents live in Queensland and the surrogate lives in Victoria.

The key overall feature, though, is that surrogacy is only altruistic. Quite simply there is a shortage of surrogates, which is clearly seen from the number of children who are born through surrogacy. It is estimated that each year there are approximately 40 children born through domestic surrogacy arrangements and greater than 250 born internationally.[8] The constant complaint I have heard from my clients is:

1. It is illegal for them to advertise for a surrogate.

2. Therefore they cannot find a surrogate.

3. Therefore they wish to go overseas to pursue surrogacy there.

As with egg donation, there has been a rise of websites in which intended parents and would-be surrogates link up. Clients of mine reported in June 2017 that for every would-be surrogate on one of those websites, there was a dozen single or couple intended parents. The odds are very much stacked against domestic surrogacy and very much in favour of intended parents pursuing surrogacy overseas.

3. The legal framework for surrogacy in Australia

Each of the States and the Australian Capital Territory have legislation in place legalising and regulating altruistic surrogacy. The Northern Territory does not. It alone has no laws concerning surrogacy. While it is therefore legal to undertake any form of surrogacy in the Northern Territory, in practice this does not happen. The reasons are simple:

· As there is no law in place to allow surrogacy and therefore the transfer of parentage, it is unlikely that the Supreme Court of the Northern Territory would make an order transferring parentage from the surrogate and their partner to the intended parents.

· National licensing requirements of IVF clinics is that they do not engage in commercial surrogacy.

· Given its small population, there is only one IVF clinic in the Northern Territory. The doctors are registered in South Australia. That clinic has decided over many years not to provide surrogacy services because it cannot enable the transfer of parentage from the surrogate and her partner to the intended parents.

3.1 Domestic Surrogacy Regulation in the ACT, NSW, Qld, Tasmania and SA

In the Australian Capital Territory, New South Wales, Queensland, South Australia and Tasmania, the broad model of surrogacy regulation is as follows:

1. The intended parents/surrogate and their partner have independent legal advice.

2. All parties participate in psychological screening.

3. The parties then enter into a non-binding surrogacy arrangement – which is usually written. (It is required to be written in NSW, Qld, SA and Tasmania, but may be oral in the ACT).

4. Although not a requirement of any legislation, before the surrogacy proceeds, Ethics Committee approval within the IVF clinic is obtained.

5. Treatment can then commence.

6. After the child is born, counselling or psychological assessment or both is then undertaken.

7. A post birth order is made transferring parentage from the surrogate and their partner to the intended parents.

3.2 Domestic Surrogacy Regulation in Victoria and Western Australia

In each of Victoria and Western Australia there is a state regulator whose approval is required before the surrogacy arrangement can proceed. Victoria is unique globally for having five regulators of its IVF industry, namely:

No.	Regulator	Role
1	National Health and Medical Research Council	National regulator of IVF industry
2	Reproductive Treatment Accreditation Committee	National regulator of IVF industry
3	Victorian Assisted Reproductive Treatment Authority (VARTA)	Victorian regulator of IVF industry
4	Patient Review Panel	Victorian regulator covering presumption against treatment when criminal history or child protection history arises and regulator required to approve surrogacy arrangements.
5	Victorian Department of Health	General regulator of medical practices in Victoria, works closely with VARTA and Patient Review Panel.

The model in Victoria and Western Australia is similar to that in the other States in that it is altruistic surrogacy where there is independent legal advice and screening before the agreement is entered into, the approval of the relevant IVF Clinic Ethics Committee before treatment commences and a post birth order being obtained. In Western Australia there must be a written agreement (which also is required to be signed by any gamete donor) but in Victoria it can be an oral agreement.

The key difference between Western Australia, Victoria and the other States is that the approval of the statutory authority must be obtained before treatment can be commenced. Western Australia mandates a cooling off period as well. In Western Australia the regulator is the Reproductive Treatment Council (which is also the body to regulate IVF clinics). In Victoria the authority is the Patient Review Panel.

4. Discrimination in Australian Surrogacy and ART

In 2015, Australia committed to the United Nations Human Rights Committee that it would remove discrimination, including exemptions under the Sex Discrimination Act 1984 (Cth) against LGBTI people. At the time of this conference we are in the midst of the Australian Marriage Law Postal Survey, which is a non-binding vote by Australian electors as to whether or not same sex couples should be allowed to marry. If the vote is passed, a Bill will then be presented to both Houses of Parliament for approval. However, that vote (and Bill, if any) has little impact, one way or the other, on discrimination under ART law which is found under separate laws.

