Law Society of South Australia presentation: South Australian surrogacy
Wednesday, December 03, 2014
Last week, at the invitation of the Law Society of South Australia, I presented in Adelaide as to surrogacy law and practice there. I called my paper “Prevention is better than cure” as it is a lot easier to plan for contingencies than it is to fix a broken surrogacy arrangement.
Here is my paper:
Prevention is Better than Cure:
Surrogacy in South Australia
Stephen Page
Law Society of South Australia
26 November 2014
Introduction
Mr Rich Vaughn, who chairs the ART Committee of the American Bar Association, and is a very experienced surrogacy lawyer, once put it aptly:
“The practice of surrogacy involves a checklist. Provided everything in the checklist works, it goes according to plan. However, if one item in the checklist is out, then things can become very interesting.”
The number one role in practice in surrogacy is to know what you are doing. If you don’t know what you are doing – beware! Above all, do NOT believe something because it is on the internet. Always, always apply critical thinking. Always spend the time to research the topic so that you get the right answer first time.
With that, I give you the checklist…
Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is admitted in Queensland (1987), in the High Court (1989) and South Australia (2013). He has been an accredited family law specialist since 1996. Stephen is an international representative of the Artificial Reproductive Technologies Committee of the American Bar Association, and is a member of the International Surrogacy Forum, the International Academy of Matrimonial Lawyers and the American Academy of Assisted Reproductive Treatment Attorneys (AAARTA). Stephen chairs the Surrogacy Australia legal committee and is author of the Australian Surrogacy and Adoption Blog.
Checklist to Obtain an Order in the Youth Court
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No.
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Item
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Section
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1.
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An agreement.
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10HA(2)
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2.
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The relevant terms envisaged in subs (1) are set out in a written agreement.
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10HA(6)(a)
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3.
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Surrogate mother agrees to become pregnant or seek to become pregnant and surrender custody of and rights in relation to a child born as a result of the pregnancy to two other persons.
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10HA(2)(a)
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4.
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The surrogate mother’s husband or male de facto partner also is a signatory.
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10HA(2)(b)(i)(a) and
10A[reference to same sex relationships]
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5.
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The written agreement must be signed by each party.
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10HA(6)(b)
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6.
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All parties to the agreement are at least 18 years old.
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10HA(2)(b)(ii)
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7.
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The commissioning parents are married / or in a heterosexual relationship for 3 or 3 of last 4 years at the time of signing.
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10HA(2)(b)(iii)
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8.
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At the date of signing, the commissioning parents are domiciled in South Australia.
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10HA(a)(b)(iv)
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9.
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The female commissioning parent is or appears to be infertile.
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10HA(2)(b)(iv)(A)
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9A.
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Alternate: She is, or appears to be, unable on medical grounds to carry a pregnancy or to give birth.
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10HA(2)(b)(v)(B)
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9B
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Alternate: There appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to the female commissioning parent.
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10HA(2)(b)(v)(C)
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10.
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The signature of each party must be attested by a lawyer’s certificate, which certificate is endorsed on the agreement.
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10HA(6)(c),
10HA(1)
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11.
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The certificate with respect of the surrogate mother (and if relevant her husband or male de facto partner) must be given by a lawyer who is independent of a lawyer who gives a certificate with respect to either or both of the commissioning parents.
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10HA(6)(c)
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12.
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The lawyer must be admitted as a Barrister and a Solicitor of the Supreme Court of South Australia and hold a current practicing certificate whether in South Australia or elsewhere.
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10HA(1)
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13.
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The lawyer’s certificate is endorsed on the agreement and signed by the lawyer.
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10HA(1)
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14.
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The lawyer’s certificate certifies that (a) the lawyer explained the legal implications of the agreement to a party to the agreement named in the certificate and (b) the party signed the agreement in the lawyer’s presence.
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10HA(1)
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15.
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The agreement must comply with any other requirement prescribed by the regulations – there is no other requirement as the Regulations are silent.
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10HA(7)
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16.
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There must be a certificate from a medical practitioner.
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10HA(5)(a)
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17.
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The certificate must relate to the commissioning parents.
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10HA(5)(b)
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18.
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The certificate must state that in the opinion of the medical practitioner both prospective commissioning parents appear to be infertile or there is a medical reason why it would be preferable not to use human reproductive material provided by the prospective commissioning parents to create an embryo for the purposes of achieving a pregnancy.
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10HA(5)(c)
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19.
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There has been assessment and counselling of the surrogate by an accredited counselling service in accordance with NHMRC guidelines and any requirements under the Regulations.
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10HA(2)(b)(vi)
(a)-(c)
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20.
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The assessment and approval counselling has been undertaken by an officer in the employ of the counselling service where one or more officers meet the eligibility criteria for full membership of ANZICA.
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Reg 4 (2)(a), 4(1)(a)
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21
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If the service is accredited under Regulation 4(1)(b) – in accordance with any condition of the written accreditation.
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Reg 4(2)(b), 4(1)(b)
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22.
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There has been independent implications counselling of the surrogate mother and both commissioning parents.
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10HA(2)(b)(vii)
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23.
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There is a certificate from the counsellor that the person to whom it relates has received counselling individually and that the person is married (or in a heterosexual de facto relationship) or is one of the commissioning parents – as a couple, about personal and psychological issues that may arise in connection with the surrogacy arrangement.
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10HA(3)(b)
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24.
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The certificate has been issued by a counselling service that is accredited for the purposes of the sub-section in accordance with the regulations.
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10HA(3)(a)
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25.
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One or more officers or employees meet eligibility criteria for full membership of ANZICA.
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Reg 4(3)(a)
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26.
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The service is accredited in writing by the for the purposes of section 10HA(3) (whether conditionally or unconditionally).
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Reg 4(3)(b)
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27.
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The counselling must be provided by an officer in the employ of the counselling service where one or more of the officers or employees meets the eligibility criteria for full membership of ANZICA.
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Reg 4(4)(a), 4(1)(a)
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28.
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The service is accredited by the Attorney-General – in accordance with any condition of the written accreditation.
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Reg 4(4)(b), 4(1)(b)
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29.
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The certificate must state that in the opinion of the counsellor who undertook the counselling the proposed recognised surrogacy agreement would not jeopardise the welfare of any child born as a result of the pregnancy that forms the subject of the agreement.
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10HA(3)(b)(ii)
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30.
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The agreement must state on its face that the parties intend that the pregnancy is to be achieved by the use of fertilisation procedure carried out in SA.
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10HA(2)(viii)(A)
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31.
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The agreement must state on its face that the parties intend that at least one of the commissioning parents will provide human reproductive material with respect to creating an embryo for the purposes of a pregnancy, unless the commissioning parents have a certificate issued under section 10HA(5).
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10HA(2)(b)(viii)(B)
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32.
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The agreement states on its face that no valuable consideration is payable under, or in respect of, the agreement, other than for expenses connected with –
(a) a pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or
(b) the birth or care of a child born as a result of that pregnancy; or
(c) counselling or medical services provided in connection with the agreement (including after the birth of a child); or
(d) legal services provided in connection with the agreement (including the birth of a child).
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10HA(2)(ix)
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33.
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The agreement states that the parties intend that the commissioning parents will apply for an order under section 10HB of the Act after the child is born.
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10HA(2)(x)
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34.
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The child was born under the terms of the recognised surrogacy agreement.
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10HB(2)(a)
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35.
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At the time of hearing the application the commissioning parents are domiciled in South Australia.
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10HB(2)(b)
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36.
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The child was conceived as result of a fertilisation procedure carried out in SA.
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10HB(2)(c), 10A
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37.
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The application has been made by either or both the commissioning parents.
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10HB(4)
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38.
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If the application is made by only one commissioning parent either the other parent consents or they cannot be contacted.
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10HB(9)(b)
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39.
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The application has been made when the child is between the ages of 4 weeks and 6months.
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10HB(5)
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40.
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The welfare of the child must be regarded as the paramount consideration.
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10HB(6)
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41.
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The court needs to be satisfied as to the validity of the relevant agreement as a recognised surrogacy agreement.
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10HB(7)
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42.
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An order can only be made if the court is satisfied that the surrogate mother freely, and with the full understanding of what is involved, agrees to the making of the order.
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10HB(7)
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43.
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The surrogate mother’s consent may be dispensed with if she is dead, incapacitated or cannot be contacted after making reasonable enquiries.
There is no other circumstances prescribed by the Regulations cf:s.10HB(8)(c).
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10HB(8)
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44.
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At the time of filing the application the child’s home is with both commissioning parents.
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10HA(9)(a)
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45..
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That valuable consideration (other than for allowable expenses) has not been paid.
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10HB(9)(c)
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46.
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That the birth father freely, and with full understanding of what is involved, agrees to the making of an order in favour of the commissioning parents – or there is some other special circumstances in relation to the matter concerning the birth father. There is no strict requirement for the birth father’s consent. His submissions to the court must be taken into account.
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10HA(9)(d)
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47.
