International surrogacy paper

Thursday, November 21, 2013

Last week I presented about international surrogacy issues at the conference of the American Academy of Assisted Reproductive Technology Attorneys in Charleston, South Carolina.

Here is the paper that I presented:

American Academy of Assisted Reproductive Technology Attorneys

The World of Assisted Reproductive Technology: A Global Approach to Family Formation in the United States and Abroad

The dirty dozen rules in international ART

Stephen Page

12 November, 2013

Charleston, South Carolina

“Governments don’t play God. Governments shouldn’t tell us when to have children.”[1]

Rule 1: Don’t believe everything you read on the internet.

“It seems clear that prohibition of surrogacy does not work and in Australia, most States approach this difficult policy issue by way of regulation. Such regulation is difficult in a globalised world where travel from continent to continent is no longer difficult. Added to this, in some parts of the western world, there is wealth to the extent that funding of surrogacy (whether commercial or altruistic) is easily achieved…

Modern science and medical skill surrounding the creation of life are now well ahead of legal, social and legislative policy. In Australia the creation of effective policy will be difficult particularly on a State by State basis. These policy issues probably need to be dealt with on a national, whole of continent consistent basis, including having regard to Australia’s international treaty obligations.”[2]

“There are many and varied paths to parenthood. Where the path involves an international surrogacy arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.”[3]

My father, who was a very cynical man, used to say to me jokingly that if something were in the newspaper then it must be true. He frequently said to me that it was good to look at things with a sceptical eye to judge whether in fact what might be said might be the truth.

Unfortunately what I’m often seeing are intended parents who have entered into a surrogacy arrangement somewhere and realised that they are in a mess, usually when the surrogate is pregnant. They often end up there by having read something on the internet, believing it all to be true.

It sounds really basic, but it is absolutely essential that any intended parents (or for that matter surrogate or her partner or donor) contemplating entering into a surrogacy arrangement of some kind get good legal advice from all the places involved before wandering down the garden path of a surrogacy arrangement.

It is much easier to plan for matters than to try and dig clients out and save them.

I think it is imperative upon us who engage in the practice of surrogacy, particularly international surrogacy, that we publicise issues of concern and emphasise repeatedly that those contemplating surrogacy ought to get legal advice before they start the process – not advice from their friends or the people they have talked to on the internet or other intended parents who have avoided going to lawyers. It may be that their friends were very fortunate and had a dream run by somehow walking through a minefield and avoiding stepping on any of the mines. However if they get stuck then they’ll get stuck big time.

Although it is an adoption case, at the time of writing I have just read of a story of a Canadian woman who went to Pakistan to adopt a child. She cleared it through Pakistani authorities and the courts, and Canadian Federal authorities, but not those of Saskatchewan, resulting in her and the baby being stuck in Pakistan. One would like to think that good legal advice ahead of time would have prevented this.

Example of what not to do

Amit and Nalini are an Indian Australian couple who live in New South Wales. Surrogacy is their only option. There are no Indian donors in Australia so they decide to undertake commercial surrogacy in India. They look it up online and discover that there is a wonderful doctor in India who can help them. They pay him A$20,000, roughly equivalent to US$20,000 and think they have got a bargain.

The doctor is insistent that there is no paperwork between them and the surrogate. The doctor tells them that the surrogate must be anonymous as must the egg donor. They never meet the surrogate. The surrogate is pregnant but then has a miscarriage.

A second surrogate is engaged. Again there is no paperwork. There is one document referring to IVF, which the doctor has re-written to refer to surrogacy. The doctor has backdated the document to overcome the legal hurdles in New South Wales. Unbeknownst to them Amit and Nalini have committed a criminal offence in New South Wales punishable by up to 3 years imprisonment as to the surrogacy and potentially a 15 year jail term in relation to the commercial trade in eggs. They have blundered into this arrangement out of ignorance.

To increase the chances of the second surrogate (assuming that there is in fact a second surrogate, again anonymous and with a lack of paperwork) to become pregnant, the doctor implants 6 embryos. There is no discussion with the intended parents as to the possible consequences as to the surrogate’s or children’s health. The surrogate is pregnant, apparently, with one baby. The intended parents knew nothing about selective reduction until after I raised it.

A lack of paper work means that there may be difficulties for the intended parents to prove that there has been a surrogacy arrangement to satisfy Australian migration officials, in order to convince them that it isn’t a child trafficking case and it doesn’t fall foul of the Hague Convention on child abduction or the Hague Inter Country Adoption Convention.

At the time of writing, I do not know if the child will be able to come to Australia.

Going to India- with a twist

It is legal to undertake altruistic surrogacy overseas for residents of every Australian State and Territory. However, it may not be practical to do so. Clients of mine who were Indian-Australians wanted to undertake altruistic surrogacy in India with a close relative. It would appear that because Indian practice (and the approach of the Department of Immigration and Citizenship) is heavily tilted towards commercial surrogacy in India, undertaking altruistic surrogacy there is extremely difficult.

Rule 2: What is legal there may result in jail here.

This applies both ways, see Rule 1. There is a common misconception that because commercial surrogacy, for example, is legal in California therefore it is legal in Australia.

To give examples of this problem:

· in three of five jurisdictions in Australia it is an offence to enter into a commercial surrogacy arrangement overseas.

· in seven out of eight jurisdictions in Australia it is a criminal offence to enter into a commercial surrogacy arrangement in Australia.

· in all Australian jurisdictions it is a criminal offence, punishable by up to 15 years imprisonment, to engage in the commercial trade in eggs, sperm or embryos.

· in several jurisdictions the offence of entering into the commercial trade of eggs, sperm and embryos may also apply outside the jurisdiction so that for someone from New South Wales, Queensland or Western Australia may unintentionally commit the offence while having gone to an egg donor agency overseas. In other jurisdictions such as Victoria, it is not a criminal offence overseas.

All parties involved in a surrogacy arrangement need to know before the arrangement commences as to the lie of the land with the law in practice in all relevant jurisdictions. What may be perfectly acceptable practice, indeed industry best practice in one jurisdiction may be a criminal offence somewhere else.

Example

Fred and Ethel live in Sydney. They were born in Sydney. Due to their international careers, they have left Sydney and moved to New York. They contemplate undertaking surrogacy in California. Although they own a property in New York in reality they don’t live there. Their lifestyles are so busty they live as nomads throughout the world. They contemplate moving to London.

Thankfully, they haven’t entered into a surrogacy arrangement yet. While Queensland, New South Wales and the Australian Capital Territory make it a criminal offence to enter into a commercial surrogacy arrangement overseas, the scope of the New South Wales legislation is the broadest because it covers not only those who are ordinarily resident in New South Wales but also those who are domiciled in New South Wales. Australian law recognises both domicile of origin and domicile of choice. Domicile of choice overrides domicile of origin unless there is no domicile of choice, in which the reversion is to domicile of origin.

Fred and Ethel are currently domiciled in New South Wales by birth. If they enter into a commercial surrogacy arrangement whilst living as nomads somewhere in the world then they may have committed an offence in New South Wales! If they later come to New South Wales, for example returning for the family Christmas then bizarrely they could be prosecuted there. The offence may be prosecuted on indictment, an effect of which means that there is no time limit for prosecution.

If Fred and Ethel reside in New York then they need to get advice from a New York lawyer as well as an Australian and Californian lawyer. If they move to England they need to get advice there first before making the move.

It is possible to register overseas child orders under the Family Law Act 1975(Cth). Section 70G provides:

“The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.”

The Family Law Regulations allow for orders made in prescribed overseas jurisdictions, primarily the United States, to be registered under the Family Law Act, which then have the effect by virtue of sections 70H and 70J of the Act as if they were made by the overseas court under Part VII of the Family Law Act .

Anecdotal evidence exists that it is not possible to register a surrogacy order made in the United States in Australia because such an order involves the termination of parental rights, an order that is not otherwise possible under Part VII of the Family Law Act. An order terminating parental rights is to the Australian public benefit, because it terminates rights of custody under the Hague Abduction Convention. The existence of such an order is considered by the Department when considering citizenship of the child. Such an order also ought be determinative in Australia of parentage.