In accordance with its commitment, the Commonwealth removed exemptions allowing State based discrimination in respect of all states concerning LGBTI people on 1 August 2016 – with the exception of Western Australia which continued until 1 August 2017. Nevertheless, there remain State based discrimination which may or may not survive any challenge to being overridden by the Commonwealth Sex Discrimination Act. In the two reported cases some years ago[9] it was clear that State based discrimination preventing single women from accessing ART fell foul of the Sex Discrimination Act and was therefore overridden. It is less clear if a challenge to discriminatory laws in terms of surrogacy would be successful, given that a court process is involved to enable surrogacy to proceed.

4.1 Discrimination in Queensland

Section 45A of the Anti-Discrimination Act 1991 (Qld) allows IVF clinics to discriminate in the provisions of services “if the discrimination is on the basis of relationship status or sexuality”.

By contrast, the Surrogacy Act 2011(Qld) is non-discriminatory – heterosexual, LGBTI couples and singles can all pursue surrogacy. In reality, IVF clinics in Queensland are not discriminatory. I have called for the repeal of section 45A, but it has not occurred.

4.2 Discrimination in New South Wales

New South Wales law is non-discriminatory.

4.3 Discrimination in the ACT

A curious requirement of the Parentage Act 2004 (ACT) required that the intended parents (sexuality is not an issue) must be a couple and the surrogate must have a partner. There cannot be a single surrogate nor a single intended parent.

4.4 Discrimination in Victoria

Victorian law is non-discriminatory.

Victoria is unique worldwide in requiring intended parents clearing both a criminal history check and a child protection history check. If they fail those, there is a presumption against treatment. It is then up to the Patient Review Panel to decide whether ART (including surrogacy) can be provided. If the Patient Review Panel decides against treatment, an appeal is available to the Victorian Civil & Administration Tribunal.

4.5 Discrimination in Tasmania

There is no discrimination as to the provision of ART, and no discrimination on the basis of sexuality, but Tasmania – which currently has a population of 519,000 – requires that at the commencement of the surrogacy journey all parties, namely the intended parents, the surrogate and her partner (if any) must reside in Tasmania. Whilst this requirement can be dispensed with, the dispensation is post birth – which in a common surrogacy journey may be greater than 18 months or 2 years away.

4.6 Discrimination in South Australia

Following the removal of exemptions under the Sex Discrimination Act last year, the South Australian parliament this year passed laws to enable LGBTI couples to undertake ART and surrogacy.

The passage of these amendments has meant:

· The continuation (subject to the Sex Discrimination Act) of single intended parents not being able to access surrogacy in South Australia.

· LGBTI couples being able to access surrogacy and ART in South Australia.

· IVF Clinics being prohibited from refusing to provide assisted reproductive treatment to another on the basis only of the other’s sexual orientation or gender identity, marital status, or religious beliefs subject to objection may be taken by a registered objector. A registered objector is a licence holder who takes objection on one of those bases and is therefore prepared to go on a public register saying that they will not assist in those cases. They will then have an obligation to refer the intended patient to another service where that patient might receive the service.

One might think on a first reading of this legislation that any fertility doctor can take the objection. However, it is clear that only licence holders can take the objection. The only licence holders are the four IVF clinics in South Australia – none of which have taken the objection. Even if doctors wish to take the objection, they cannot do so.

4.7 Western Australia

Since the removal of its exemption on 1 August 2017, Western Australia has not amended its laws, with the result that the people who can access surrogacy (subject to any challenge relying on the Sex Discrimination Act) in Western Australia are:

· Heterosexual couples;

· Lesbian couples;

· Single women.

But the people who cannot access surrogacy in Western Australia are:

· Single men;

· Gay male couples.

5. Where Australians have undertaken surrogacy

Australians have attempted or are seeking to or have completed surrogacy in these countries:

Continent	Country
North America	Canada Mexico* United States
South America	Nil
Africa	Ghana Kenya South Africa
Europe	Cyprus Georgia Greece Russia Ukraine
Asia	Cambodia* China* India* Laos Malaysia Nepal* Thailand*

* Surrogacy may not be currently available in these countries to Australians.