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The commissioning parents are fit and proper persons to assume the role of parents.
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10HB(10)
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48.
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Any other relevant circumstances.
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10HA(11)
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49.
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Whether there ought to be an assessment from a counselling service (obtained at the expense of the commissioning parents).
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10HA(12)
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50.
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The application must be in relation to all children if twins or multiples.
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10HB(17)
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13 Myths About Surrogacy
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1.
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It is a requirement that there must be a written surrogacy arrangement.
Reality
The surrogacy arrangement does not need to be written. However without a written surrogacy agreement an order under the Family Relationships Act will not be made and it will not be possible for the intended parents to be recognised as the parents of the child in South Australia. IVF clinics may be reluctant to help without a recognised surrogacy agreement.
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2.
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No payments can be made to the surrogate.
Reality
Payments can be made to the surrogate for expenses as allowed under the Family Relationships Act. A fee cannot be paid to the surrogate. To do so is a criminal offence.
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3.
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Fertility treatment can’t be undertaken interstate or overseas.
Reality
Fertility treatment can be undertaken interstate or overseas but an order under the Family Relationships Act cannot be made. The definition of fertility treatment is very wide.
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4.
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It is illegal for residents of South Australia to undertake commercial surrogacy overseas.
Reality
It is legal for them to do so.
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5.
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It is legal for residents of South Australia to undertake egg donor contracts overseas.
Reality
It may be a criminal offence in South Australia punishable by up to 15 years imprisonment.
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6.
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It is illegal to undertake traditional surrogacy in South Australia i.e. where the surrogate is also using her eggs as the mother of the child.
Reality
Traditional surrogacy may be pursued in South Australia. However, getting an IVF clinic to assist is another matter. A certificate under section 10HA(5)(c) from a medical practitioner is also required.
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7.
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It is a breach of anti-discrimination laws for an IVF clinic to refuse to provide treatment for traditional surrogacy.
Reality
It is not a breach of anti-discrimination laws, but given the perceived risk of traditional surrogacy i.e. that the surrogate will hang onto the child[1] but as a matter of caution, many clinics refuse to undertake traditional surrogacy.
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8.
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It is against anti-discrimination laws for a clinic to refuse to treat when an intended parent has HIV or similar sexually transmitted infections.
Reality
It is not a breach of anti-discrimination laws but consistent with health protocols of the particular IVF clinics.
To the writer’s knowledge currently there is only one clinic in Australia which treats those with HIV, through an infectious disease specialist in Melbourne. Most people undertake surrogacy overseas as a result. In the United States it is estimated[2] that only 3% of IVF clinics will assist in cases where an intended parent has HIV.
In either case because treatment is likely to occur outside South Australia, an order under the Family Relationships Act may not be possible.
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9.
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Women in South Australia can’t be surrogates for intended parents interstate, or overseas.
Reality
They can be and have been. Provided that there is not an offence committed under the Family Relationships Act, or other legislation and provided that there is compliance with the interstate law, the parentage order will be made interstate. The general scheme under Australian law is based where the intended parents reside.
If overseas surrogacy is considered, thought must be had to the Hague Intercountry Adoption Convention.
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10.
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Gay and lesbian couples and single people cannot pursue surrogacy in South Australia.
Reality
They can, but not through an IVF clinic and they will not be able to obtain an order under the Family Relationships Act. They may need to pursue surrogacy overseas.
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11.
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In the Northern Territory, anything goes.
Reality
There are no surrogacy laws in the Northern Territory. Often it will be easier for Northern Territory residents to go interstate, or more likely overseas for surrogacy as there will be no IVF assistance in the Northern Territory.
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12.
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Any Australian lawyer can sign off on a South Australian recognised surrogacy agreement.
Reality
Only lawyers admitted in South Australia, who have a current practicing certificate, can sign off on and certify a South Australian recognised surrogacy agreement.
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13.
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Once an order has been obtained, it is quick and easy to register that order with the Registrar of Births, Deaths and Marriages interstate.
Reality
Each State is different. Queensland is easy. New South Wales is slow. Victoria is difficult. Northern Territory is impossible. Check this issue before the surrogacy agreement is entered into.
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I want to thank first the Law Society of South Australia for inviting me to address you about surrogacy.
I have had the privilege of advising clients concerning surrogacy in all 8 States and Territories, and 16 countries overseas. Clients of mine have pursued domestic surrogacy arrangements in Queensland, NSW, ACT, Victoria and South Australia.
My first surrogacy client was in 1988, at a time when all forms of surrogacy were illegal in Queensland. My client sought and obtained advice from me that she could keep the $10,000 she had been paid by the intended parents and also get to keep the baby. She was the genetic mother. It was a traditional surrogacy.
I have had the fortune (or misfortune) to see what happens when surrogacy arrangements go wrong, and to learn not only how to fix them up, but more importantly how to avoid trouble. After all, prevention is better than cure.
The process of surrogacy in South Australia allows for the regulation of altruistic surrogacy arrangements (called recognised surrogacy agreements) and the prohibition of commercial surrogacy arrangements. The basic scheme contained in the Family Relationships Act 1975 (SA) is to ensure that commissioning parents, the surrogate and her partner obtain medical clearance, independent legal advice and counselling before a written recognised surrogacy agreement is entered into, at which stage the parties can proceed.
However, provided an offence is not committed, it is possible to pursue surrogacy in South Australia which does not fall within the obvious confines of sections 10HA and 10HB of the Family Relationships Act.
Current estimates are that 5 or 6 surrogacy arrangements have proceeded to orders in South Australia. It is highly likely that many times that number of couples have undertaken surrogacy overseas. I am aware of two cases where a South Australian woman has been a surrogate for intended parents interstate, and one where a South Australian woman is a surrogate for a couple overseas.
Overview of Surrogacy Laws in Australia
Some years ago Senator Stephen Conroy and his partner, residents of Victoria, were unable to undertake surrogacy in Victoria and travelled to New South Wales to participate in surrogacy there. After the story was broken by the Sydney Morning Herald, the then Commonwealth Attorney-General, Phillip Ruddock challenged the States to legalise and regulate surrogacy. The A.C.T. alone then had a scheme in place regulating surrogacy. Between 2008 and 2013, all the States passed laws allowing for altruistic surrogacy and banning commercial surrogacy. South Australia’s laws were enacted, amending the Family Relationships Act and the Births, Deaths and Marriages Registration Act 1996, taking effect on 26 November 2010.
Family Relationships Act 1975(SA)
Each of the States has slightly different regimes concerning the regulation of surrogacy. The model in South Australia is broadly similar to that in Queensland, New South Wales, ACT and Tasmania and different to that in Victoria and Western Australia. However the model in South Australia has an element which is similar to that in Western Australia and Victoria. Essentially the model that exists in Queensland, New South Wales and Tasmania requires:
· a written surrogacy arrangement;
· mandatory medical clearance (for a female intended parent), counselling and independent legal advice for the parties before that arrangement is entered into;
· a mandatory report by an independent expert after the child is born and handed over, called in Queensland, a “surrogacy guidance report” and in New South Wales, an “independent assessment report”. (Tasmania has the option available for such a report. It is not mandatory).
· in New South Wales alone, further post-birth counselling of the surrogate and her partner occurs;
· after that has all happened an application is filed to the Court at which stage the Court is asked to make a parentage order in favour of the intended parents so they will have custody and guardianship of the child and subsequently they will be named on the birth certificate in lieu of the surrogate and her partner as the parents of the child.
Once the order is made, and before any delays that may occur in the making of the alteration of the birth register, the intended parents at that point, become the parents of the child for all purposes under Australian law by virtue of section 60HB of the Family Law Act 1975 (Cth) and of the Family Law Regulations 1984 (Cth), Reg 12CAA (the prescribed law in SA being section 10HB of the Family Relationships Act 1975 (SA).
Surrogacy in the ACT, Victoria and Western Australia does not necessarily require a written surrogacy arrangement, but to proceed without a written surrogacy arrangement would be very foolish.
The ACT model in other significant respects is the same as the model in New South Wales, Queensland and Tasmania.
In Victoria and Western Australia, in addition to obtaining independent legal advice and counselling before entering into the surrogacy arrangement, approval must be obtained from the State regulator. This is the Patient Review Panel in Victoria and the Reproductive Technology Council in Western Australia. In Victoria there is also a requirement for child protection and criminal checks that have to be cleared first. It is assumed under the model in Victoria and Western Australia that once these thorough checks have been undertaken, including by the State regulator, there isn’t a requirement for a checking mechanism after the birth of the child to assure the Court that the best interests of the child have been met. In my view that approach is a mistake and that a better approach is to have that checking mechanism by way of a surrogacy guidance report or independent assessment report following the birth. Practice has shown that these reports, akin to family reports, are valuable tools in assuring the court that proper arrangements have been put in place for the best interests of the baby.