Example

Reuben and Jack undertake commercial surrogacy in California. They are Australian. A child is carried by a gestational surrogate. The child is genetically that of Reuben and an egg donor. The surrogate and her husband have no genetic relationship with the child. The surrogate is paid a fee. Prior to the birth of the child, the surrogate and her husband consent to an order being made in the Superior Court of California at Los Angeles granting custody to Reuben and Jack, naming Reuben and Jack as the parents, and terminating the parental rights of the surrogate and her husband. The surrogate and her husband were represented in those proceedings. Reuben and Jack are then named on the birth certificate as the parents.

Armed with that order, Reuben and Jack seek to register the order with the Family Court. Registration is refused because, they are told by a Registrar, as the Family Court does not have the power under Part VII of the Family Law Act to terminate parental rights, then the order is not capable of being registered.

However, a recent Family Court decision has indicated that it may be possible to register overseas surrogacy orders under this section. However, this might be limited to those who are ordinarily resident in the overseas jurisdiction at the time of conception and birth.[4]

Rule 3: You say tomato…

Probably one of the easiest overcome issues, but nevertheless frustrating ones is that of language. I am not talking of accents! I am talking about jargon. When your counterpart or client is not an English speaker then things become even more interesting. Patience is a virtue.

Examples of language differences- from within Australia

You may call them	I call them	Others call them	Others call them	Or even
Intended parents	Intended parents	Commissioning parents	Substitute parents	Parents
Bio and non-bio dad	Intended parents	Commissioning parents	Substitute parents	Father and parent
Bio and non-bio mum	Intended parents	Commissioning parents	Substitute parents	Mother and parent
Surrogate	Surrogate	Surrogate mother	Birth mother	Mother
Surrogate’s husband	Surrogate’s husband	Birth father	Birth parent	Father
Surrogacy agreement	Surrogacy arrangement	Surrogacy arrangement	Registered surrogacy agreement	Substitute parent agreement

Rule 4: Citizenship and residence are not the same.

Often citizenship and residence are the same, but sometimes they are not. This necessarily adds to complications.

Georgina lives in England. She is single and an Australian. She wants to have a baby via surrogacy in India (before the changes occurred last year) and, have the baby live with her in England but to ensure that the baby has Australian citizenship. Georgina is ultimately successful in her quest but in the process engaged the following:

Lawyer

Surrogacy agent and surrogacy agency in India

Surrogacy lawyer and migration agent in Australia

Surrogacy lawyer and migration lawyer in England

________________________

Lucy and Ricky live in Singapore. Lucy is Italian. Ricky holds Australian UK citizenship. They wish to undertake surrogacy in India. They have heard that it’s pretty straight forward.

On 9 July 2012 the Indian government issued a decree specifying that intended parents needed to obtain a surrogacy visa. In order to be eligible they needed to be married for 2 years and surrogacy needed to be legal in their country. Ricky comes from New South Wales. Lucy and Ricky live permanently in Singapore so the issue of domicile in New South Wales doesn’t arise. The Indian government requires a letter from the country of the applicant for the medical visa to say that surrogacy is legal.

Is the relevant country for Ricky and Lucy Singapore, Italy, the United Kingdom or Australia? Singapore won’t write the letter. The UK will write a letter. Italy almost certainly won’t write the letter. Australia will write the letter. If Ricky is considered to be “ordinarily resident” in Queensland, New South Wales or the Australian Capital Territory, or domiciled in New South Wales, then he will not be eligible under Australian rules. Ricky and Lucy are obtaining advice from an Indian Surrogacy lawyer and a Singaporean lawyer.

Rule 5: No one may know what happens there (or here).

All too often clients assume that the answer must be known and it must be obvious. Because surrogacy is so new in many parts of the world or so few lawyers if any are undertaking surrogacy work often it is impossible to determine what is the state of law. Sometimes the state of practice is opposite that of the state of law- and often what is to happen is not known.

Example

Australia has decided on a harmonised “system” of surrogacy essentially allowing for (or altruistic as it is called in Australia) surrogacy to take place. One might think that there would be a seamless system. This would be a terrible mistake. Australia’s two biggest cities are Sydney and Melbourne each with a population of about 4 million. If intended parents live in Sydney, New South Wales but the proposed surrogate and her husband live in Melbourne, Victoria, then under the Australian rules it will be a New South Wales surrogacy arrangement. One imagines that when politicians legislated to allow surrogacy that the aim of the exercise was not only to legalise and regulate surrogacy but also to allow the intended parents to be recognised as the parents of the child. That is true for those born in Victoria through a surrogacy arrangement – but only if the surrogacy arrangement is a Victorian surrogacy arrangement. If the surrogacy arrangement is a New South Wales surrogacy arrangement but the child is born in Victoria then it would appear that the birth certificate in Victoria can’t be changed.

When I raised this with New South Wales and Victorian Attorney’s General, the response from New South Wales was quite simple. We’re not going to change the law in New South Wales or Victoria, but we will allow a new birth certificate to issue in New South Wales for the child to reflect the New South Wales parentage order. This has the anticipated outcome that a child will have two conflicting birth certificates!

See the letter that I recently received from the New South Wales Government which is attached to the end of this paper. I am now told that the Victorian government will now destroy the birth record in Victoria after the NSW parentage order is made.

Example

Clients of mine were the first to obtain a Queensland parentage order which took effect with the NSW Registrar of Births, Deaths and Marriages. The NSW legislation quite clearly allows interstate parentage orders to take effect. That may be, but instead of a relatively quick process, the process took 5 months, because officials did not know what to do.

A constant problem that I am striking is as to the state of law in other countries and trying to find lawyers who know anything about surrogacy law in those countries. Despite my best efforts I’ve not yet had responses from possible lawyers who can advise about surrogacy in most of Asia. Lawyers there simply don’t want to touch it.

It is essential that we try and arm our clients with as much information as possible so that they can make an informed decision.

I see that as also essential that given that surrogacy is so new in so many parts of the world that we try and engage and network with other lawyers and professionals in those countries so that there is a system of knowledge about surrogacy and the laws concerning surrogacy throughout the world.

Rule 6: In different parts of the same country, different rules might apply.

You saw my examples above about New South Wales and Victoria, and New South Wales and Queensland.

There is an assumption by many in Australia that the only place that undertakes surrogacy in the United States is California. There is also a common assumption in Australia that the rules throughout the United States are the same.

There is also a common assumption in Australia that surrogacy rules throughout Australia are the same. To give you an idea of the complexities in Australia:

· We have nine systems of law concerning surrogacy, namely at the Federal level (Commonwealth) and in the eight States and Territories;

· The Northern Territory has no laws concerning surrogacy, which has the bizarre effect that to all intents and purposes surrogacy can’t be practised there and Territorians must go interstate or overseas;

· Queensland and New South Wales, ACT, Tasmania and South Australia have a model involving legal advice and counselling;

· Victoria and Western Australia each have a State regulator requiring pre-approval before the surrogacy arrangement can proceed;

· To be an approved surrogacy arrangement in ACT, Victoria, South Australia and Western Australia the medical treatment must occur in that jurisdiction. There is no such requirement in for example Queensland and New South Wales;

· With an exception for the best interests of the child, all parties to the surrogacy arrangement must reside in Tasmania;

· The intended parents must reside in Western Australia, South Australia, Victoria and the ACT before the surrogacy arrangement commences. They can reside in New South Wales or Queensland until later, which can have an impact on overseas intended parents who are Australian expatriates;

· Singles need not apply in the ACT or South Australia. Same sex couples need not apply in South Australia. Single men and gay couples need not apply in Western Australia, but for some reason single women and lesbian couples are okay.

My triumph: world first case concerning conception

Last year I obtained a decision from a Queensland judge which is the first case in the world in which conception has been defined[5]. Conception was defined by Judge Clare, SC as the time of pregnancy. Her Honour stated:

“The meaning of the term “conceived” as used in s 22(2) (e) (iv) [ of the Surrogacy Act] is critical to the court’s jurisdiction in this case. This is because the embryo was created years before the surrogacy arrangement, then frozen and not implanted in the uterus until months after the written arrangement was settled. The question now is whether the reference to pre conception as the cut off point in s 22(2)(e)(iv) means before the creation of the embryo or simply any time before the transformation of the embryo into a pregnancy. If it were an earlier point in time, the court would have no power to make a parentage order for [the child].

What does “conceived” mean?

The act offers no definition. It seems this is the first time a court has been asked to interpret s22 (2) (e) (iv). Nonetheless, the answer seems obvious. Whatever approach to statutory interpretation is applied, whether it be to view “conceive” as a technical term, or it its everyday meaning, or the meaning that best advances the purposes of the Act, the result is the same. The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body.