Given what was said by the judge in the Baby Gammy case, Chief Judge Thackray[10], that it is relatively easy for Australian intended parents to undertake surrogacy overseas and obtain Australian citizenship for their child, despite State laws that may prohibit them doing so (and the difficulty in undertaking surrogacy in Australia), Australians have ventured across the globe in the pursuit of surrogacy. They are therefore featured in seemingly every country where surrogacy has blown up:

· In India – where an Australian couple from Western Sydney apparently took one of two children who were born and not the other because they did not like the gender of the second;

· Nepal – where Australian intended parents were trapped following the interlocutory injunction in the Supreme Court of Nepal;

· Mexico – where Australian intended parents were trapped and greatly delayed in bringing their babies back to Australia;

· Thailand – where Australians were trapped following the Baby Gammy case;

· Cambodia – where Australians have been trapped following the change of policy position in Cambodia in October 2016 against surrogacy. An Australian IVF nurse Tammy David-Charles – who promoted surrogacy for foreigners in both Thailand and Cambodia – has been imprisoned in Cambodia relating to surrogacy and the falsification of documents.

5.1 Theory versus reality – the regulation of overseas surrogacy in Australia

Australian States take differing views about whether to seek to regular Australians undertaking surrogacy overseas. There are no Federal laws preventing Australians from undertaking surrogacy overseas.

5.2 Extraterritorial laws: ACT, NSW and Qld

The Australia Capital Territory, New South Wales and Queensland make it plain that if residents from those jurisdictions (or those who are domiciled in New South Wales as an alternate test) enter into or offer to enter into a commercial surrogacy arrangement overseas, they commit an offence back home, punishable by up to:

· 1 year imprisonment in the ACT;

· A$110,000 fine or 2 years imprisonment in New South Wales;

· 3 years’ imprisonment in Queensland.

There are related offences as to advertising. In Queensland there is an additional offence of giving or receiving consideration under a commercial surrogacy arrangement – which also extends to overseas.

5.3 It’s fine to go overseas for commercial surrogacy – Victoria, Tasmania, Northern Territory

In each of these jurisdictions there is no offence to engage in surrogacy overseas.

Within about a month of New South Wales changing its laws to clearly criminalise those going overseas for commercial surrogacy, the Victorian regulator, VARTA, held a seminar in April 2011 on cross-border reproductive care and brought out a doctor from India to assist Victorian intended parents as to how they would care for their child travelling from India to Melbourne!

5.4 The grey area: South Australia

In South Australia, due to a long arm law, it is possible (although unlikely) that an offence would be committed in undertaking surrogacy overseas. To have an approved arrangement, approval has been needed since July 2015 in undertaking any overseas surrogacy (whether commercial or not) from the South Australian Attorney General. The Attorney General in turn is to be guided by the State Framework for Altruistic Surrogacy and the Family Relationships Regulations – neither of which documents have been finalised in the last two years! It is therefore likely that if any intended parent were to seek the Attorney General’s consent that consent would have to be refused because those documents haven’t been created!

5.5 Western Australia

As was clearly pointed out in the Baby Gammy case (Farnell & Chambua[11]), it is an offence in Western Australia to enter into a surrogacy arrangement for reward with a long arm provision of that State’s Criminal Code if any element of the offence is committed in Western Australia – even if the surrogacy arrangement is an overseas arrangement –the offence is committed.

It is also an offence in Western Australia for any lawyer in Western Australia to give advice to clients intending to enter into a surrogacy arrangement that is for reward (whether in Western Australia or overseas). Therefore, any intended parent in Western Australia considering taking surrogacy overseas will need to obtain advice from an interstate practitioner.

5.6 The reality – no prosecutions

After the Baby Gammy saga hit the airwaves in August 2014, the two heads of Australia’s family law system, Chief Justice Diana Bryant of the Family Court of Australia and Chief Judge John Pascoe of the Federal Circuit Court of Australia called publicly for the repeal of the overseas laws. They noted that no-one had been prosecuted under these laws and either the laws ought to be enforced or appealed – to have the laws in the statute books and not enforced in circumstances where many Australians were undertaking surrogacy overseas made a mockery of the laws.

In the three years since then:

· no-one has been prosecuted;

· many further Australians from those jurisdictions have undertaken surrogacy overseas;

· the laws have not been repealed.

6. Uncertainty as to parenthood

The administration of the Australian Citizenship Act has made it fairly straightforward for intended parents to undertake surrogacy overseas. The test for what is called citizenship by descent as a practical reality (but see my comments as to the effect of Bernieres and Dhopal below) has been that:

1. one of them is genetically a parent; or

2. in the wider sense of society one or both is recognised as a parent.

In reality, the latter is often based on an order made in the United States or Canada. For countries outside the US or Canada, the Department of Immigration as a matter of course has required a DNA link.

There have been several intended parents who undertook surrogacy in India and Thailand where due to errors by the clinic (or as alleged in one case, natural conception by the surrogate and her husband) the child was not genetically related to the relevant intended parent and therefore the DNA test could not be used to establish parentage. In those cases, the Department of Immigration relied on the wider test to establish parentage.