In South Australia, similar to Tasmania, with the exception when the court orders such a report, there isn’t a mandatory requirement for such a report to be obtained. Likewise, the legislature has assumed that provided that the legal advice and the counselling has been obtained that sufficient checks have been undertaken prior to the entering into the surrogacy arrangement so that a report post birth is not required.
Northern Territory
Never, ever allow a child under a South Australian agreement to be born in the Northern Territory. If you have a surrogate living in the NT who says that she will give birth in South Australia, do not assume that that will happen. A complicated pregnancy might mean that the surrogate is stuck at home- and you are looking at a potential professional indemnity claim!
The Northern Territory has no rules concerning surrogacy. It might therefore be assumed that anything goes in the Northern Territory. In reality those living in the Northern Territory in practice have to go interstate or overseas. Because of the State based regulation of surrogacy, often it may be easier for them to go overseas than interstate as they are not resident interstate. Whilst residents of the Northern Territory can pay a surrogate by way of commercial surrogacy and can advertise for a surrogate without restriction, they cannot access IVF services. This is because:
· there is only one IVF clinic in the Northern Territory, Repromed. Repromed has made the decision that because parentage orders cannot be made in the Northern Territory and therefore the ability to transfer parentage to the intended parents, there is no point in providing surrogacy services;
· it is a licencing requirement for all IVF clinics in Australia, including Repromed in the Northern Territory, not to undertake or to facilitate commercial surrogacy[3]
Whilst there is nothing to preclude an IVF service to assist a Northern Territory couple to undertake surrogacy in South Australia, provided that there is not a surrogacy contract or a procuration contract, why someone would want to do so is a moot point – because an transferring parentage cannot be made and a clinic may decide not to act because of section 4A of the Assisted Reproductive Treatment Act (welfare of the child is the paramount concern).
Gay and Lesbian or Single Commissioning Parent/s
Can I say at this point I prefer the phrase “intended parents”, which is internationally recognised, to “commissioning parents”.
There is nothing to prevent gay or lesbian couples, or single intended parents from proceeding with surrogacy in South Australia – provided that:
1. They do not enter into a surrogacy contract;
2. They do not enter into a procuration contract;
3. A parentage order cannot be made.
In addition to not being able to obtain an order, the reason that gay, lesbian and single intended parents cannot obtain assistance from an IVF clinic to help them become parents through surrogacy is because of the mandatory licensing requirements of IVF doctors contained in s.9 of the Assisted Reproductive Treatment Act 1988 (SA):
“(1) The Minister must, by notice in writing given to a person registered under this Part, impose conditions of the following kinds on the person’s registration:
(a) a condition requiring the person to hold, while the person is registered under this Part, a specified licence, accreditation or other qualification that is in force;
(b) a condition setting out the kinds of assisted reproductive treatment the person may provide and any requirements that must be complied with in the provision of such treatment;
(c) a condition preventing the provision of assisted reproductive treatment except in the following circumstances:
(i) if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
(ii) if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
(iii) if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;
(iv) if—
(A) the donor of the relevant human semen has died; and
(B) before the donor died—
• the donor’s semen was collected; or
• a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor’s semen; or
• an embryo had been created as a consequence of such assisted reproductive treatment; and
(C) before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and
(D) if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and
(E) the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis;
(iva) for the purposes of a recognised surrogacy agreement;
(v) in any other circumstances prescribed by the regulations;
(d) a condition requiring the person to ensure that the regulations are complied with;
(e) any other condition required by the regulations,
and may impose any other condition the Minister thinks fit.
(2) The Minister may, by notice in writing given to a person registered under this Part, vary the conditions of the person’s registration by the addition, substitution or deletion of 1 or more conditions.
(3) A person who is registered under this Part and who contravenes or fails to comply with a condition of the person’s registration is guilty of an offence.
Maximum penalty: $120 000.” (emphasis added)
Section 9(1)(c)(i) would not apply to single women seeking surrogacy- because at the time of the child’s birth they would not be the mother.
Regulation 8 of the Assisted Reproductive Treatment Regulations 2010 (SA) provides further, mandatory conditions of registration:
“(1) For the purposes of section 9(1)(c)(v) of the Act, assisted reproductive treatment may be provided in circumstances where—
(a) a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment; or
(b) a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment, is suffering from an illness or other medical condition that may result in, or the appropriate treatment of which may result in, the woman or man becoming infertile at a future time.
(2) For the purposes of section 9(1)(e) of the Act, the Minister must impose the following conditions on the registration of a person:
(a) a condition requiring the person to comply with the NHMRC guidelines;
(b) a condition requiring the person to provide specified information to the Minister from time to time in a manner and form determined by the Minister.
(3) In the event of an inconsistency between a provision of the NHMRC guidelines and a condition imposed on the registration of a person (whether under the Act or otherwise), the provision of the NHMRC guidelines is, to the extent of the inconsistency, void and of no effect.
(4) For the purposes of section 18 of the Act—
(a) a condition imposed on the registration of a person (whether under the Act or otherwise); or
(b) a provision of the NHMRC guidelines,
that requires or authorises a person—
(c) to disclose the identity of a donor of human reproductive material; or
(d) to divulge confidential information obtained (whether by that person or some other person) for the purpose, or in the course, of providing assisted reproductive treatment,
will be taken to be a requirement or authorisation under the Act.”
The National Health and Medical Research Council Guidelines referred to have little to say about surrogacy, other than the clinic must not engage in or facilitate commercial surrogacy.
South Australia is the most discriminatory of all the States in this regard and this discrimination ought to end. It is possible that the refusal by a doctor to treat, based on the Family Relationships Act (and the Assisted Reproductive Treatment Act 1988 (SA), including s.4A of that Act) could amount to a breach of Commonwealth anti-discrimination legislation[4]. Queensland, New South Wales and Victoria have no discrimination. In the ACT there is a discrimination, and that is, that intended parents must be a couple and the surrogate must be part of a couple. A single surrogate is not sufficient. In South Australia there can be a single surrogate, but curiously it is questionable if the surrogate could be in a lesbian relationship.
In Tasmania ordinarily everyone must reside in Tasmania unless the judge rules otherwise so that it is in the best interests of the child. Significantly by the time the judge makes that ruling the parties have already undertaken the legal advice, the counselling, signed the surrogacy arrangement, the child has been conceived and born – and the parties are still uncertain as to whether or not the Court would make an order because of the exceptional nature of the matter.
In Western Australia the restrictions are almost as strict as those in South Australia:
• heterosexual married couple;
• heterosexual de facto couple;
• lesbian couple;
• single woman.
In Western Australia a gay couple or a single man cannot be intended parents under the Surrogacy Act 2008 (WA).
The requirement under the Family Relationships Act is that the commissioning parents must either be:
(a) married; or
(b) heterosexual de facto couple living together for the last 3 years or 3 out of the last 4 years.
At this point I mention to look at the authorised version of the Act. When one looks at the version on Austlii, it is unclear if the requirement about 3 or 4 years applies to married couples as well as de facto couples. It is clear from the authorised version that it does not – one only needs to be married for a day but for a couple in a de facto relationship, then the 3 or 4 years requirement is needed.
Going Overseas
There is no limitation in South Australia in undertaking commercial surrogacy overseas[5]. While it would appear that Australians are the highest per capita users of international surrogacy arrangements, and over a thousand children have been born to Australian intended parents overseas through surrogacy[6], no-one has been prosecuted for undertaking commercial surrogacy overseas. In Queensland, New South Wales and the ACT it is an explicit offence to engage in commercial surrogacy overseas. In Western Australia, by implication, it is an offence to engage in commercial surrogacy overseas. In South Australia it is legal for intended parents to undertake commercial surrogacy overseas as it is in the Northern Territory, Victoria and Tasmania.
I might note that at this point that I have had clients from Queensland and New South Wales move so that they can be compliant with the laws, moving for example to Victoria, the Northern Territory or the United States.
In reality some intended parents[7]have little choice but to undertake commercial surrogacy overseas. It is either that or move interstate as they will be unable to undertake altruistic surrogacy interstate unless they also reside there.
Limitation 1 – The Residence Clause
It is a requirement that the commissioning parents must live in South Australia – both:
· at the time of entering into the recognised surrogacy agreement; and
· at the time of the Court hearing.
It is also arguable that they need to reside in South Australia at the time of filing the application. This is because of an expectation under the Family Relationships Act that the child was residing with them at all relevant times and the general scheme of the Act is that they must live in South Australia.
Therefore any expatriate commissioning parents or those residing interstate who wish to undertake surrogacy in South Australia cannot do so – unless they move to South Australia before entering into the surrogacy agreement. This is similar to the position in Victoria and Western Australia, for example, but contrasts with that in Queensland and New South Wales. In those States the intended parents need only reside in that State at the time of the hearing of the application. It is therefore possible for expatriate clients to enter into the surrogacy arrangement and then move to that State at or about the time of the child’s birth. A real difficulty occurs with fly in fly out workers. Where do they reside? If a person resides in effect in two States, which rules apply?