The everyday meaning

The phrase “conceived a child” is in common usage. It is commonly understood to refer to an actual pregnancy.

One must examine the context of the provision[1]. This is a provision about surrogacy. As expressed in s.5, the purpose of the Act is to safeguard the interests of the child and regulate surrogacy agreements. There is an underlying intention to protect the birth mother from duress to surrender her child. Such issues only emerge after a pregnancy occurs. The Act applies to all forms of conception. The use of in vitro fertilisation is now widespread. In my experience when lay people talk about IVF treatments they tend to reserve the term “conceive” for the circumstance where an embryo actually takes to the uterus and the woman succeeds in becoming pregnant as distinct from the procedure of implantation. I am satisfied that in the ordinary everyday language of the community, the term “conceive a child” means more than what can be achieved in a test tube and refers to the commencement of a pregnancy in a woman’s body. This is consistent with the current editions of both the Oxford English dictionary and the Macquarie Dictionary. They define “conceive” as, inter alia. “to become pregnant”. The former publication also defines “conceived”, the adjective, as “brought into embryonic existence in the womb”.

To construe the cut off point in s 22 (2) (e) (iv) as the point of pregnancy (and therefore after fertilisation) is also consistent with the definition of “surrogacy arrangement” in s 7 of the Act.

The (intended mother’s) eggs were fertilised and preserved before she underwent the emergency procedure that saved her life but left her unable to carry her own children. This was before the Surrogacy Act had come into existence. It was therefore impossible for her to enter into an arrangement under the Act before the embryos were created. The same situation is readily foreseeable for any woman undergoing emergency procedures even after the commencement of the Act. A woman desirous of having a baby, would little hope of securing a compliant surrogacy arrangement in advance of an emergency hysterectomy, given the requirements for the identification of a willing surrogate, proper counselling and legal advice with time to reflect on all of the implications. The Act is intended to help such people in genuine need of surrogacy. Therefore to interpret the preconception condition as a condition to be satisfied before fertilisation would not only be contrary to the ordinary language of the provisions, it would frustrate the underlying intention of the Act. There is no reason to reach beyond the common language for the interpretation of s 22 (2) (e) (iv).

The expert evidence

The Court has an affidavit from Dr Nasser an obstetrician and gynaecologist involved in the case, as well as various definitions from medical dictionaries. Of course the construction of the statute is a matter for the court, not doctors, but the expert evidence of the biological processes is relevant to that task. According to Dr Nasser:

“The creation of the embryos in 2008 was an act of fertilization. Fertilization is a step on the path way to conception. Many eggs fertilize but many fewer pregnancies are conceived. The act of conception or the act of conceiving the pregnancy was the actual embryo transfer and the subsequent implantation of that embryo into the uterus of [the birth mother] over the next couple of days with the eventual positive pregnancy test approximately two weeks after …July 2011… The act of conceiving in this case is viewed as the act of achieving a pregnancy. Therefore, I view the conception of [the child] as occurring from the embryo transfer on … July 2011.”Dr Nasser’s professional distinction between the processes of fertilisation and conception is consistent with the common understanding of what it means to conceive a child. The same can be said of the preponderance of definitions from the medical dictionaries cited. Despite extensive research, the parties have found only one case in which the meaning of conception was considered. This is the English case of R (John Smeaton on behalf of the Society for the Protection of Unborn children) v the Secretary of State for Health.[2] It was about the morning after pill and therefore considered conception through sexual intercourse rather than scientific intervention.”

The three models of surrogacy regulation in Australia

There is little commonality as to regulation of surrogacy in Australia. There appears to be little if any recognition that other parties may be outside State boundaries, and little commonality of approach. The best that can be said is that the then Standing Committee of Attorneys-General came to draft guidelines as to surrogacy. These guidelines have never been finalised, and nor have the laws been harmonised.

There are three models of surrogacy regulation throughout Australia:

Model 1: No laws: NT

The Northern Territory has no laws about surrogacy. This means that it is legal to engage in surrogacy in the Northern Territory. In reality, all that is available is:

• Traditional, altruistic surrogacy

• Traditional, commercial surrogacy

As there are no laws, there is no ability to obtain a parentage order. This then impacts on any potential surrogates who live in the Northern Territory when the intended parents live interstate: if the surrogate gives birth in the Northern Territory, then a parentage order made interstate will not be able to name the intended parents as the parents of the child, as there is no ability to alter the birth register.

For the same reason, namely the inability to obtain an order, the only IVF clinic will not provide surrogacy services. Because of licensing requirements the clinic cannot offer commercial surrogacy services.

Example

Benny and Belinda live in Cairns. They need to undertake surrogacy. Belinda’s sister, Bella, lives in Darwin. Bella offers to be their surrogate. Bella operates her own business. If Bella gives birth in Darwin, Benny and Belinda cannot ever be named as parents on the birth certificate. The ability to privately adopt in Queensland for example is highly circumscribed . If Bella travels to Queensland to give birth, this might have a devastating effect on her business.

Example

Jack and Marjory wish to undertake surrogacy. They live in Darwin. They are both in secure employment. They would prefer to undertake altruistic surrogacy. Given the barriers facing them, they either have a choice of moving interstate, or undertaking surrogacy overseas. They choose to undertake commercial surrogacy in India.

Model 2: Light regulation: Qld/NSW/ACT/SA/Tas

The key feature about this model is the need to have a surrogacy arrangement. The arrangement is not required to be in writing, but if not obtained, doctors will not treat and courts will not make parentage orders.

The common feature is that there is mandatory counselling and legal advice before the surrogacy arrangement is signed and that before a parentage order is obtained, an independent report is obtained, similar to a family report, to ascertain if the making of the order is in the best interests of the child .

Queensland requires counselling beforehand, and an independent assessment after.

NSW, when it followed the Queensland model, requires this too, but also requires relinquishment counselling of the surrogate and her partner after having given over the child. In practice there appears to be little benefit in relinquishment counselling, as any issues that might be raised there can be adequately raised in initial counselling, in the obtaining of legal advice and in the report process.

ACT requires counselling and assessment from an independent counsellor which can have occurred before or after the surrogacy arrangement is entered into.

SA is similar to Queensland, but before the surrogacy arrangement is signed up, there must be a counsellor who makes an assessment of the suitability of the surrogate (it is not said how this will be achieved, nor whether the intended parents are to be counselled at this point) and more counselling, from different counsellors of the intended parents and the surrogate and her partner.

Tasmania largely follows on the Queensland model, with some additions from SA and NSW. While a magistrate can order an independent report, the requirement is that a counsellor see the parties before and after the process.

My views as to best practice:

• Have one counsellor undertake pre-signing counselling for all parties, who provides a written report to the IVF clinic, which is also made available to the parties, and if the matter proceeds to court, to the court. It is essential in my view for issues of difference to be sorted out in counselling, and that the parties although they have different perspectives have a common shared vision for the child and the surrogacy arrangement. It is my view that the South Australian model potentially hampers this process at commencement.

• There ought to be a post-birth independent assessment much like a family report, so that the court can be assured that the orders it makes are in the best interests of the child.

• The practice of one of the pioneers of surrogacy in Australia, the Canberra Fertility Clinic is the ideal as to counselling: namely after initial counselling, that there be counselling between the key parties (typically the intended mother and the surrogate) at:

• 3 months pregnant

• 6 months pregnant

• 3 months post-birth

I am of the view that it is essential that any possible difficulties are likely to be ironed out through counselling. Given that it is likely that the surrogate and her partner will play a part in the child’s life for the rest of their lives, a smooth start for that child’s life is essential. I don’t believe that this process of extra counselling on the Canberra model needs to be part of regulation, but part of best practice standards adopted by, say, ANZICA .

Model 3 Heavier regulation: Vic and WA

Both Victoria and WA have a State regulator. The perception of intended parents is that the system is very slow, costly, and invasive. I am told that the process to obtain approval from the Patient Review Panel in Victoria takes about 2 months, but I have had clients who spent 18 months going through the bureaucracy of their IVF clinic before treatment could commence. They gave up, and decided to go overseas instead.