6.1 Lack of clarity as to whether intended parents are parents

Whilst intended parents can gain citizenship for their child fairly easily and therefore bring the child home and have the child remain in Australia, it has been a moot point as to whether the intended parents are parents of the child under Australian law. There has been a plethora of decisions from the Family Court of Australia and the Family Court of Western Australia which have indicated different outcomes namely:

· they are the parents;

· they might be the parents;

· the genetic father is the parent;

· they are not the parents;

· I don’t have the power to say that they are the parents.

It now appears clear following the decision on 1 September 2017 in Bernieres and Dhopal that the intended parents, subject to four exceptions, are notthe parents.

6.2 Bernieres & Dhopal [2017] FamCAFC 180

In a recent decision, three judges of the Family Court have ruled that Australians who go overseas for surrogacy are not the parents of any child that they bring home.

Mr and Mrs Bernieres had a child through surrogacy in India. They first went before Berman J of the Family Court seeking orders that they had parental responsibility for the child and that the child live with them – and declarations or findings under the Family Law Act that they were the child’s parents.

His Honour made the orders that they had parental responsibility and that the child live with them, but declined to make the parentage declaration.

Mr Bernieres was the biological father of the child. An egg donor was the biological mother.

The couple, who lived in Victoria, had not undertaken surrogacy in compliance with the law of Victoria which required:

· Because the surrogacy was commercial, as oppose to altruistic;

· Was not commissioned with the assistance of a Victorian registered ART provider;

· The procedure was not carried out in Victoria.

It was legal in Victoria for them to undertake surrogacy in Victoria. Mr and Mrs Bernieres entered into the surrogacy agreement in August 2013 – two years after VARTA ran its seminar on Cross-Border Reproductive Care.

Because there had not been compliance with Victorian domestic surrogacy requirements, section 60HB of the Family Law Act did not apply to the case. Section 60HB provides:

“(1) If a court has made an order under a prescribed law of the State or Territory to the effect that:

(a) A child is the child of one or more persons; or

(b) Each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

(2) In this section: “this Act” includes:

(a) The standard Rules of Court; and

(b) The related Federal Circuit Court Rules.”

Furthermore, Mr and Mrs Bernieres sought a declaration under section 69VA of the Family Law Act. Berman J was of the view that he could not do so because that section was not a “stand alone power but rather requires ‘parentage’ of a child to be an issue in proceedings in respect to another matter”. His Honour further went to say that the Family Court despite being a superior court of record, did not have an inherent power to grant a parentage declaration “other than those authorised by the Act and its inherent power extends only to administer justice and prevent abuse of process”.

Berman J noted that the circumstances surrounding the birth of the child were “not dealt with directly either by the relevant state legislation or by reference to section 60HB” and that this may be unsatisfactory. However “the definition of a parent should [not] be extrapolated because of a legislative vacuum.” He went on to say that the category of persons who satisfy the definition of parent while not necessary closed pursuant to section 60H of the Family Law Actand section 60HB “any perceived hiatus is a matter for legislation and not judicial interpretation”. Therefore as the Victorian legislation did not provide for the circumstances of the child’s birth, Mr Bernieres was not the parent of the child for the purposes of Victorian law. His Honour said that he could “well understand the dismay of [Mr and Mrs Bernieres] that they are not able to secure for all purposes that which they fervently seek namely, recognition and a declaration of parentage”. His Honour therefore noted the need for “urgent legislative change”.

Quite simply, since that decision two years ago in September 2015, there has been no legislative change nor any proposed legislative change.

6.3 The Full Court decision

The Full Court was comprised of Bryant CJ and Strickland and Ryan JJ.

Their Honours accepted the approach taken by Thackray CJ in Farnell and Chambua (the Baby Gammy case) that sections 60H and 60HB of the Family Law Act overrode the general parenting presumptions under the Family Law Act.

Furthermore, their Honours agreed with the tentative position taken by Ryan J in Mason and Mason (2013) where her Honour said in effect that there is a scheme between State and Federal law as to who is and who is not a parent and that therefore a person is or is not a parent determined by State and Territory status of children legislation.

Therefore, the approach taken by Johns J in Green-Wilson and Bishop that someone is a parent under general provisions of the Family Law Act even if not a parent under the equivalent Status of Children Act is the wrong approach.

Their Honours went on to note that section 60H(1) by which the birth mother and de facto partner or husband are the parents of a child conceived through artificial conception procedure, did not apply to surrogacy situations:

“On its plain meaning, if section 60H(1) is applied to a surrogacy arrangement…it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material. Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.”