Limitation 2 – Fertility Treatment
Fertility treatment must happen in South Australia. The definition of fertility treatment is very wide. Every step must occur in South Australia in the creation of the embryo and its transference to the surrogate. If every step does not occur in South Australia, then an order will not be able to be made.
If you import, for example, an embryo into South Australia from Victoria, being the couple’s own embryo, because they have moved from Melbourne to Adelaide, not all the fertility treatment will have occurred in South Australia, and an order will not be able to be obtained.
Why all steps of fertility treatment must happen in SA to obtain an order
Here is the labyrinthine journey:
Step 1: s.10HB: what is required for an order
You can’t get an order under s.10HB unless the child was born under the terms of a recognised surrogacy agreement: s.10HB(2)(a). Although there is not a further definition of fertilisation procedure in s.10HB to that contained in s.10HA, clearly the two sections work together as a scheme. S.10HB(2)(c) provides that a further requirement is that:
“ (c) the child was conceived as a result of afertilisation procedure carried out in this State.”
There is no definition of conceived or conception in the legislation.
Step 2: s.10HA- definition of fertilisation procedure and what is required for a recognised surrogacy agreement
Section 10HA(1) provides, relevantly:
“ (1) In this section, unless the contrary intention appears—
“fertilisation procedure” has the same meaning as in Part 2A.”
Section 10HA(2)(b)(viii)(A) provides:
“(viii) the agreement states that the parties intend—
(A) that the pregnancy is to be achieved by the use of a fertilisation procedure carried out in this State;”
Step 3: s.10HA: definition of fertilisation procedure
The definition of fertilisation procedure for Part 2A is contained in s.10HA. Section 10HA provides, relevantly:
“(1) In this Part—
“fertilisation procedure” means—
(a) assisted insemination (within the meaning of the Assisted Reproductive Treatment Act 1988 ); or
(b) assisted reproductive treatment (within the meaning of the Assisted Reproductive Treatment Act 1988 ).”
Step 4: definitions in the ART Act
Section 3 of the Assisted Reproductive Treatment Act 1988(SA) provides, relevantly:
“In this Act, unless the contrary intention appears—
“assisted insemination” means assisted reproductive treatment (not being an in vitro fertilisation procedure or a surgical procedure) in which human sperm are introduced, by artificial means, into the human female reproductive system;
“assisted reproductive treatment” means any medical procedure directed at fertilisation of a human ovum by artificial means and includes an in vitro fertilisation procedure;
“in vitro fertilisation procedure” means any of the following procedures—
(a) the removal of a human ovum for the purpose of fertilisation within or outside the body;
(b) the storage of any such ovum prior to fertilisation;
(c) the fertilisation by artificial means of any such ovum within or outside the body;
(d) the culture or storage of a fertilised ovum outside the body;
(e) the transference of a fertilised or unfertilised ovum into the human body;”
In other words, the freezing of sperm is not a fertilisation procedure, but everything else is or may be:
· the removal of eggs, even for freezing, because the purpose is ultimately to fertilise them;
· artificial insemination
· IVF
Step 5: If through a clinic, the fertilisation procedure must be in accordance with the licence
I have set out above the restrictive licencing conditions under s.9 of the ART Act and reg. 8 of theART Regulations.
Step 6: Further restriction on when fertilisation procedures may be carried out
Section 4A of the ART Act requires that the welfare of any child to be born as a consequence of the provision of assisted reproductive treatment must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of that Act.
There is unhelpfully no definition of conceive or conception. There is only one case in the world on point. Whether it will be applied in South Australia is a moot point. Therefore if you have clients who wish to undertake surrogacy or fertility treatment anywhere else, they cannot then obtain an order under section 10HB of the Family Relationships Act. A situation as seen in Re H, AE(No.2)[2012] SASC 177 for example, where ultimately the sperm that was removed from the posthumous husband and used in a fertility procedure by Genea in the A.C.T. to enable the applicant to become a mother[8] , could not be replicated in reverse for surrogacy.
Similar rules are in place in Western Australia, Victoria, ACT and Tasmania. Significantly, these rules are not in place in Queensland or New South Wales. For example, it is possible in New South Wales or Queensland to have fertility treatment undertaken anywhere in the world. All that is required from an evidentiary point of view in those States is that the relevant doctor can be seen to be expert under Australian law and whose evidence is therefore admissible.
What is Conception?
As I said, there is no definition of conception. The legislative scheme seems to make a difference between fertilisation and conception. This is consistent with the common notion that fertilisation involves cell division, whereas conception is an event that occurs at or after pregnancy.
The only case on conception anywhere in the world is a Queensland case[9]. When the Surrogacy Act 2010 (Qld) was enacted it had a curious provision that said the surrogacy arrangement must be signed “before the child was conceived”.
Unhelpfully there was no definition of conception. Queensland did not have extra licensing requirements for doctors. Compliance with the licensing provided by the National Health and Medical Research Council and that scheme is sufficient there. Therefore there is no reference in legislation to fertilisation. If conception were at the time of cell division, and an embryo that had been frozen before the surrogacy arrangement was used (as is common practice), then a parentage order can never be made.
In 2012 Judge Clare SC found that conception was the act of pregnancy not fertilisation. It has been followed in unreported cases in Queensland and New South Wales. Her Honour stated:
“[6]The meaning of the term “conceived” as used in ss (2) (e) (iv) 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 ss (2) (iv) means before the creation of the embryo or simply any time before the transformation of the embryo into a pregnancy. If it were the earlier point in time, the court would have no power to make a parentage order for LCH.
What does “conceived” mean ?
[7]The act offers no definition. This appears to be the first time a court has been asked to interpret ss (2) (e) (iv). Nonetheless, the answer seems straightforward.
Whatever approach to statutory interpretation is applied, whether it is to view
“conceive” as a technical term, or in its everyday meaning, or the meaning that best
advances the purposes 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
[8] The phrase “conceived a child” is in common usage. It is commonly understood to refer to an actual pregnancy.
[9] One must examine the context of the provision.
This is a provision about surrogacy. As expressed in s 5, the purposes of the Act are 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 invitro 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 even 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”.
[10] 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.
[11] AKV’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 likely to confront any woman undergoing emergency procedures in the future, notwithstanding the commencement of the Act. A woman, although desirous of having a baby, would have 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.
[12] Therefore, to interpret the preconception condition as condition to be satisfied before fertilisation would not only be contrary to the ordinary language of the provision, 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
[13] The court has an affidavit from Dr Justin 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 fertilise 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 Lisa over the next couple of days with the eventual positive pregnancy test approximately two week after 7 July 2011… The act of conceiving in this case is viewed as the act of achieving a pregnancy. Therefore, I view the conception of LCH as occurring from the embryo transfer on 7 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.
Authorities outside of the jurisdiction
[14] Despite extensive research, the parties have found only one case in which the
Notion 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. It was about the legality of the morning after pill and therefore approached the issue of conception in the context of sexual intercourse rather than scientific intervention. The distinction is not a relevant one as regards the true meaning of conception. Professor James Owen Drife, Professor of Obstetrics and Gynaecology at the University of Leeds, and, a Vice -President of the Royal College of Obstetricians and Gynaecologists had testified in this way:
“In my view pregnancy begins when the pregnancy test is positive, some ten to fourteen days after conception. My reasons relate to the large numbers of fertilised oocytes which
are believed to be lost during the normal menstrual cycle. I do not believe these can
be described as “pregnancies”. When teaching students, I describe the processes of
spermatogenesis, ovulation and fertilisation as a continuum with implantation and early pregnancy development. I reserve the term “pregnancy” for the phase after implantation. When talking to patients, I would not use the term “pregnancy” until a pregnancy test was positive or a menstrual period had been missed.”
[15] The weight of evidence in that case led Munby J to conclude:
“Put very simply, there are two key stages in the biological process following sexual
intercourse:
i)The first is fertilisation. This takes place after the man’s sperm and the
woman’s egg have met… ii) The other key stage is implantation. This takes place after
the fertilised egg has moved into the womb. It involves a process by which the fertilised
egg physically attaches itself to the wall of the womb. The process does not start until,
at the earliest, some four days after the commencement of fertilisation. The process of
implantation itself takes some days.”
Limitation 3: Straight couples only
I have covered this issue above.
Lawyers
The Family Relationships Act, quite properly, in accordance with the scheme throughout Australia, requires each of the parties to obtain independent legal advice before the surrogacy arrangement is signed. Each of the lawyers must sign a certificate to that effect. The certificate needs to be strictly complied with (as do the certificates for the counsellors and doctor) or an order may not be able to be made. Simplicity is best. When drafting a certificate just follow the Act. Don’t re-invent the wheel or you will more likely fail your clients in having a parentage order made and, as a result, find yourselves on the wrong end of dealing with your professional indemnity insurer.
When you are reading a certificate provided to you by the other lawyer (or doctor or counsellors) don’t take it as Gospel that there has been compliance with the Act and Regulations. Check the certificate carefully for compliance. Go to the Act and Regulations. For the lawyer’s certificate and that of counsellors, check that there has been compliance as to their professional qualifications. Fail on this one and not only will your clients not obtain an order, but you will be on the wrong end of a complaint and professional indemnity claim.