The most damning words about what has happened in Western Australia were those of the Tasmanian Leader of Government Business in the Legislative Council, Mr Farrell, when rejecting the Western Australian model as a model for Tasmanian laws on surrogacy:

“I have been provided with a report that shows that when debating the surrogacy reforms in Western Australia the Attorney-General stated there were between 40 and 50 couples awaiting the passing of surrogacy legislation and that the government anticipated approximately 25 applications per year for parentage orders. After the legislation was passed it was nearly two years before any applications were received by the approval body. By November 2010, two applications for surrogacy had been approved and a further one was under consideration. The author of the report surveyed those people who had identified as wishing to utilise surrogacy but who had not done so. Overwhelmingly, the response was that the people simply could not meet the requirements of the legislation. Of those surveyed the majority were still intending to pursue surrogacy but outside the parameters of the legislation. The result of this is that there will continue to be children being raised by people who do not have legal parentage of them. As I outlined earlier, this is not in the best interests of the child.”

Example

George and Mildred are itinerants. Due to George’s highly desired work skills, they move from workplace to workplace. They are not “ordinarily resident” in any State as a result. This means that although at all times they are living in Australia (and are Australian citizens) they cannot access surrogacy in Australia as State (and ACT) laws in effect require them to reside in that jurisdiction.

Faced with the difficulty of not being able to access altruistic surrogacy, they decide that they wish to undertake commercial surrogacy in India. Here they are also caught. They cannot prove to Indian authorities that they are ordinarily resident in Victoria, Tasmania, SA, WA and the NT and not ordinarily resident in Queensland, NSW or the ACT.

Example

Barney and Betty are married. Betty lives in Brisbane. Barney works on a fly in fly out basis in the Pilbara. He works 3 weeks on, and one week off. On his week off, Barney returns to Brisbane. Is Barney “ordinarily resident” in Queensland or Western Australia? Barney may or may not be ordinarily resident in Queensland or Western Australia and therefore may be unable to access surrogacy in either place. Betty because she is resident in Queensland, can only undertake surrogacy in Queensland. Barney may be unable to access surrogacy in WA, and will have to show that he is resident in Queensland. If they wish to undertake surrogacy in India, Betty cannot as she is resident in Queensland.

Example

Bill and Ben live at Griffith Street, Coolangatta, Queensland. They are a gay couple. They wish to undertake surrogacy. Fearful of the Newman government’s views about gay men undertaking surrogacy, they undertake commercial surrogacy overseas. Bill and Ben have committed offences in Queensland of entering into a commercial surrogacy arrangement, and of making payment under a commercial surrogacy arrangement. By the time they bring the baby home, they cannot be prosecuted for the entering into a commercial surrogacy arrangement offence, as the time limit has expired. However, they are liable to up to 3 years imprisonment for the offence of making payment under a commercial surrogacy arrangement, for which they could be prosecuted for up to a year after payment, i.e., when their child is a year old.

By contrast, Bill and Ben move to live on the other side of the street in Griffith Street, Tweed Heads, New South Wales. The offence in NSW is entering into the commercial surrogacy arrangement. They have not been prosecuted. Their son is by now 16. During a show and tell, he tells the class that his dads paid for commercial surrogacy overseas. Another class member goes home and tells his dad of what happened in the class room. That dad complains to police. Bill and Ben are prosecuted for the offence- for which there is no time limit in NSW.

Example

Michael and John live in London. They both come from South Australia. John’s sister Judy has offered to be their surrogate. Judy lives in South Australia. At first blush, a surrogacy arrangement could not occur: the Family Relationships Act requires the intended parents to be married or in a heterosexual de facto relationship . It also requires the intended parents to be domiciled in South Australia . To achieve a surrogacy, surrogacy would need to occur in NSW or Queensland, provided that:

o Judy was prepared to travel to Sydney or Brisbane for treatment. The effects of the Family Relationships Act mean that treatment for surrogacy in South Australia has to occur in South Australia , and it is unlikely that an Adelaide IVF clinic would offer treatment.

o Michael and John move to live in Queensland or NSW. It is a requirement under those States’ Surrogacy Acts , the most liberal on this point, that they have to reside in those States at the time of the hearing of the application for a parentage order.

Example of absurdity

Fred and Ethel are high school teachers in the NSW school system. They live and work in Albury. They wish to undertake commercial surrogacy overseas. To do so in NSW they run the gauntlet of a triple penalty: not only possible conviction, but loss of jobs in the public service and deregistration as teachers.

They make a decision. They rent a house in Wodonga, about 15 minutes away. They remain employed as NSW high school teachers and commute between Wodonga and Albury. After moving, and now being ordinarily resident in Victoria, they enter into a commercial surrogacy arrangement in India. It is legal for them to do so.

Example of absurdity

Although surrogacy was legal in NSW it was not legislated for. It was not possible to obtain parentage orders. In 2010, then NSW Attorney-General John Hatzistergos announced that NSW would have laws based on the Queensland model.

One would think that this would involve copying the drafting of the Queensland legislation. It didn’t. No apparent thought was given to those who live across State borders. One might have thought that this was obvious, given that IVF clinics on the Gold Coast are the only clinics providing services to the far north coast of NSW. No, it was not to be.

Mike and Tyson live in Queensland. They want to undertake surrogacy. Mike’s friend Polly living in NSW offers to be the surrogate. When I looked at the equivalent section of the NSW Bill to that in the Queensland Act covering allowable expenses, it appeared to be comparing chalk with cheese. I could not tell whether they were the same or different. The drafting was quite different. It was important to know: otherwise the surrogate might be inadvertently committing a serious criminal offence in NSW by entering into a commercial surrogacy arrangement. Two paralegals in my office were given the task of reading the two provisions side by side. The verdict: they were the same!

Mike, Tyson and Polly’s children are born in NSW. Because Mike and Tyson live in Queensland they must apply for a parentage order in Queensland. The judge questions why the application is brought there, until it is pointed out that they cannot bring an application in NSW and must bring the application in Queensland, in accordance with the scheme. A parentage order is obtained. It is forwarded to the NSW Registrar of Births, Deaths and Marriages in accordance with the procedure outlined by that office. It is the first interstate matter before the NSW Registry. It took 5 months to have the children’s birth register altered! This is despite NSW and WA being the only States to specifically provide for alteration of birth records resulting from interstate parentage orders. By contrast, processing time for a parentage order made in the Children’s Court of Queensland by the Registry in Queensland is 2 to 3 days!

The officer of the Registry suggested to me:

The order should have been made by the Supreme Court of NSW. I pointed out that the Supreme Court could not do so as the intended parents reside in Queensland.

The order should have been transmitted to the NSW Registry by the Queensland Registry of Births, Deaths and Marriages. It was pointed out by me that the view of the Qld Registrar was that because the children were not born in Queensland, the Queensland Registrar has no interest in them and will therefore not transmit.

The order should have been transmitted by the Children’s Court as the official could not be satisfied that the order was made by the court. I pointed out that the court does not transmit orders as a matter of practice, In any Case the Registry had the duplicate sealed order!

The order should have been sent to the Supreme Court of NSW for transmission. I pointed out that that court would not want the matter as it lacked jurisdiction.

The matter should be dealt with in Queensland because it was akin to adoption. I pointed out that it was surrogacy, not adoption, and that there was specific NSW legislation on point.

I note that because the Queensland Parliament chose for the Children’s Court to make parentage orders (and similar approaches are taken in Victoria , South Australia and Tasmania), there is an inability of the Queensland court to exercise the cross-vested jurisdiction of the NSW Supreme Court.

In my view surrogates are amazing people. They are prepared to risk their lives to enable others to achieve the joy of parentage. In my view they ought to be cherished. South Australia and Victoria apparently gave little thought about how to protect them.

Example: South Australia: outrageously failing to care for the surrogate

Pam and Martina are sisters. Pam lives in Adelaide, Martina in Brisbane. Both are married. Pam offered to be Martina’s surrogate. It is my invariable practice that intended parents provide adequate life insurance, health insurance and disability insurance for the surrogate. If she dies or is severely injured in childbirth, what impact will that have on her husband and children?

Luckily, Pam had adequate insurance anyway and did not need to be covered. If she had insurance provided by Martina and Martina’s husband, Pam would have committed a criminal offence because under South Australia’s Family Relationships Act, that payment was not allowable , and would have meant that the surrogacy arrangement was a commercial arrangement, which would have been the commission by Pam and her husband of a criminal offence.