Their Honours did not consider sections 60H(2) and (3) of the Family Law Act. As their Honours noted “judicial opinion is divided as to whether those subsections impliedly exclude” any donor or genetic material from recognition as a parent.

If the approach taken by Justice Ryan in Mason and Mason were correct, then on the face of it a donor would not be a parent under those sections. However, in the decision of Groth and Banks, a known donor could be a parent.

Whilst it might be thought that section 60HB only applies to domestic surrogacy arrangements, their Honours said:

“Thus, it is plain that s60HB now specifically addresses the position of children or and under surrogacy arrangements, leaving little s60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of section 60HB is to leave to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In other words, section 60HB covers that field, leaving, as we say, section 60H to address conventional artificial conception procedures.”

As their Honours said:

“The unfortunate result of that conclusion is that the parentage of the child here is in doubt. There is no order made under the relevant State legislation (and nor could there be…).

There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.

Because of the effect of section 60HB (and perhaps section 60H) therefore a parentage declaration could not be made.

Mr and Mrs Bernieres sought to have the child considered to be a “child of the marriage” but from similar reasoning the Full Court found that the child was not a child of the marriage, in part because of the specific provision, namely section 60HB.

6.4 Effect of the decision

It has been estimated that approximately 250 children a year are born to Australian intended parents via overseas surrogacy arrangements. It is clear now that because of this decision, Australian intended parents are notthe parents of any child born overseas through surrogacy. It is really irrelevant as to whether the surrogacy is commercial or altruistic. Because the Family Court referred to the relevant State legislation (which is fairly consistent on this point), the effect is clear – intended parents are not parents of children born through surrogacy overseas. It seems clear that earlier decisions that have said otherwise under the Family Law Act were incorrectly decided.

6.5 Will there be any impact on citizenship?

It is unclear as to what impact there will be on the citizenship of children conceived in the future through international surrogacy. The Department of Immigration and Border Protection has taken the view that section 60HB of the Family Law Act applies only to domestic surrogacy arrangements and not international surrogacy arrangements. This is important because section 8 of the Australian Citizenship Act says that where a person has been conceived through an artificial conception procedure, who is a parent for the purposes of Australian citizenship is determined by sections 60H and 60HB. If the Department takes the view, consistent with the Family Court, that section 60HB of the Family Law Act covers the field – then no child born outside Australia through surrogacy (with limited exceptions) would be recognised as the child of a parent for the purposes of Australian citizenship. Therefore the child would not be entitled to Australian citizenship and would therefore not be entitled to live in Australia.

For quite some time the Department has said that section 60HB does not apply to international surrogacy arrangements, in which case the usual test as to who is a parent, of who in society generally someone as a parent. This is consistent with the decision in H v. Minister for Immigration (2010), a Federal Court decision – which was quite clear in saying it didn’t apply to surrogacy.

For quite some time now there has been a variance of opinion by judges of the Family Court as to whether someone is or is not a parent when they have undertaken overseas surrogacy. The Immigration Department has largely ignored the approaches taken by Family Court judges. Whether it does so now may have significant impact on any Australian who wishes to undertake surrogacy overseas.

6.6 Are there any exceptions to the ruling as to who is a parent under the Family Law Act?

There would appear to be four exceptions in which someone can still be a parent under the Family Law Act when surrogacy is undertaken overseas.

6.7 Exception 1 – comity cases

If someone is living overseas and has undertaken surrogacy lawfully there, and is recognised as a parent there, then the general parenting presumptions under the Family Law Act do not apply that that person should be recognised as a parent under the Family Law Act: Ryan J in Carlton and Bissett (2013).

6.8 Exception 2 – a second parent adoption

Now we come to the truly Kafkaesque situation where a biological parent may not be a parent but the second (either biological or non-biological) parent will be a parent under Australian law. In some parts of the United States, surrogacy is governed by post birth parenting orders, typically granting custody to one of the intended parents, then terminating the parental rights of the surrogate and her partner, and then a second order making the other intended parent a parent. This second order is typically a second parent adoption order (sometimes called a stepparent adoption order).[12]

It is unclear from the decision in Bernieres and Dhopal whether the first parent will be recognised as a parent under Australian law. After all, they won’t have complied with relevant State and Territory status of children legislation. Whether the overseas order concerning the first parent will be recognised is uncertain.