A curious feature of the Family Relationships Act is that not any Australian lawyer can provide independent legal advice. The lawyer concerned must be admitted as a solicitor and barrister of the Supreme Court of South Australia and hold a practising certificate.[10]
Under the requirement for licencing of lawyers in South Australia, it is not a requirement that an interstate legal practitioner who does not have an office in South Australia needs to have a practicing certificate issued by the Law Society of South Australia. It is sufficient that the practicing certificate is issued interstate[11]. Therefore, if dealing with an interstate practitioner, it is essential these features are clarified, or an order may not be made.
Special Role of the Surrogate
The surrogate in effect has a veto role to an order being made: section 10HB(7). Her husband or heterosexual partner’s views may be taken into account if he makes submissions (section 10HB(9)(d)). Why does he not have a veto, as do birth fathers interstate? If the surrogate has a female partner, there may not be a specific ability to take her views into account, although she is a parent[12].
Surrogate’s Choice of Partner
Not only does the Family Relationships Actdiscriminate against intended parents who are not married or living in a heterosexual de facto relationship but a curious feature is that the surrogate:
(a) has to be married; or
(b) be in a heterosexual de facto relationship; or
(c) be single.
The Act does not specifically recognise a surrogate who is in a lesbian relationship. There is no ability for that surrogate’s partner to be counselled and there is simply no recognition of her within the process. It is possible, however, that while there is specific recognition of the birth father[13] , there is no recognition that the surrogate may be in a lesbian relationship and therefore there is no obvious protection to the lesbian partner.
Curiously, on the birth of the child the surrogate’s lesbian partner will be recognised as a parent, the partner is not recognised under section 10HA or 10HB[14] but parentage will be transferred from her to the intended parents.
There is Counselling and Counselling
One might have thought that while all parties should be separately counselled, and then counselled together – so that the disparate views of all parties can hopefully be blended into a unanimous view of what is required for the surrogacy and for the child – in South Australia, of all the States, a reverse approach is taken! Assessment counselling is undertaken with all parties by the counsellor. The commissioning parents are referred to a second counsellor for what is called implications counselling.
The surrogate and her partner are also referred for implications counselling – but it is a third counsellor! There is no getting back to the group counselling after the parties have seen counsellors 2 and 3, which in a problematic case could be a disaster.
Best Practice in counselling
Best practice was first described by the pioneers in surrogacy in Australia, the Canberra Fertility Clinic that there was counselling of the intended parents and the surrogate and her partner, and that counselling occur before the surrogacy arrangement is entered into. The Canberra Fertility Centre is of the view that, so as to minimise the risks with the surrogacy and ensure that it occurs as smoothly as possible that there be a further counselling at:
· 3 months of pregnancy;
· 6 months of pregnancy;
· 3 months post birth.
In my view this counselling is wise and ought to occur. This further counselling should, at a minimum, occur between the surrogate and the intended mother. Typically the bond between the surrogate and the intended mother is the strongest bond that needs to occur. If it comes asunder, then that can spell doom and gloom for the surrogacy and therefore for the child. Although there is no requirement under the Family Relationships Act for that counselling, I would strongly urge that it take place, even among family arrangements.
The arrangements that I have seen that have been the ones that have fallen apart have typically been between those of friends.
The Family Relationships Act quite properly requires there be counselling. I am critical, however, about how that counselling is structured under the Act.
Pre-Signing Counselling
Typically parties will have attended an IVF clinic before they consider undertaking surrogacy. It is the view of some clinics that there must be a relationship in existence between the surrogate and the intended parents before there will be any treatment for surrogacy. Although not legislated, this is a mandatory requirement of those clinics. The theory behind the policy is that if everyone knows each other and are friends or family, therefore the risks of something going wrong are lower. In my experience, the greatest risk where something has gone wrong is typically in friendship relationships (not family or strangers) where there might be an element for example of taking the matter for granted and not assessing the risks properly, that the surrogate might have post-natal depression and the surrogate being treated like a work horse.
I have seen surrogacy arrangements fall apart in a number of cases and only with the greatest of difficulty can they be stitched back together. Two of the cases that come particularly to mind to me are where the intended parents and the surrogate were friends for 14 years. Nevertheless some clinics are of the view that there ought to be a timeframe for a pre-existing relationship between the commissioning parents and the surrogate. IVF Australia in Sydney for example says that it should be a year. By contrast, its sister clinic, Queensland Fertility Group does not have a time limit. Repromed is alone, as far as I am aware, of all the Australian clinics insisting that there be a 2 year prior relationship. Without that, Repromed will not assist.
Once cleared of that barrier the parties then attend counselling. Counselling practices vary State by State and seemingly counsellor to counsellor. In my view the most important counselling, having had matters that had fallen apart and then had to repair them, is that counselling where everyone does it together. In my view probably one of the most valuable aspects of the counselling process is the report written by the counsellor. All of you will have read Family Reports. As we know with Family Reports there is an assessment process involved and it isn’t merely the interviewing that is important but it is the quality of the Report – which shows whether or not the Report writer has taken the time to analyse the issues, identify any risks and then identify any options for managing those risks.
In Queensland, for example, the most senior counsellor providing surrogacy counselling sees the parties on one occasion, each individually and then all four parties together. Prior to that he sends out extensive questionnaires dealing with MMPI[15]. Two weeks later after the interviews the counsellor follows up with a telephone call to each of the parties.
Another counsellor in Queensland has insisted the party see her either individually or together on a minimum of eight occasions but for two hours on each occasion spaced at least two weeks apart. I see that this process doesn’t necessarily resolve in a more thorough form of counselling or identification of issues, but what it does do is increase costs and delay matters.
Clients from Victoria have informed me that they have been stuck in the counselling loop for 18 months. Properly handled and with medical intervention being on their side, they should have had a child in 18 months – 2 years, not double that!
The process of counselling in South Australia I think misses the point and from discussion with counsellors, there was little input from IVF clinics and counsellors as to the legislative framework.
Clinical Approval
It is a requirement of each of the clinics in South Australia that following the signing of the surrogacy arrangement, the signing of the certificates by each of the lawyers and each of the counsellors that the clinic will not treat unless there has been requirements of its own internal ethics committee. This is the position for most clinics in Australia. It is important to know the requirements of the particular clinic. There is no point having a surrogacy agreement that fully complies with the law if your clients cannot get treatment- because you didn’t check the particular requirements of the clinic. Examples where a clinic may not treat include:
· The parties have known each other for less than 2 years (Repromed)
· Traditional surrogacy
· One or both of the intended parents has HIV
Can the Surrogate be Forced to Repay?
Of course, if there is a surrogacy contract, within the meaning of section 10F and the surrogate changes her mind, the contract is illegal and void under section 10G(1) and under general principles of law the money lies where it falls. However if there is a procuration contract, i.e. involving a broker, the money is recoverable: section 10G(3).
If there is a surrogacy agreement that is either a recognised surrogacy agreement or at least is not a surrogacy contract or a procuration contract, it is doubtful that the surrogate could be sued at least in contract. However, promissory estoppel may be available because of promises made by the surrogate and then reneged upon. In W v G [1996] NSWSC 43, a lesbian couple separated. This was in the days before the non-biological mother was recognised as a parent. Following separation, the non-biological mother said, in effect, to the biological mother – I am not liable to pay child support so I won’t. The biological mother sued the non-biological mother in the New South Wales Supreme Court for damages for promissory estoppel, given the plan and promise to raise children together. She was successful.
Of course, surrogates are often women of not great means and to sue a surrogate in relation to these matters would be in open court so the practical effect of suing for a breach may mean that it is better to forget the money.
Can the Surrogate Sue for Payment of Expenses?
I can’t see as a matter of principle that this would be any different. I would have thought that the court would give a surrogate great sympathy in enduring a pregnancy and child birth and not being paid for her expenses. In each case, however, one must be concerned that the expenses that have been paid, or are sought to be paid, fall within the strict confines of the Family Relationships Act. If they are not allowable expenses, then:
(a) the parties risk committing a criminal offence under section 10G;
(b) if expenses have already been paid, the surrogacy agreement may well be a surrogacy contract and therefore the offence is committed and the agreement is null and void;
(c) if the agreement is null and void than of course the monies that may have been paid to the surrogate may not be recoverable, and in the case of the surrogate seeking monies are not able to be sought.
Registration of the Birth
There has been the practice, of at least one solicitor in New South Wales, to encourage the genetic and intended father to be named on the birth certificate before the making of the order as to the father. As set out in the unreported Supreme Court of New South Wales decision of S v B; O v D[2014] NSWSC 1533 such an approach was criticised. White J was critical of the solicitor for advising the parties that the intended father should be named on the birth certificate as to the father when the statutory presumptions under the Status of Children Act (NSW) and Status of Children Act (Vic) clearly stated that the surrogate’s husband was the father.