Example : NSW and Queensland

Roger and Venus live in NSW. They are the intended parents. Rod and Yvonne live in Queensland. Yvonne is the surrogate. The child is born in Queensland, and therefore registered in Queensland. Because Roger and Venus live in NSW, they must necessarily make a parentage order application in NSW. The application is heard in the NSW Supreme Court, but is dealt with on the papers, in accordance with the process of the adoption list of that court. The result? The order refers to adoption, even though it is a surrogacy case. If the matter had been heard in open court, this might have been avoided. It is the second or third interstate matter to be processed by the Queensland Registrar of Births, Deaths and Marriages. The Registrar proposes to deal with the alteration of the birth record as an adoption matter because of the word “adoption” on the order. The previous matter, also marked “adoption” from a NSW Supreme Court parentage order, has resulted in the birth record being sealed, to the potential detriment of the child. The same sealing would not occur in a surrogacy case. The Supreme Court ultimately removes the word “adoption” from the form of order, allowing the alteration of the register to recognise a parentage order.

Rule 7: Children have a right to know who they are, and where they come from.

“Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”[6]

“It is important to remember, when looking at surrogacy from a legal point of view, that each surrogacy arrangement involves real people with real emotions. Most important of all is the child, who must be assured of their safety, citizenship and identity.”[7]

I believe that it is the right of every child to know where they’ve come from, and that this is a fundamental human right.

In our country there was a shameful practice which peaked in the 1960’s and 1970’s and which has resulted in apologies from State governments and the Federal government. It was the removal of children from their mothers, typically single women, at birth or within a couple of days of birth to be adopted by “good families”. This was often undertaken by religious organisations with the best intentions. It copied a practice that was undertaken for many decades when children were forcibly removed from indigenous mothers and adopted out to “deserving” couples. We are still dealing with the ramifications of those policies today. What has been obvious in listening to the stories of those who were adopted is that often they don’t know who they are or where they came from.

I recall many years ago acting for a husband in a Family Court custody dispute. The husband and wife had three children aged 5, 7 and 8. The dispute was bitter. The key event that led to the breakdown of the marriage and the bitterness of the dispute occurred many years before the marriage. It was the night before the future wife’s 21^st birthday. On that night her mother called her in and said: “Darling, there’s something we need to tell you.” The 21 year old sat down and was told, for the first time, that she was adopted. She was devastated and from that point on when her parents had told her such a fundamental lie she was never able to trust anyone ever again. That pattern of behaviour ultimately led to the breakdown of the marriage and no doubt lifelong impact on their children and probably their grandchildren.

It is essential in my view that intended parents are honest with their children about where they came from. It is essential that they identify for their children that there was a magical woman who was a surrogate. The ideal outcome is to have an ongoing relationship with the surrogate. I am extremely concerned about the model that is being adopted by many Westerners, but particularly by many Australians going to Thailand and India. I call this model the set and forget model. If they meet the surrogate it is only briefly. Often the surrogate does not speak English and after the transaction is done she goes back to her own village never to be seen from again.

What will happen to this child later on when he or she wants to find out who the magical woman was who carried him or her for the first critical 9 months and without whom he or she would not be in existence?

I am also deeply troubled that in some jurisdictions, particularly in India and Thailand there is an insistence on anonymity of donors. Australia has pursued a model, after rigorous inquiry, of donors either being known or open identification once the child turns 18, giving the child the option of having on going contact. What if as a matter of practice the child doesn’t have that choice and can never know who was genetically the parent and may never know their full family medical history?

Passports

As of 22 April, 2013, Passports Australia has required intended parents ensure that they secure the signature of any person who has parental responsibility for a child so that a passport issue for a child . Passports Australia has in turn defined the person who has parental responsibility as the surrogate. What Passports Australia has not said is that if the surrogate were in a de facto relationship or married at the time of conception, then the consent of her partner or husband is also required.

Be that as it may, in the set and forget model of surrogacy seen in India and Thailand in particular, this issue will increasingly cause intended parents grief when children’s passports need to be renewed every 5 years. It may prove impossible to locate, let alone obtain the consent of the surrogate and her husband/partner to a new passport issuing.

Before 22 April, 2013, Passports Australia did not need the written consent of the surrogate and her husband/partner to the issue of the birth certificate. Therefore passports have issued for children where that consent was not required, but when a renewal of that passport is sought, the consent of the surrogate (and her husband/partner) will be required.

Re Evelyn^{^[8]}– the nightmare case

Mr and Mrs Q were a childless couple living in Queensland. Dr and Mrs S were friends of theirs, living in South Australia. As is typical with an altruistic surrogacy arrangement, Mrs S offered to Mr and Mrs Q to be a surrogate. At the time, altruistic surrogacy was illegal in both Queensland and South Australia.

It would appear that neither Mr and Mrs Q or Dr and Mrs S had counselling or legal advice before embarking on the surrogacy journey.

It was a traditional surrogacy: Mr Q’s sperm and Mrs S’s egg. Following the birth of the child, and the handing over of the child to Mr and Mrs S, about 3 weeks after the child’s birth Dr and Mrs S went to visit the Q’s. Dr and Mrs S then took the baby, Evelyn. They had the right to do so- they were, then and now, under the law that is common throughout Australia, the parents of the child.

The matter was litigated bitterly in the Family Court. In today’s money it is fair to estimate given the intensity of the litigation that each of the Q’s and the S’s would have spent well in excess of $100,000, may be as much as $300,000.

Evelyn was ordered to live with the S’s. Almost certainly there would have been an extraordinary lasting bitterness in the litigation- for both the S’s and the Q’s. It was a dramatic demonstration of how not to undertake surrogacy.

Rule 8: A birth certificate may not make you a parent.

You may be a parent for some purposes but not others. It seems like a remarkable proposition, but some laws may recognise you as a parent in your home jurisdiction but other laws do not as I have illustrated above under Rule 6. It can be extremely distressing to clients to hear that their home country recognises them as parents only for some purposes and not others.

It is an absurdity worthy of Sir Humphrey Appleby[9]that s.69R of the Family Law Act 1975 (Cth) states the possibility of recognising overseas birth certificates, but no overseas jurisdictions are prescribed! Intended parents are stunned to learn that their name on the birth certificate is not, on the face of it, recognised in Australia.

However, as they are keen to point out, that same birth certificate is recognised by the local school, Medicare and Centrelink offices as to parentage and identity for the child. As they have pointed out to me, it enables the payment of money to them on the basis of parenthood by the same Government that says that they are not parents!

The impact of the failure to prescribe any jurisdiction is also felt at the State level, as part of the statutory scheme, for example, section 25 of the Status of Children Act 1978 (Qld). It seems extraordinary that no jurisdiction in the world, such as California or the UK, for example, is recognised in Australia.

Australia has a schizoid way of saying who is a “parent”.

In essence, there are three ways to say who is a “parent”:

• Birth

• Genetics

• Intent

Australia, confusingly, has chosen all three! It has done so this way:

• Under the Status of Children legislation in each State and Territory, adopted by the Family Law Act, the approach has been that of defining by birth. That definition in turn has in part made its way to the Australian Citizenship Act . This has been the approach taken in most Family Court cases concerning overseas surrogacy.

• The approach of the Department of Immigration and Citizenship, which has largely relied on genetics.

• The approach of two recent court decisions, which have relied on intent, and the reality of who was parenting the child concerned.

Therefore, a person might be recognised as a parent of a child for the purposes of citizenship, but because that person was not the birth parent of the child or married to or a partner of a birth parent of the child, is not a parent for State law purposes, and may not be a parent under the Family Law Act.

It is obvious that there may be a difference between a parent as a matter of law and a parent as a matter of genetics. If a “child” is born to an Australian citizen who is a “parent” then by virtue of the Australian Citizenship Act 1997(Cth), the child is taken to have acquired Australian citizenship by descent. If a child is born overseas where the child has been conceived naturally, there is no question who is the parent and who is the child. Genetics apply.

Stepping on mines: the Dudley’s (or Dennis’s)

Mr and Mrs Dudley (or Dennis )- same couple, different names used in different decisions in the Family Court, were a Queensland couple who undertook commercial surrogacy in Thailand, after 10 years of trying to become parents.

Their plan was to have two children. Two embryos comprising the husband’s sperm and from the eggs of anonymous donors were created. One embryo was implanted in one surrogate. Twins were conceived. The other embryo was implanted in another surrogate. One child was conceived.