However, it would appear reasonably clear that the second parent adoption order which recognises the second parent as a parent of the child, would recognise that person as a parent under the Family Law Act. Why this is so is fairly technical. One of the definitions of “child” under section 4 of the Family Law Act (the definition section) says:

“(a) In Part VII (that part of the Family Law Act that deals with children and parental responsibility) includes an adopted child and a stillborn child; and

(b) In Subdivision E of Division 6 of that Part [the part of the Family Law Act that deals with taking children overseas improperly], means a person who is under 18 (including a person who is an adopted child).”

Further, under that section “parent” is defined as:

“When used in Part VIII in relation to a child who has been adopted, means an adoptive parent of the child.”

Furthermore, where there might be legitimate concern about whether the adoption needs to have occurred in Australia or needs to have occurred in accordance with example with The Hague Intercountry Adoption Convention, the definition of “adopted” in that section is much wider:

“In relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.”

6.9 Exception 3 – registration of US surrogacy orders

It is possible in limited circumstances (and has occurred twice) where US surrogacy orders are able to be registered under the Family Law Act. In those cases, the order of the US Court that declares the intended parents to be the parents of the child will therefore make the parents under Australian law, if the order is registered, the parents of the child in Australia.

In the two decisions, Forrest J of the Family Court made plain the Court’s reluctance to register US surrogacy orders when there has been commercial surrogacy. This may be a very limited option. I expand on this issue below.

6.10 Exception 4 – South Australia

Under the Family Relationships Act 1975 (SA) those intending to undertake surrogacy overseas from South Australia can obtain the approval of the South Australian Attorney-General before undergoing their journey. The South Australian Attorney General in turn has to be guided by the State Framework for Altruistic Surrogacy and the Family Relationships Regulations – neither of which at this stage have been written even though the law has been in place since July 2015.

If a couple (and it would only apply to couples) is able to obtain the Attorney-General’s consent, and they then pursue surrogacy successfully overseas, they can be recognised under South Australian law as the parents by obtaining a parentage declaration in the Youth Court of South Australia (which would therefore be sufficient for the purposes of section 60HB of the Family Law Act.

6.11 Historical impact of not being a parent

Before the decision in Bernieres and Dhopal, very few intended parents would go to the Family Court seeking orders declaring them to be the parents of children born overseas through surrogacy. The reasons were simple:

· It costs approximately $20,000 to bring such an application and depending on which part of Australia they are in, might take 6 months to resolve;

· Chances were the Court would not make a declaration and parentage in their favour;

· Given changes to passport rules in 2015, for those who underwent surrogacy in the US or Canada, then they will probably not need the surrogate’s written consent to any passport for the child;

· There are usually no real impediments in the child obtaining citizenship, Medicare entitlement, Centrelink entitlements, going to hospital or the doctor or being enrolled in childcare or school;

· There were issues in relation to wills and inheritances, superannuation and child support issues. However, intact families generally (aside from planning their Wills) did not have an obvious imperative to go to Court to seek a declaration or orders concerning their child.

The unknown factor as a result of this decision is the approach that will be taken by the Department of Immigration.

The call by Berman J for urgent legislative change is an obvious one. It is an outrage that we now likely have thousands of children who live in Australia whose parents conceived them through surrogacy overseas who do not have a legal parent/child relationship – which could lead to the disinheritance of the children concerned as well as other significant unintended impacts.

This surely was not and should not be the intention of Parliament.

7. Registration of US surrogacy orders

It is now possible to register US surrogacy orders in Australia. It has occurred only in two cases. Once registered, then the US order will take effect for all purposes under Australian law – including determining that the intended parents are the parents.

In the first case, Re Halvard[13], Forrest J in the Family Court of Australia registered a US surrogacy order. It was a pre-birth order. His Honour didn’t consider that there was much of significance as to whether it was a pre-birth or post birth order, it being of a similar effect to orders commonly made in New South Wales or Queensland. Of more significance to his Honour was that the public policy of New South Wales and Queensland was against commercial surrogacy. His Honour found that the surrogacy arrangement in question (which was undertaken by a couple living in the United States and occurred in the United States) was an altruistic one under both the Surrogacy Acts of Queensland and New South Wales and therefore was able to be registered.