I note the requirement to make accurate reference to parents.
I faced such a situation only on Monday in the Queensland Childrens Court. I acted for a gay couple who were seeking a parentage order. The genetic father, one of the intended parents, on the advice of the hospital, was named as the father on the birth certificate. I cited Sv B; O v D to the court, along with Groth and Banks and Re Blake. Judge Kingham had no hesitation in making an order in favour of my clients. The form of the order was that parentage was transferred from the surrogate and my client as father to both of my clients as parents.
It is essential that the parents as a matter of law, in accordance with statutory presumptions, are identified as the parents on the birth certificate. It is an offence under section 51 of the Births, Deaths and Marriages Registration Act 1996 (SA) to make a false or misleading representation to the Registrar.
So that it is clear, the Family Relationships Act makes plain[16], before the making of the order:
(a) the surrogate is the mother;
(b) her husband or male de facto partner is the father;
(c) her lesbian partner is the parent.
This is consistent with statutory presumptions under similar legislation throughout Australia and as Ryan J held in Mason and Mason (2013) FamCA 424 is part of a statutory scheme with the Family Law Act[17]. However, one needs to consider the impact of Green-Wilson and Bishop [2014] FamCA (unreported) discussed below.
But Who is the Parent?
If the surrogate is single there may be issues about whether there can be a transfer of parentage to the intended father, as there may be an issue that the intended father is the father. Assuming it is not a traditional surrogacy, there may then be an issue about who is the mother.
In Groth and Banks [2013] FamCA 430 Cronin J adopted a different approach than that of Ryan J in Mason and Mason. Her Honour, as I said above, adopted the view that the Family Law Act and the various States Status of Childrenlegislation (including therefore the Family Relationships Act 1975 (SA)) formed a statutory scheme based on the State legislation as to the presumption of parentage and therefore the view expressed by her Honour in 2012 in Ellison and Karnchanit [2012] FamCA 602 was incorrect. In Groth and Banks Mr Groth and Ms Banks had lived in a de facto relationship. Well and truly after the relationship ended (and they had undertaken a property settlement), Ms Banks approached Mr Groth asking that he father a child for her, through the use of an IVF clinic. He agreed. They represented to the clinic, in accordance with the then requirements of the Infertility Treatment Act (Vic) that they were a couple and that, in accordance with a form of that Act Mr Groth represented that he was a donor, not a parent.
Subsequently Mr Groth’s partner discovered some messages on his mobile phone. In what must have been an interesting evening she then discovered that he had a child. Shortly thereafter Mr Groth instituted proceedings under the Family Law Act seeking a declaration amongst other things that he was the parent of the child.
Ms Banks, predictably, stated the view that under the Status of Children Act 1974 (Vic) was the only parent. Mr Groth stated that the Family Law Act recognised a presumption of two biological parents for any child and that, except when there was a specific exception under that Act (for example under section 60HA) that each of the biological progenitors of the child were the parents of the child, where each of them undertook the intention to parent a child as opposed to, for example, the position of an anonymous donor.
Cronin J accepted that position, held that the class of “parent” under the Family Law Act allows each case to be determined on its own facts[18] and refused to deal with the issue of the form that had been executed by Mr Groth that he was only a donor because that was under State legislation and, by virtue of section 109 of the Commonwealth Constitution, the form was irrelevant to his decision.
Curiously, as I will discuss below the significance of that decision has been ignored, in of all places, Victoria.
Looking After the Surrogate
It is imperative in my view the one person who needs to be looked after prior to the birth of the child, and indeed after the birth of the child, is the surrogate.
A surrogate typically:
(a) is over the age of 25;
(b) has had all her own children;
(c) does not want to have any more children;
(d) loved being pregnant;
(e) didn’t mind childbirth; and
(f) most importantly has a classic blend of narcissism and altruism[19]in wanting to help others.
The Family Relationships Act, unusually, allows the surrogate and her partner to be aged only 18. In my view it would be foolish in the extreme, or an exceptional case, to allow any surrogacy arrangement to proceed where the surrogate is under the age of 25[20]. The standard applied internationally in the United States through reputable surrogacy agencies[21]and indeed adopted in various Australian States[22]is that the surrogate:
(a) must be 25; and
(b) has had all her own children.
I don’t see that the second is absolutely essential because it is possible, with great caution, for there to be a surrogacy able to proceed when the surrogate has not previously been pregnant and experienced pregnancy and child birth. I have had such an arrangement proceed successfully, indeed it was the matter in which orders were made on Monday, but I caution against it as the general rule because it must be clear that the surrogate does not want to have children ever and is aware of the risks of pregnancy and child birth and of something going wrong. She should be under no illusions about what might happen, including the loss of fertility.
The benefit of the surrogate having had children before and not wanting any more are:
(a) she is fertile;
(b) she has no desire to grab onto this child (particularly if it is a traditional surrogacy);
(c) if something goes wrong and she loses her fertility there may not be an actionable claim as a result.
Imagine if you are acting for the surrogate who has not had children before, may have a desire to have children, and irrespective of what any doctor may have said, you have not warned her of the possibility that an outcome of a surrogacy is that she may lose her fertility. You may be in the firing sights of a claim and a professional indemnity issue.
Why I consider the age of 18 for the surrogate to be far too young is because:
· most women will not have had their child by that age and may not have had their children by their early 20’s;
· it is rare to find an 18 year old who has the requisite maturity.
Quite simply if you allow a client who is 18 to proceed with a surrogacy arrangement without there having been the most careful counselling and most carefully drawn advice warning her of the consequences, you are asking for trouble.
I would only ever accept a client who is a surrogate under the age of 25, in those States where it is allowed with the clearest evidence that:
· she has had all her own children;
· there is ample evidence to demonstrate her maturity;
· she had received very clear advice documented to cover any potential law claim about the risks involved.
It is estimated that there is a one in 10,000 chance of the surrogate dying, as with other women from complications with pregnancy or child birth[23].
Aside from the three essential requirements of any surrogacy arrangement namely:
· flexibility(because medical procedures don’t always happen on time and there can be personal circumstances that change arrangements);
· mutual respect (if this isn’t there then the surrogacy arrangement shouldn’t proceed);
· communication(on this point I say to clients that they should assume that they need to be friends with each other for the next forty years given the magic of creation of a child so that the more they communicate the better);
what is also required is that the surrogate is cared for. This is part of respecting her. Neither she, her partner or their children should be placed at risk. Therefore:
(a) she should only be giving birth in a private ward. Associated with this the hospital should be chosen early so as to ensure that the intended mother can be in the hospital with the baby, bonding with the baby at the first available opportunity;
(b) there should be adequate life insurance for the surrogate;
(c) there should be adequate disability insurance (assuming that the surrogate was working) for the surrogate.
A curious feature of the Family Relationships Act is that the payment of life or disability insurance premiums might mean that the surrogacy agreement becomes a commercial one, resulting in the commission of offences by all and sundry.
Unique amongst Australia’s laws, the Surrogacy Act 2010 (Qld)[24] and the Surrogacy Act 2012 (Tas)[25](modelled after the Queensland legislation) recognises the specific role of the surrogate and in particular that she has the right to manage her pregnancy and childbirth as does any other pregnant woman.
Whilst this might seem merely a re-statement of the law generally, in all my surrogacy arrangements I insist that there be such a similar clause. Whenever I have acted for surrogates, they see clauses that say they can’t jump out of planes or must stay in the State of Victoria, go to such-and-such hospital, eat lots of healthy food, not drink, etc. and consider terminating the baby in certain circumstances. Nowhere in most surrogacy arrangements is there a statement that the surrogate is in control of her body. The universal feedback I’ve had in acting for surrogates is that this statement is a powerful endorsement of their unique role and makes them feel empowered.
As you will have seen from what should have occurred in the Baby Gammy case, it is imperative that as part of the process of planning the surrogacy, before the surrogacy agreement is entered into, and preferably before the assessment counselling has taken place, that the parties discuss in what circumstances the surrogate might have an abortion.
Offences
The Family Relationships Act 1975 (SA)[26]makes plain that for an order to be made, there must be an agreement, not an arrangement. Be careful that you do not turn your clients’ agreement into a contract! Receipt of valuable consideration (or the expectation of that consideration) under a procuration contract and inducing another to enter into a surrogacy contract when payment is involved are offences: s.10H (as is advertising). An intended surrogate could induce her spouse to enter into a surrogacy contract, after all.
Surrogacy and procuration contracts are illegal and void: section 10G. Therefore a surrogacy arrangement that is not a recognised surrogacy agreement, but is not a surrogacy contract or a procuration contract is legal, even though an order under the Act is not possible.
Section 10F provides:
(a) a person agrees to negotiate, arrange, or obtain the benefit of, a surrogacy contract on behalf of another; or
(a) a person agrees—
(i) to become pregnant or to seek to become pregnant; and
(ii) to surrender custody of, or rights in relation to, a child born as a result of the pregnancy; or
(b) a person who is already pregnant agrees to surrender custody of, or rights in relation to, a child born as a result of the pregnancy;
“valuable consideration”, in relation to a contract, means consideration consisting of money or any other kind of property that has a monetary value.”