With their 3 children, the husband and wife then applied for parentage orders in the Family Court. When they came before Justice Stevenson, her Honour made a parentage order in their favour for one child. When they came before Justice Watts concerning the twins, his Honour made a parentage order regarding the twins and referred them to the Queensland Director of Public Prosecutions.

A different approach as to referral to the DPP was taken by other judges, for example:

• Justice Stevenson in the earlier decision.

• Re Mark (2004) – where Justice Brown declined to refer.

• Lowe and Barry (2011) where Justice Benjamin did not refer.

• Ellison and Karnchanit (2012) where Justice Ryan did not refer.

Justice Watts referred because he believed, probably correctly, that there had been an offence committed under the then Surrogate Parenthood Act 1988 (Qld). However, at the time of the referral, the time for prosecution had passed. The children were born in August 2009. The time of the referral was 30 June 2011. Almost two years had passed. Prosecution in Queensland for the relevant offences had to be commenced within 1 year of the commission of the offence. My understanding is that the husband and wife were not prosecuted.

On the same day, Justice Watts referred another Queensland couple to the DPP for possible prosecution. They were well and truly inside the limitation period. My understanding is that they were not prosecuted either.

This is the standard approach taken under Status of Childrenlegislation, and seen in a series Family Law Act cases, especially Ellison and Karnchanit .

To rely on legislation that did not contemplate international surrogacy arrangements, has resulted in what appears to be more and more difficult reasoning.

In Ellison and Karnchanit, for example:

• Mr Ellison, who was the genetic father of the child, and named on the Thai birth certificate, was not recognised by that process as the father;

• He was recognised as the father following the discovery that at the time of conception the surrogate was not in living in a de facto relationship;

• It is unclear who might have been the mother- whether it was the intended mother, Ms Solano, the birth mother Ms Karnchanit, or the anonymous egg donor. In any event, Ms Solano was not recognised as the mother, even though this was no doubt her and Mr Ellison’s intent when entering into the surrogacy contract.

Three of the difficulties of defining a parent by birth (and thereby excluding the intended parents) are that:

• The person who had always intended to be parent, was the driving force to ensure the child’s creation, and parents the child on a daily basis may never be recognised at law as a parent (and therefore the child is never recognised at law as that person’s child, with potential adverse impact on the child’s psycho-social development);

• The need to obtain the consent of the birth parent every time the child’s passport needs to be renewed;

• The risk that children may unintentionally be disinherited.

A parent by genetics: the usual approach taken by the Department of Immigration and Citizenship

I understand that the approach taken by the Department varies from country to country and specifically:

• In India the approach of the Department is to insist that there is a genetic connection.

• In Thailand the approach of the Department is to insist on a genetic connection.

• For those intended parents going to the United States the approach appears to depend on the officer of the Department. Some are insistent on DNA testing. Others are satisfied with the making of custody orders, consistent with H v Minister for Immigration and Citizenship (see below for discussion of this case).

The formal position of the Department is as follows:

“A parent-child relationship is a question of fact to be determined by the department with regard to all the relevant circumstances.

In the majority of surrogacy arrangements, at least one of the intended parents is also a biological parent of the child. Normally, the biological parentage can be readily determined through medical records and/or DNA testing. Provided that DNA testing is carried out to approved standards the result of DNA testing is given substantial weight when determining if a person is a parent of another person.

See: Fact Sheet 23 – DNA Testing

Where there is no biological connection between an Australian citizen who is the intended parent and the child born through an international surrogacy arrangement, or where such a biological connection has not been satisfactorily established, it is necessary for an Australian citizen to provide other evidence to demonstrate that the Australian citizen was in fact the parent of the child at the time of the child’s birth. The type of evidence that would support such a claim is likely to require greater scrutiny and verification than DNA evidence. Consequently, an application based on such evidence may take significantly longer to decide.

Evidence that the parent-child relationship existed at the time of the child’s birth may include, but is not limited to:

• A formal surrogacy agreement entered into before the child was conceived

• Lawful transfer of parental rights in the country in which the surrogacy was carried out to the Australian citizen before or at time of the child’s birth

• Evidence that the Australian citizen’s inclusion as a parent on the birth certificate was done with that parent’s prior consent

• Evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support and making arrangements for the birth and prenatal and postnatal care

• Evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, where the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child.

• Evidence that the Australian citizen treated the child as his or her own from some point in time after birth would not by itself be evidence that the Australian citizen was the child’s parent at time of birth, but it would lend weight to evidence of the types previously listed.”

A parent by intent: H v. Minister for Immigration and Citizenship (2010)

The Federal Court rejected the approach taken by the Department of Immigration and Citizenship. The Department argued that the relevant test for who is a “parent”and who is a “child” under the Australian Citizenship Act was determined by genetics or determined by the relevant definitions under the Family Law Act.

In two cases decided side by side (neither of which was a surrogacy case) the Federal Court determined that with the poor drafting of “parent”and “child” under the Australian Citizenship Act, who was the “parent” would be determined by fact in each case, but appears clear to say demonstrated intent.

The Full Court of the Federal Court held:

“Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the ‘common bond’ mentioned in the preamble. Within this framework, there is, however, little contextual support for the proposition of the word ‘parent’ has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word. Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community…..Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word ‘parent’ in s16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage.”

The Court went on to say :

“There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of the s16(2), has the meaning it bears in ordinary contemporary English usage. Indeed legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.

The word ‘parent’ is an everyday word in the English language, expressive of both the status and the relationship to another. Today, in the Citizenship Act it self-recognizes, not all parents become parents in the same way….This is not to say that parents do not share common characteristics; an everyday use of the word indicates that they do.

Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; Today, biological connection in specific incidences may not be enough………. Perhaps in a typical case, almost all the relevant considerations, whether biological, legal, or social will point to the same person as being ‘the parents’ of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person is one’s own and treating him or her as one’s own.

The ordinary meaning of the word ‘parent’ is, however, clearly a question of fact, as is the question of whether a particular person qualifies as a parent within that ordinary meaning, implying s16(2)(a) the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be property described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parents’ conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledges the applicant as his own before and at the time of birth and, thereafter treated the applicant as his own, may justify a finding of that person as a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth…….

We can discern no relevant justification for holding…….that a person can only be a ‘parent’ within the meaning of s16(2) where it can be established that he or she has a relevant link to the applicant. If the Minister’s arguments in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on a DNA test undertaken for other reason, that under the law he is not and never was a citizen……….As a practical matter, we do not consider that Parliament would have intended the likely unfortunately results of the Minister’s construction……….The practical effect of this construction would be to accord the science of genetics a status Parliament has not given it.”(emphasis added)

Significantly, the court found that:

• An Australian man who met a Chinese woman on the internet when she was pregnant to a Chinese man, and agreed to marry her, have his name on the birth certificate as the father of the child and raise the child as his own, was a parent. On this point the court took a similar approach to the US Supreme Court; and

• An Australian man who for 30 years had believed he was the father of a child, but was not, but had acknowledged paternity, brought the child into his family including paying child support, and he and his wife and children visited the child, was also a parent.

The significance of the case is:

o It sets the benchmark for who is or who is not a “parent” of a child for the purposes of the Australian Citizenship Act;

o It sets out clearly that proscriptive definitions of who is or who is not a parent can fail because they do not take into account unusual or unexpected cases.

In neither case was there any DNA link between the two men and their children. Neither did the Family Law Act definitions apply.

Clearly, if an intended parent enters into a surrogacy arrangement with the intention of raising a child of their own (even if they do not supply their own DNA) then they may well be a “parent” having regard to the facts of the case as decided in H.

This approach was similarly accepted in Re Blake, where the Family Court of Western Australia noted that if the birth definition of who is a parent were adopted, under that State’s Artificial Conception Act 1985 (WA), then neither of the intended parents would be recognised as parents, but instead looked to the intention of those concerned, or as her Honour referred to it, the reality- who was parenting the children.

Rule 8: You may be a parent for some purposes but not others.

Why are custody orders needed for Australians going to the US, sometimes in Thailand but not in India?

Each overseas country has its own procedures. Officers of the Department of Immigration and Citizenship wish to ensure, as part of Australia’s international obligations, as Australia is a signatory to both the Hague Inter-Country Adoption Conventionand the Hague Abduction Convention,that children born through surrogacy arrangements aren’t children who have been improperly abducted, sold or adopted in the overseas jurisdiction.