7.1 Re Grosvenor [2017] FamCA 366

In this case, Forrest J registered a US surrogacy order. It involved a couple from the ACT who moved to the United States for work – then underwent surrogacy and wished to register the order in Australia. His Honour considered it appropriate to register the order having regard to:

· the unique circumstances of the couple and their inability to biologically parent and carry their own baby;

· the well-regulated nature of the surrogacy arrangements entered into between them and the surrogate, notwithstanding its commerciality;

· the judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the woman who carried the baby for the applicants;

· the acceptance by the Australian Government of that US jurisdiction as a prescribed jurisdiction for the purposes of the registration of overseas child orders made in Courts of that jurisdiction thereby signifying the Australian Government’s satisfaction with the standard of the judicial processes that would have occurred in the making of the order;

· the fact that the arrangements entered into, regardless of their nature, brought into the world a child who was the biological child of at least one of the applicants, the legal child of both of them, who has been loved and raised as their child, who is an Australian citizen, like her parents, will be coming back to live in Australia in the near future, and who has every right to expect that the legal nature of her relationship with both of her parents is appropriately recognised in this country of hers.

8. Regulation of International Surrogacy

As the example of Australia illustrates all too well, there is great uncertainty for intended parents as to whether they will be recognised as the parents of the child. Australia has demonstrated by the actions of Australians undertaking surrogacy overseas that on some occasions there may be exploitation of parties (whether it be surrogate, intended parents or child or a combination of all of them) and that therefore there ought to be some light handed consistent regulation of surrogacy so that the human rights of all are able to be protected and the right of the child to an identity[14]are able to be properly recognised. The resolution of the American Bar Association 112B reached in February 2016 urged the US Department of State to seek the following in negotiations concerning a possible Hague Convention on private international law concerning children, including international surrogacy arrangements:

“(a) that any Convention should focus on the conflict of laws and comity problems inherent in international citizenship and parentage proceedings and that any such collective international approach should allow for cross-border recognition of parentage judgments so that the parental relationship and citizenship status of all children, no matter the circumstance of their birth will be certain; and

(b) that any such collective international approach allows individual member countries to regulate surrogacy within their own borders as deemed appropriate by that country without imposing new international restrictions on surrogacy arrangements; and

(c) that a Central Authority model to regulate surrogacy arrangements is not an appropriate model for any collective international approach regarding surrogacy; and

(d) that any Convention should recognize the clear distinctions between adoption and surrogacy;

(e) that the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption (1993) is not an appropriate model for any convention regarding surrogacy; and

(f) that rather than requiring a genetic link, an intent-based parentage analysis is the most appropriate parentage doctrine for surrogacy; and

(g) the human rights abuses are not necessarily inherent in or exclusive to surrogacy arrangements; and, therefore should be addressed separately.”

The Hague Conference on Private International Law has set up a working group which has met in 2016 and 2017 and is next due to meet in 2018. The form of a Hague Convention on private international law concerning children, including international surrogacy arrangements is likely to be several years away. The likely form of that Convention is currently unknown.

8.1 Hague Adoption Convention

I made mention above that sometimes in the United States, post birth orders are made in the US involving a second parent adoption. The evident question that leaps out with international surrogacy is whether the 1993 Hague Intercountry Adoption Convention might apply to that second parent adoption. The usual approach with the US State Department and the Australian Immigration Department have not been to involve the Hague Convention. As a matter of law, it is suggested that that is the correct approach. The only decision on point comes from New Zealand.

In Re Application by L[15]Mr and Mrs L lived in New Zealand. Mrs L’s sister, Mrs G and her husband Mr G lived in Queensland. Mrs G offered to be the surrogate for Mr and Mrs L. Mrs G was implanted with the egg and sperm of Mr and Mrs L. What is unknown from the case is where IVF occurred. The reason is that surrogacy in all forms, whether gestational, traditional, commercial, altruistic, within Queensland or overseas was in 2000 illegal in Queensland.

Be that as it may, the child was born in Queensland. Seven days later the child flew to New Zealand with Mr and Mrs G. They had cared for him from birth.

New Zealand regulates international surrogacy based on an adoption model. The question for the Court was whether the child was habitually resident in Queensland at the time of his birth. If he were, then the 1993 Hague Convention would apply, with all its processes. The Court found that the child’s habitual residence was New Zealand, not Australia. The New Zealand Department of Child, Youth and Family Services was a party to the proceedings and was of the view that New Zealand was the place of the child’s habitual residence.

Judge P von Dadelszen noted that in H v. H(1995) 13FRNZ498, Greig J said at 501:

“It is clear, and there is ample authority to show, that the construction of the phrase “habitual residence” has no particular legal magic. It is to be construed in the ordinary meaning of the word. The essence of “habitual” is customary, constant, continual. The opposite of that is casual, temporary, or transient.”

Judge P von Dadelszen held:

“It is important not to confuse habitual residence with domicile and (counsel) conceded that at the time of his birth H would be seen as being domiciled in Australia as his birth mother was a citizen of that country…the point made by (counsel) is that the Ls were H’s caregivers right from his birth, on the basis of the agreement reached between them and Mr and Mrs G. Accordingly, his residence in Australia could be temporary only, it always having been intended that, following the birth, H would travel to New Zealand with his genetic parents.