“ (ix) the agreement states that no valuable consideration is payable under, or in respect of, the agreement, other than for expenses connected”
Section 10HB(9)(c) provides:
“(9) In deciding whether to make an order under this section, the Court must also take into account the following, if relevant:
(c) whether valuable consideration (other than for expenses of the kind allowed under section 10HA(2)(b)(ix)) has been given or received by either of the commissioning parents, or either of the child’s birth parents, for or in consideration of—
(i) the making of the order; or
(ii) the handing over of the child to the commissioning parents; or
(iii) the making of any arrangements with a view to the making of the order;”
On its face, the payment of life and disability insurance for the surrogate may not be “for expenses connected with pregnancy”, nor might be loss of wages of the surrogate or loss of income if self-employed. Payment of these or similar expenses might expose one or more of the parties (and possibly 1 or more lawyers) to:
(a) non compliance (and therefore no order) under section 10HB(9)(c); and
(b) the committing of offences under section 10H.
It would appear that the payment of legal costs of the surrogate and her partner for the Youth Court proceedings are allowable under the Family Relationships Act 1975 (SA): s.10HA(2)(b)(ix))D); section 10HB(9)(C).
Getting the Orders
I said in the check list at the beginning appropriate application is made to the Youth Court. The matter is given a fairly quick listing before the senior Judge. At last count there were approximately five or six surrogacy arrangements in which orders have been made in South Australia.
Once the order is made then for all purposes under Australian law the intended parents will be recognised as the parents of the child, by virtue of section 60HB of the Family Law Act 1975 (Cth). The Victorian Attorney-General has a different view, about which I will address shortly.
Therefore if the intended parents die between the making of the order and the entry into the birth register, it doesn’t matter to the extent that they will nevertheless be recognised as the parents.
Once the order is obtained it is then necessary to alter the birth register which is done in a straight forward manner with the Registrar of Births, Deaths and Marriages. This is done by transmission of the order by the court to the Registrar direct: s.10HD.
Secrecy
Consistent with other States, proceedings in the Youth Court are closed, and the files are sealed. Section 24 of the Youth Court Act 1993 (SA) provides:
“(1) Subject to this section, no person may be present at any sitting of the Court except—
(a) officers of the Court;
(b) officers or employees of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Family and Community Services Act 1972 ;
(c) parties to the proceedings and their legal representatives;
(d) witnesses while giving evidence or permitted by the Court to remain in the Court;
(e) a guardian of the child or youth to whom the proceedings relate;
(f) if the proceedings relate to an offence or alleged offence—
(i) an alleged victim of the offence and a person chosen by the victim to provide support for the victim;
(ii) a genuine representative of the news media;
(iii) if a guardian of the youth who committed, or is alleged to have committed, the offence is not present—an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth;
(h) any other persons authorised by the Court to be present.
(1a) For the purposes of subsection (1)(f)(i) it is irrelevant if the proceedings also relate to other offences or alleged offences.
(2) The Court may, however, exclude any of those persons from the Court if the Court considers it necessary to do so in the interests of the proper administration of justice.”
Section 10HE of the Family Relations Act provides:
“Except as authorised by the Youth Court of South Australia, the records of proceedings for an order under section 10HB or 10HC will not be open to inspection.”
Going to the Family Court
There is no jurisdiction of the Family Court of Australia or the Federal Circuit Court of Australia concerning surrogacy for domestic matters except as to declarations as to parentage concerning proceedings in those Courts.
The Family Law Courts do make orders concerning overseas surrogacy arrangements of which I will speak briefly shortly.
Going Overseas
It is legal for people in South Australia to go overseas[27]. Only those who have been married in a heterosexual relationship for a minimum of 3 years can undertake surrogacy in India. A recent report indicates that India is refusing surrogacy visas for Australians[28]. Thailand is no longer available following the Baby Gammy saga and the Japanese man who had fathered 16 children via surrogacy there. Australians have traditionally also gone to the United States (which generally has very high quality surrogacy agencies and IVF doctors), but increasingly Australian intended parents are going to Nepal and Mexico and to other exotic locations including Cyprus, Ukraine (or at least until MH17 was shot down). Currently the State of Tabasco in Mexico (where surrogacy has occurred), is looking at moves to ensure that only those who are resident in the State of Tabasco for the last 5 years can undertake surrogacy there. Quite simply what occurs in developing countries may represent human rights breaches and exploitation of all involved, including the intended parents.
The only places that I recommend that intended parents undertake surrogacy overseas are:
(a) for those not living in Queensland, New South Wales, ACT or Western Australia – the United States;
(b) for those living in those jurisdictions – Canada[29].
If undertaking surrogacy overseas there is a very high chance that an egg donor will be required. Under the Human Cloning Act[30] it is offence both under Commonwealth and South Australian legislation to pay an egg donor other than her “reasonable expenses incurred” which a breach of which is punishable by up to 15 years imprisonment.
By virtue of section 5G(2)(a) of the Criminal Law Consolidation Act 1935 (SA), South Australian jurisdiction may extend overseas. Anyone undertaking surrogacy or egg donation overseas or for that matter any lawyer or doctor advising clients about undertaking egg donation or surrogacy overseas should be wary of the section – and anyone considering undertaking commercial surrogacy overseas, including or considering undertaking egg donation overseas should:
(a) obtain legal advice from an experienced lawyer in Australia concerning that matter; as well as
(b) experienced advice from a lawyer in the other country concerning that matter – with the two lawyers acting as a team.
Anyone contemplating surrogacy overseas should add a third person to this group- a migration agent in Australia as well.
Ryan J in Ellison and Karnchanit [2012]FamCA 602 said at [140]:
“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 children are born.”
For those undertaking commercial surrogacy overseas, whilst they may be recognised under the Australian Citizenship Act 1987(Cth) as “parents” – it is doubtful or at least uncertain under other legislation, in particular the Family Law Act whether they are recognised as parents. Only a very small number of those who undertake commercial surrogacy overseas seek parentage orders in the Family Court. This is because of practicality and cost. It is possible that this may change in the near future.
There are 3 ways the law can recognise a parent:
(a) by birth;
(b) by intention; and/or
(c) by genetics.
Unhelpfully, in Australia we have all three:
· Genetics:The usual approach taken by the Department of Citizenship and Border Protection is to rely on genetics.
· Intention: Following the decision in Re H v Minister for Immigration and Citizenship [2010] FCAFC 119 – demonstrated intention for citizenship may be sufficient (though when there is no genetic link, the Department is of the view that the application needs to be subject to “closely scrutinised and verified to the maximum possible extent”[31]. It should not be assumed that if there is no genetic link that citizenship will be obtained.
· Intention/reality:In Blake and another [2013] FCWA 1 – a gay couple who undertook surrogacy in India were found by the Family Court of Western Australia to be parents in part because of their intention and in part due to the “reality” of their care of the children.
· Birth-as recognised by the State Status of Children legislation, such as the Family Relationships Act.
In Ellison and Karnchanit [2012] FamCa 602, Ryan J held that a Queensland man who undertook commercial surrogacy overseas was a parent under the Family Law Act and that the Family Law Act as Federal legislation overrode the Status of Children Act(Qld).
In Carlton and Bissett [2013] FamCa 143 Ryan J held that a South African man who resided in South Africa and was recognised by a South African Judge as a parent there should, under the comity principle, be recognised as a parent here.
In Mason and Mason [2013] FamCa 424, Ryan J found that she had been incorrect in Ellison and Karnchanit and that the State Status of Children legislation formed a scheme with the Family Law Act, so that if you were a parent under the Status of Children Act (or for that matter not a parent) you were a parent (or not a parent) under the Family Law Act.
In Groth and Banks (as I have discussed elsewhere in this paper) Cronin J held that the Family Law Act in recognising 2 parents of a child overrode the Status of Children Act (Vic), relying on both intention and biology.
On 6 November 2014 a judgment was handed down by Johns J in Melbourne called Green-Wilson and Bishop. It is not yet on Austlii. It involved a gay couple who undertook surrogacy overseas. The impact of that decision might mean that in Victoria, Tasmania, South Australia and Northern Territory at least, that an intended father that is the genetic father of the child is recognised as a parent under the Family Law Act. Johns J held, referring to Mason and Mason:
“Her Honour was there dealing with a surrogacy arrangement in New South Wales where there is specific legislation dealing with those aspects, being the Surrogacy Act 2010 (NSW) and the Status of Children Act (NSW). The New South Wales legislation effectively “covers the field” with respect to children born of surrogacy arrangements. In New South Wales commercial surrogacy arrangements are prohibited and as legislation otherwise makes specific provision for altruistic surrogacy arrangements.