India is not a signatory to the Hague Abduction Convention, but Thailand and the United States are. Because Thailand and the United States are both signatories to the Abduction Convention, the best practice is to have court orders in place to overcome issues to do with the Abduction Convention. As Ellison and Karnchanitmade clear, to all intents and purposes there is not an ability to obtain an order in Thailand. Therefore intended parents were applying in the Family Court for parenting orders.

However the Department of Immigration and Citizenship has in respect of intended parents in Thailand since late 2011 not required the obtaining of court orders, but instead has interviewed the surrogate at the Embassy, to establish that she consents to the removal of the child from Thailand.

One feature of Ellison and Karnchanit is that the Australian intended parents simply did not know the marital status of the surrogate. If the surrogate had been married, her husband could quite properly make complaint to Thai authorities that his child, who was habitually resident in Thailand at the time of birth, had been removed from Thailand without his consent, prompting action under the Abduction Convention.

Example:

Bill and Joe Bloggs undertake surrogacy through the You Beauty Rippa Surrogacy Agency in Kerala which specialises in surrogacies for Australians. The surrogate is implanted with an embryo comprised of Bill’s sperm and the egg of an anonymous Caucasian donor. When the child is born it is clearly not Caucasian. Despite the terms of the surrogacy agreement, the surrogate did not stop having sex with her husband. The child was found to be genetically the child of the surrogate and her husband.

The Department would not ordinarily consider Bill and Joe to be “parents” of the child if they are not genetically related to the child. However despite everything that had occurred, they decided to raise the child as their own then within the meaning of H v Minister for Immigration and Citizenship, it is likely that they would be the “parents” of the “child” who would be entitled to Australian citizenship by descent. It is unlikely that the Department would accept that the child is an Australian citizen.

Example:

Bruce and Matt are a gay couple who have undertaken surrogacy with the Ripsnorter Surrogacy Agency in Bangkok. Bruce is an Australian citizen. Matt is not. Each supply a sample of sperm at the request of the agency, for testing purposes. It is determined that Bruce has the best quality sperm. He is to be the father. The child is conceived and born. Bruce is named on the Thai birth certificate as dad. The application for Australian citizenship is made with Bruce as the father. At the request of the Department the DNA test is undertaken. This demonstrates that Bruce is not the father. Subsequent tests determine that Matt is the father. Under the approach taken by the Department, it is unlikely that the Department would accept the child as being an Australian citizen. Under the test in H v Minister for Immigration and Citizenship, Bruce would be considered to be the parent of the child.

It is of great surprise to intended parents to be told that although in the overseas jurisdiction they were recognised as parents, for example on the birth certificate, surrogacy contract or in the court order, that they might be recognised under the Australian Citizenship Act as parents, that the overseas birth certificate is disregarded for these purposes (such as seen in Ellison and Karnchanit), and that for parenting presumptions under State and Territory laws (with now the possible exception of Western Australia given the decision in Re Blake) they are not parents.

They wonder, quite rightly, how they could be parents for some purposes of Australian law, and not others.

Not being a “parent” generally makes little practical difference by the time intended parents seek advice, as:

o The child is probably already an Australian citizen;

o The child as a citizen is entitled to a Medicare card, and with the birth certificate Centrelink benefits can be claimed, and the child can be enrolled at school;

o Arriving at accident and emergency at 2am with the child in tow, the parents are not going to be asked about the legality of parenthood. More likely they will be asked to fill out a form, and for Medicare and health insurance details.

The differences come later on:

• If the intended parents separate, there may then be argument about whether or not they were a “couple”. If the court forms the view that they were not, then that may prevent the non-biological parent having a relationship with the child.

• The theoretical difference that they are not viewed as “parents” in the eyes of the State, at least for some purposes.

• Sooner or later it might be argued that child support is not payable .

• That the child may be accidentally disinherited, due to a lack of a (or poorly drawn) will of the parent.

Two recent decisions have thrown the matter into stark relief

Case 1: Mason and Mason

The significance of Mason & Mason [2013][10]is that Ryan J changed her mind from her previous decision in Ellison & Karnchanit [2012] to a position where she believed that State legislation concerning parenting presumptions was the legislation that concerned who was a parent, determining that the applicant was not a “parent”.

Her Honour noted that the Commonwealth Parliament sought to adopt the same scheme that operates in the States and Territories:

“namely a scheme for the declaration of parentage and, for children born or a surrogacy arrangement, the transfer of parentage in accordance with an order made by the Supreme Court of NSW.”

Her Honour did not deal with the approach taken by Justice Crisford in Blake & Anor [2013] FCWA 1 where her Honour dealt with the “reality” and looked at in effect the intention of the parties as to who was to be the parent.

If Justice Ryan had adopted the approach taken by Justice Crisford then in my view she would have found that the applicant was a “parent”.

Of concern are the facts contained in paragraph 4 of the judgment:

“The contract provided that the total compensation Rs 2,25,000 (Rupees two Lakhs twenty five thousand) for a vaginal birth or Rs 2,60,000 (Rupees two Lakhs sixty thousand) if the mother had a caesarean delivery. It is not necessary to summarise the entire agreement but it should not pass without comment that the provisions which limit the birth mother’s ability to manage her health during the pregnancy and make decisions about delivery of her babies, are troubling. It is also troubling that this 29 page document is written in English. It is signed by the applicant and, because she is illiterate in English and Hindi, the mother’s attestation is her thumb print. There is nothing in the document which suggests that before the birth mother signed it that it was read and translated to her.”

I also note paragraphs 67 to 69 of her Honour’s judgment:

67. “As to the children being born from a surrogacy arrangement by mothers they are unlikely to know, the family consultant said that at some point in the children’s lives, they may have “an intense, emotional identity crisis about this aspect of their lives”. She went on to say:

31. … Borrowed from the discourse about adoption, the twins may potentially face a more complicated task of making sense of their place in the world because they have grown up in a family whose parents faces do not look like theirs and without experiencing their “mother”, and her culture. There may be times in [the children’s] lives when they will be pre-occupied with this task. They may seek contact with their mothers at significant life cycle transitions. It is also possible that it may never be an issue for the twins.

32. The adoption discourse suggests that, of those who make enquiries about their adoption and have difficulties when adjusting to the news, these emotional difficulties are often a result of pre-existing psychological vulnerabilities and where there were already troubled family dynamics within the adoptive family. [The applicant] and [the respondent’s] declaration at this point of openness may be a protective factor for the twins alongside the development of secure and healthy parent-child relationships. In addition to this, the parents have actively sought out other families in similar positions, and if these friendship groups can be continued, there may be some benefit to the twins in connecting to other children in the same position.

33. Another argument proffered in the discourse on parentage is that a child’s genetic identity forms part of a child’s history. There may be medical advantages in the children knowing their parentage. The donor mother and [the birth mother] and their families will, apparently, be unlikely and/or unable to seek out [the children]. There may be significant class issues separating the families which may well be apparent to the children as they explore their Indian backgrounds further. The twins may realize that their mothers and any half siblings experienced life very differently to them. Again, this is an issue that the parents can assist the children to understand and deal with. (family consultant’s report dated 6 June 2012)

68. As to the ultimate issue, the family consultant strongly recommended that the applicant and respondent be awarded equal shared parental responsibility and that the children reside with them. She was as certain and comfortable as one can be about predicting the future that the children “will thrive” in the care of the applicant and respondent. In short, she gave a glowing report about them which brims with optimism for their and the children’s future together.

69. Her opinion accords with my own assessment. I am strongly satisfied that the applicant and respondent are astute to the challenges that lie ahead and as well-equipped as anybody could be to meet them.”

Case 2: Groth & Banks [2013][11]

In the third development this year as to who is a “parent”Cronin J determined as a matter of statutory drafting that the Family Law Act envisages that there are two biological parents of a child and that unless there is a displacement under the Family Law Act a sperm donor can be a parent. His Honour determined that a known sperm donor to a single woman was a parent; section 60H of the Family Law Actnot applying.

His Honour was of the view that the provisions of the Family Law Act overrode the relevant Victorian legislation that declared that the sperm donor was not a parent. Therefore his Honour did not consider the consent form signed by the sperm donor in which he acknowledged that he was only a donor and not a parent.

This decision has sent a shockwave through IVF clinics as it clearly states that known donors in certain circumstances are no longer donors but are parents and that as a result may have rights and responsibilities under the Family Law Act, have a liability to pay child support and their child may have a right of inheritance.