…(I)t seems to me that it would ignoring reality to suggest that this child’s habitual residence could be any country other than New Zealand…indeed, it can be argued that what was said in Re F, quoted above, supports the proposition that H’s habitual residence was New Zealand as the Ls commenced caring for him immediately he was born.

As (counsel) points out, the Adoption (Intercountry) Act was enacted to prevent the trafficking and sale of children across international borders in an immoral way, for financial gain, and to prevent children from being displaced from their cultural heritage and familial connections. There is nothing in the conclusion to which I came which does violence to these aims.

For the sake of completeness, I should note that counsel for the Department of Child, Youth and Family Services had earlier advised me that the Department’s view was that H’s habitual residence was in fact New Zealand although it preferred to abide by the decision of the Court in this regard.”

9. Australian Reform

In 2013 a statutory body, the Family Law Council, was commissioned by the previous Government to inquire into the status of children including as to whether there should be a Federal Status of Children Act (including as to the impact on children born overseas through surrogacy arrangement).

The Family Law Council recommended that there be a Federal Status of Children Act.[16]

Since then, as illustrated in Bernieres and Dhopal, there has been no change to the status of children legislation. No Federal Status of Children Act has been enacted and there have been no moves to do so.

The Council also recommended that intended parents going overseas for surrogacy obtain judicial approval before their child can obtain Australian citizenship, similar to the UK approach. There have been no moves to do so.

In 2015 and 2016 the House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an informal and then formal inquiry as to surrogacy. The Committee recommended[17] that there be:

1. Nationally consistent non-discriminatory laws concerning altruistic surrogacy.

2. That it be harder for Australians to undertake surrogacy overseas to any country that has standards less stringent than Australia.

3. Consideration as to whether the names of the surrogate and her partner and the donor and any partner of any child conceived through donation and surrogacy might be included on the child’s birth certificate.

The Committee called for urgent reform. Since the Committee released its report in mid 2016, no action has been taken.

If the Committee’s recommendations about overseas surrogacy were to be accepted, then it may be considerably difficult for Australians to undertake surrogacy anywhere other than New Zealand as all culturally similar countries such as Canada, United States and the United Kingdom (aside from New Zealand) have standards that are less stringent than Australia when it comes to egg donation or surrogacy.

10. A prediction

Sooner or later there will be another big blow-up with surrogacy occurring in a developing country which has no laws in place, and has processes with IVF and surrogacy described previously by Chief Justice Pascoe as being like the Wild West, where anything goes – at which point that country will engage in a knee jerk reaction to close down surrogacy (as we have seen in the past in India, Nepal, Thailand, Cambodia and Mexico) at which point there will be calls to increase regulation including international regulation concerning surrogacy.

Whether it deals with the underlying dynamics – couples who have legitimate expectations that they will become parents and have the means to do so – is another matter. We shall wait and see.

13 September 2017

Stephen Page

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[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane, Australia. He is a Fellow of the International Academy of Family Lawyers, including a member of the Hague/Surrogacy Project Committee. Stephen is an international representative on the American Bar Association’s ART Committee and was the principal advocate of and co-author of resolution 112b as to a proposed Hague Convention on private international law concerning children (including international surrogacy arrangements). He is a Fellow of the American Academy Adoption and Assisted Reproductive Technology Attorneys. He is a member of the Fertility Society of Australia and has spoken widely and written widely (including for the International Bar Association) as to surrogacy and family law.

[2] Australian Institute of Aboriginal & Torres Strait Islander Studies.

[3] Source: Australian Institute of Health & Welfare.

[4] e.g. Reiby & Meadowbank [2013] FCCA 2040

[5] ASRM Ethics Committee Report, Financial Compensation of Oocyte Donors (2011)

[6] e.g. s.21 Prohibition of Human Cloning for Reproduction Act 2002 (Cth)

[7] Interview with the Medical Director of Cape Fertility Clinic, March 2016.

[8] Source: Mr Sam Everingham of Families Through Surrogacy, 2016.

[9] Pearce v. South Australian Health Commission[1996] SASL 5801; McBain v. Victoria[2000] FCA 1009.

[10] Farnell and Chambua [2016] FCWA 17.

[11] [2016] FCWA 17

[12] e.g. Florida, Hawaii, Iowa, Minnesota and sometimes Oregon.

[13] [2016] FamCA 1051.