The landscape is markedly different in Victoria, as commercial surrogacy is not prohibited here. Therefore, there is a lacuna between state and Commonwealth laws in respect of children living in the State of Victoria born as the result of international commercial surrogacy procedures.
Paragraph 33 of Mason ….., Ryan J noted as follows:-
It is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by parliament that the parentage of children born as a result of artificial conception procedures were under surrogacy arrangements will be determined by reference to those provisions not the general parentage provisions. This interpretation achieves, on a states by state (and territory) basis, a uniform system for the determination of parentage.
That may be so in states or territories where there is legislation specific to the issue of the determination of parentage in respect of such surrogacy arrangements. However it does not resolve the issue of what is to occur for children born in states that do not have the benefit of such provisions.
In circumstances where the state legislation is silent with respect to the determination of parentage of children born of commercial surrogacy procedures (which are not prohibited in Victoria), I am satisfied that it is appropriate to make a declaration with respect to a child born of such procedures who is now living in Victoria. To do otherwise would be to elevate public policy considerations (as to the efficacy or otherwise of commercial surrogacy arrangements) above a consideration of the welfare of children born of such arrangements. In my view, the interests of the child must outweigh such public policy considerations.”
Not surprisingly, therefore John J held that one of the men, who was the genetic father of the child, was a parent under the Family Law Act. His Honour stated:
“The reality of [the child’s] circumstances is that the only parent she has ever known are the applicants in these proceedings. A declaration confirming the second applicant’s status as parent will reflect the reality of [the child’s] life.”
Interstate Parentage Orders
Where a child is born in South Australia but the intended parents reside interstate and therefore the parentage order is made interstate, it is not clear if the Registrar of Births, Deaths and Marriages can alter the birth register accordingly. Section 22A of the Births, Deaths and Marriages Registration Act 1996 (SA) may be limited to orders under s.10HB or 10HC (setting aside an order under s.10HB). I am aware of an order being made in the County Court of Victoria about a child born in South Australia. The solicitor who handled the matter described getting the birth register as a “nightmare”. The child’s birth register was altered by these means:
· Ancillary orders were made in the County Court of Victoria.
· A new birth entry for the child was entered by the Registrar of Births, Deaths and Marriages in Victoria- but showing the child having been born in South Australia.
· The existing birth entry for the child in South Australia was then closed off.
· The birth entry in Victoria was then altered, to reflect the substitute parentage order.
Experience interstate varies from State to State. For example, there should be no difficulty with dealing with the Queensland Registrar of Births, Deaths and Marriages. They will ordinarily in a matter of days recognise the interstate order and alter the birth register accordingly.
The New South Wales Registrar of Births, Deaths and Marriages typically take 6 weeks to process the alteration of the birth register. When I did the first interstate parentage order registered in New South Wales (despite specific requirements under their legislation to allow interstate parentage orders), the process took 9 months. The relevant official at the Registrar’s office had not seen one before and could not make a decision. Only through a long process of harassment from my office did the matter get acted upon.
Victoria is special. Assume you have obtained an order under the Family Relationships Actbut the child was born in Victoria. Your clients need to be aware, from day one, that they will need to budget to obtain a separate registration order in Victoria and that they should allow say $10,000 for that process. All parties will need to appear in the County Court in Melbourne for that purpose.
I have attached the letter I wrote to the Victorian Attorney-General, Mr Robert Clark, and his response.
Family Law Council
The then Commonwealth Attorney-General Nicola Roxon charged the Family Law Council with writing a report about conflicts between the Family Law Act, the State surrogacy legislation and the State Status of Children Acts amongst others. That report was released in August 2014 by Senator Brandis. The current position of the Abbott government in response is that the Government is “considering the report”.[32]
The report is critical of commercial surrogacy but also recommends that there be an inquiry into commercial surrogacy in Australia.
Most significantly the report recommends that for those undertaking overseas commercial surrogacy arrangements that they undertake a process to make an application for parentage in the Family Court or the Federal Circuit Court. Judge Harland will talk further about this.
Hague Convention?
The Hague conference on private international law has proposed a possibility that there be an international convention on private international law concerning children, including as to international surrogacy arrangements.
It is highly likely after the Baby Gammy saga that there will be such a convention. When it will come into place and its form is known.
Member nations are meeting again, in 2015. It is likely at that time that they will charge the conference with drafting a convention. A possible model for the convention that has been proposed has been along the lines of the Hague Intercountry Adoption Conventioni.e. approval from central authority to central authority. In my view if such a model is adopted it will be calamitous to international surrogacy because of the potential delays in becoming parents. Quite simply intended parents will look at other means of becoming parents and will do so surreptitiously because of their desperation to achieve parenthood.
Another model that has been mooted is that in those countries that are signatories where surrogacy is governed by judicial acts that provided that the Court approves these surrogacy arrangements in country A and therefore makes an order concerning the best interests of the child, recognising the intended parents as the parents of the child, that those parents will be recognised as the parents of the child in country B.
I estimate that the minimum time before such a convention is in place would be three years. Whilst this may seem a long way off, with surrogacy arrangements taking 18 months – 2 years typically, this time will creep up very quickly.
Finally, Working with Other Professionals
It is essential in my view that anyone undertaking surrogacy work, subject of course to their relevant professional duties (including in our case our duties to the law, the profession, the client and as officers of the court), needs to work collaboratively with the other professionals involved in the process including:
(a) the opposite lawyer;
(b) any treating doctors;
(c) IVF clinic;
(d) any counsellors who are involved.
Whilst you may act for the commissioning parents or the surrogate and her partner and any advice that you give to your clients is subject to legal professional privilege, you should assume that whatever you discuss with your clients and in particular whatever you advise them will, within 5 minutes of any attendance that you have with your client be the subject of discussion and disclosure by your clients to the other parties.
We can choose as lawyers for our clients to aid our clients to achieve their goals of parentage of a child with a minimum of fuss, recognising that the alternative is that we can set up our clients to fail, and to do so spectacularly for say 30 years of the child’s life.
Whenever possible, subject always to professional duties, and especially the best interests of the child, we should be seeking to minimise conflict. Our clients but especially the children conceived and born through surrogacy, deserve nothing less.
Stephen Page
Harrington Family Lawyers
24 November, 2014
[1] As seen in FamCA 2378 Re Evelyn [1998]
[2] Dr Bradford Kolb, presentation to the American Society for Reproductive Medicine Conference, Honolulu, October 2014
[3] National Health and Research Council, Ethical Guidelines (2007), Guideline 13.1.
[4] As seen in Pearce v SA Health Commission(1996) 66 SASR 486; McBain v Victoria (2000) FCA 1009
[5]However, I note s. 5G of the Criminal Law Consolidation Act 1935 (SA) as to extra-territorial jurisdiction in limited circumstances.
[6]Cf. Professor Jenni Millbank quoted in the Sydney Morning Herald, 14/9/2013.
[7]Such as gay and lesbian couples, singles, or those unable to locate either an egg donor or a surrogate
[8] Re H, AE(No.3)[2013] SASC 196
[9] LWV v. LMH [2012] QChC 26. It is not on Austlii, but can be found here: http://archive.sclqld.org.au/qjudgment/2012/QChC12-026.pdf. I acted for the surrogate and made extensive submissions about what was conception.
[10] Section 10HA(1) Family Relationships Act 1975(SA)
[11]E.g.s.21, 52AA, 52AAB, Legal Practitioners Act 1981 (SA).
[12]Sections 8, 10A (“qualifying relationship”), Family Relationship Act 1975 (SA), section 10C
[13] Section 10HB(9)(d) Family Relationships Act1975 (SA)
[14]Unless the lesbian partner is considered to be the husband of the surrogate: section 8, section 10C, section 10HB(9)(d).
[15] Minnesota Multiphasic Personality Inventory
[16]Section 8, 10C
[17]Although I note the differing approach by Collier J in Groth and Banks [2013] discussed below.
[18] At [12]-[16]
[19]As described by Dr Kim Bergman, Psychologist, Growing Generations, including at the American Society for Reproductive Medicine conference, Honolulu, October 2014.
[20]One also must be concerned in acting for 18 year olds pursuing surrogacy, when there is not a compelling case of an extraordinary nature.
[21]For example Center for Surrogacy Parentage, Growing Generations, Circle Surrogacy
[22]E.g. Surrogacy Act 2010 (Qld), section 22(2) (f) and (g); Surrogacy Act 2010(NSW), section 27(1)
[23]Dr Warren D Ambrosis public presentation Brisbane April 2014
[24]S.16
[25]S.11
[26]S.10H, see also 10F and 10G
[27]Although cf. section 5G(2)(a) Criminal Law Consolidation Act 1935 (SA) as to geographical nexus.
[29]Canada offers only altruistic surrogacy.
[30]S. 21, 24 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), mirrored by s.16 Prohibition of Human Cloning for Reproduction Act 2003 (SA)
[31]Australian Citizenship Instructions, [19.4.2]
[32]Meeting with Senator Brandis’ office, November 2014 by the author.