His Honour stated at paragraphs 10 to 16:

“In Re Mark: An Application Relating to Parental Responsibilities [2003] FamCA 822; (2003) 179 FLR 248; (2003) 31 Fam LR 162; (2003) FLC 93-173, Brown J considered the differing positions of a sperm donor who was unknown or anonymous, and a donor who had entered the process with the intention of fathering a particular child. Her Honour held that a person in the latter position was rightly considered a “parent” for the purposes of the Act. If this were not the case, there would be no need for legislation such as the Status of Children Act 1974 (Vic) to remove the rights and responsibilities that might otherwise attach to anonymous or unknown donors.

Brown J reproduced the Oxford English Dictionary definition of a parent, being “a person who has begotten or borne a child”, which was also relied upon in Tobin. In Re Mark, the man had donated his genetic material with the express intention of fathering a child he would parent. Moreover, her Honour found at [59],[t]he fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of [the child].

The applicant here submits that the same course should be taken in this case. His argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life. Concerns of public policy, such as those raised by Guest J in Re: Patrick (An Application Concerning Contact) [2002] FamCA 193 at [298] that unknown sperm donors could be considered “parents” under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.

Thus, the interpretation of “parent” in the Act allows each case to be determined on its particular facts.

The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law. I return to those exclusions below.

Part VII of the Act contains multiple references to the parents of the child as “either” or “both”. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.

The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes.”

Going back to my earlier analysis, there are three ways of saying who is a parent:

• By genetics;

• By birth; or

• By intention.

The approach taken by his Honour was by genetics, but also one might think intention. The basis on which the applicant was determined to be a parent relied on genetics. Nevertheless his Honour distinguished between known and anonymous donors. It is my view that if a genetics based approach were to be taken then the intention of the donor is irrelevant. Following the analysis to conclusion, anonymous donors to single women would be considered to be parents because each man is the “biological progenitor” of the child.

What this case illustrates as does Blake and Mason & Mason is that consideration should be given in determining who is a parent under a surrogacy ART arrangement the test ought to be intention of the parties involved.

The impact of this case from an international point of view is that there might be a benefit in a surrogate for Australian intended parents being single. Each case will however depend on its own facts.

Rule 10: There is insurance and there is insurance

Travel agents are insistent that when Australians travel to one country in the world they must have travel insurance. That one country is the one with the world’s most expensive health system- the US of course.

Insurance is one of those tricky things that need to be covered for those undertaking surrogacy. Something might go wrong. South Australia, as I set out above, in effect makes it a criminal offence to provide life insurance for the surrogate. Victoria is unclear and at face value appears to do likewise, but the regulator has stepped in and said that it is entirely appropriate to provide for life, disability and health insurance for the surrogate.

Australia has a mixed form of medicine. Part of our system is met by the taxpayer, via Medicare (for all Australians) and part of it is met privately, through health insurance.

When a child is born in Australia through surrogacy, the child is an Australian citizen and entitled to Medicare from birth. If the surrogate is not an Australian citizen giving birth in Australia, the child may not then be entitled to Medicare, but once the parentage order is made in favour of an Australian citizen or citizens, then by combination of the relevant State Surrogacy Act, the Federal Family Law Act, and the Australian Citizenship Act, the child then becomes an Australian citizen and is entitled to Medicare.

Australians living outside Australia may or may not be entitled to Medicare in Australia, depending on how long they have lived overseas. As with all insurance matters, this is a matter that ought to be planned for before the surrogacy arrangement is entered into, not afterwards.

Disability and life insurances are provided privately.

The number one stumbling block for Australians undertaking surrogacy in the US is that of cost. The single biggest factor in that cost is health insurance and medical cost.

Rule 11: A lawyer in one place may be useless somewhere else.

In July 2010 after 20 odd hours of travel I arrived in Memphis from Brisbane. Within a few hours of getting out of the plane, I was walking down Beale Street. I am a keen photographer. I was approached by a teenage girl wearing what appeared to be two tea towels which I then recognised were skimpy items of clothing. She asked if I were the official photographer for Beale Street. I said that I was a tourist from Australia. To my complete bemusement, she insisted that I take her photograph and those of her friends.

After the photos were taken, this girl asked me what I did for a living. I said that I was a lawyer. She then said “Can you help me? I’m in trouble with the county? I might go to jail.”I protested that I was from Australia and that I was not a local lawyer. Her friend said: “No Lurline he ain’t a local. You need a local lawyer.”

What Lurline’s friend understood but many intended parents don’t understand and indeed some lawyers undertaking surrogacy work clearly don’t understand is that the law is different in different places. Therefore if there is a matter which touches different jurisdictions then advice should be obtained from lawyers in that jurisdiction.

Example of what not to do

Fred and Wilma live in New South Wales. Barney and Betty live in Vermont. Betty is to be Fred and Wilma’s surrogate. Betty is Wilma’s sister. Because Fred and Wilma live in New South Wales the surrogacy arrangement will necessarily be a New South Wales surrogacy arrangement. The intention is for Betty to give birth in New South Wales.

Fred and Wilma saw a relative who is a lawyer for the purposes of legal advice. She had not undertaken surrogacy work previously. They then drafted a surrogacy arrangement which they had coddled together from the internet. It was awful drafting. My instructions were terminated after I insisted that the surrogacy arrangement be redrafted and that Barney and Betty get advice from lawyers who are familiar with the law in Vermont and New Hampshire (as they wanted to give birth if necessary in New Hampshire out of the two) in case for medical reasons Betty couldn’t travel and would have to give birth in the United States. I wanted to make sure that the surrogacy arrangement could comply with the law in those jurisdictions. Perversely, if the child were born in New South Wales then a parentage order could be obtained in New South Wales and Fred and Wilma would be shown ultimately as the parents of the child. If the child were born in Vermont or New Hampshire assuming it was possible to engage in surrogacy and that a custody order could be obtained then as a matter of then Fred and Wilma would be the parents for the purposes of Australian citizenship and would be parents in that US jurisdiction but it is questionable as to whether they would be parents for other purposes under Australian law. Same DNA. Same parties. Different jurisdictions. Different outcome.

Rule 12: Lawyers and other professionals should work as a team.

Rule 2 stated that what is legal there may result in jail here. It is essential so far as possible that lawyers are able to work as a team so that, as far as possible the clients are able to have a seamless approach. If there is a network with a surrogacy agency and with doctors and other associated professionals, all the better.

I say “so far as is possible” because for my clients undertaking commercial surrogacy overseas who ordinarily reside in Queensland, New South Wales, the ACT or are domiciled in New South Wales, I can’t encourage them or facilitate them to commit the act of commercial surrogacy. The relevant jargon in Queensland is aid, abet, counsel, procure or conspire with and the relevant jargon in New South Wales is to induce or conspire with. As an officer of the court I’m obliged to remind my clients that what they are proposing to do is illegal and that I must to everything as a lawyer to discourage them from doing so.

My number one gripe with international surrogacy matters is being kept out of the loop. The number one complaint I have received from clients about international matters is that the process is not seamless- that different people do different things for different parts of the journey, but no one follows them through all the way, to make sure that each part goes smoothly. By far the easiest way to ensure that the process is as seamless as possible is to be included in communications. Just because I’m a lawyer in another jurisdiction doesn’t mean I’m an idiot or a yokel. The easiest way to include me in communications is to cc any email to me and to have systems in place in your office to ensure that occurs. I will extend the same courtesy.

The cost to a client of the lawyers doing so is minimal but the benefit is that the client hopefully will not fall between the cracks; issues will be identified and dealt with quickly and efficiently, and that above all the client will feel that they are being looked after (which they are) and that they are not a number (they are not).

The essence as to how I undertake business is that subject to my professional duties, particularly the duty to my client, I believe that the essence in doing business is having long-term trusting relationships with others. This means we can refer work to and from each other and also mean that we can trust each other to get the result right.

Several years ago, I heard Dr Kim Bergman from Growing Generations speak of the mantra which is required for a successful surrogacy arrangement. I would say that it’s the essence also of a relationship between lawyers and others involved in a successful surrogacy arrangement:

1. Mutual respect

2. Communication

3. Flexibility.

Stephen Page

Harrington Family Lawyers

13 September, 2013

www.harringtonfamilylawyers.com

Phone: +61 7 3221 9544

Fax: +61 7 3221 9969

spage@harringtonfamilylawyers.com

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