Two weeks ago I gave a snapshot of surrogacy across the nation to the conference of the Fertility Society of Australia, held in Hobart. Here is my presentation:
Fertility Society of Australia
16 September 2019
Given the limited amount of time I have today, I wanted to focus on major developments that have occurred with surrogacy.
In 2011 the body responsible for the writing of Hague Conventions – the Hague Conference on Private International Law – commenced a project looking at whether there should be a convention concerning private international law regarding children, including international surrogacy arrangements. Private international law in essence is the law in different countries affecting individuals and companies. The prime means of dealing with the private international law has been the writing of conventions at The Hague. Australia is a member state.
The Hague Permanent Bureau, the body responsible for administering the conference, has for a number of years engaged a group of 20 working experts (one per country) to help guide it as to how to deal with this issue. Some years ago, the Hague Conference decided that there ought to be a convention about each issue. The Australian representative at the working group is the former Chief Justice of the Family Court of Australia, the Honourable John Pascoe CVO AO. There are two observer organisations at the working group and dealing with the Convention, the International Academy of Family Lawyers, and International Social Services.
In 2016, I co-wrote and was the principal advocate for a policy position of the American Bar Association as to the form of a proposed Hague Convention. It argued that the appropriate course was that of comity or mutual respect and that the most apt form would be to have mutual recognition of orders concerning children.
In 2018, the working group recommended, and the Conference accepted that that model was the appropriate model for regulation of international surrogacy arrangements. We are many years away before there is a convention.
Surrogacy in the United States
I am indebted to my Los Angeles colleague Andy Vorzimer, one of the leading surrogacy lawyers in the world who gave me these statistics in September last year:
“The statistics have been compiled by our office since 1994. As of last month, we have calculated that since 1979 in the United States:
· More than 151,000 surrogate deliveries;
· 13 instances of gestational carriers manifesting an intent to keep custody of the child;
· 25 instances of traditional surrogates manifesting an intent to keep custody of the child;
· 91 instances of intended parents threatening not to take custody of their child.”
The United Nations Special Rapporteur on the sale and sexual abuse of children and the exploitation of children in child pornography last year wrote a report in which she was critical of safeguards concerning children in surrogacy throughout the world. Her focus at that stage was the optional protocol to the International Convention on the Rights of the Child.
In her report, the Special Rapporteur was critical of the American Bar Association report. Furthermore, she asserted:
1. That the making of pre-birth orders concerning children in surrogacy arrangements (as commonly occurs in many parts of the United States, as well as Argentina and South Africa) amounted to the sale of children.
2. That the entering into of binding contracts with surrogates (as commonly occurs, for example, in the United States and Canada) amounted to the sale of children.
3. That the payment to surrogates of any amount above their reasonable expenses (which is arguable occurs in much of the United States and indeed is arguable depending on who was doing the defining may be occurring in Canada) amounted to the sale of children.
In my view, to assert concerns about the human rights of surrogates, children and the intended parents is entirely appropriate. There are jurisdictions in the world where there are very few human rights protections, some practices are corrupt and the IVF industry is unregulated. Chief Judge Pascoe as he then was describes some of the surrogacy jurisdictions as being akin to the Wild West. I think that description is apt.
But to characterise in effect surrogacy occurring in Argentina, South Africa, the United States and Canada as being the sale of children is absurd and out of touch.
Following that report, a conference was organised in Cambridge in June this year comprised of 250 invited surrogacy experts from around the world. They included John Pascoe, counsellor Narelle Dickinson from Queensland, Louise Johnson from VARTA, Justice Bennett from the Family Court and Judge Harland from the Federal Circuit Court.
The purpose of the conference was to highlight:
· Current research about surrogacy outcomes for parents, children and surrogates;
· Different models of surrogacy regulation varying between outright prohibition, fairly strict regulation, looser regulation to a more liberal model; and
· Aiming for a future approach concerning surrogacy.
I was glad that the Special Rapporteur was able to attend.
Just before the Cambridge Conference was held, the Law Commissions of England and Wales and Scotland issued a discussion paper calling for reform of surrogacy laws there so that rather than having the post birth model, instead provided that a checklist of mandated steps had taken place then at birth the intended parents were automatically recognised as the parents. In disputed cases, nevertheless, it would be a matter for a judge. The report is a helpful summary of current research regarding surrogacy. Interestingly, UK surrogates considered that they were not the parents and never considered themselves to be. They had always considered that the parents were the intended parents and they too were keen to ensure that at birth the intended parents were recognised as the parents, not at some later time.
Prior to the conference, the Special Rapporteur called for submissions in view of her addressing the UN General Assembly in October this year. The US in its submission (which I have attached) says bluntly to the effect that the US is of the view that the Special Rapporteur does not have the relevant jurisdiction.
Human Rights Watch and the International Women’s Health Coalition in a comprehensive submission set out international law that might relate to surrogacy, including the right to found a family. I have attached this submission at the back of this paper.
After the Special Rapporteur attended the Cambridge Conference, I am delighted that instead of what appeared to be her earlier approach was that in addition to there being a Hague Convention that there also be a United Nations Convention, she took the view that the approach to an international regulation of surrogacy should be through a Hague Convention, albeit with more focus on human rights.
Part of the difficulty in approaching this subject is that the focus of the Europeans (remembering that much of Europe prohibits surrogacy) has been on the rights of the child. For constitutional and historical reasons, much of the focus of the United States instead has been on the right to procreate. Between these fundamentally different viewpoints, The Hague somehow is expected to produce a meaningful convention!
Australians going overseas versus domestic surrogacy
It remains the case that Australians go overseas at a much greater rate of knots than undertaking surrogacy at home. The most recent figures that I have seen from 30 June 2018 say that 179 children obtained Australian citizenship by descent after their parents had undertaken an overseas surrogacy journey. That number will understate the number who undertook surrogacy overseas because:
· There will be some heterosexual couples who falsely state to the Department of Home Affairs that the child was carried by the mother (not the surrogate).
· There are a number of visa holders in Australia, for example, permanent residents, who undertake surrogacy overseas and their children will not appear in the citizenship statistics.
My best estimate on the number of children who are born through domestic surrogacy each year is between 60 and 70. The numbers are opaque, in part because in the New South Wales and Victorian courts they are in the adoption lists, but those lists aren’t broken down to between adoption and surrogacy. Most of those surrogacy journeys occur in Queensland and New South Wales and Victoria. In South Australia and Western Australia by contrast, typically there is one child born through the surrogacy process a year.
Again, those numbers do not adequately reflect all the surrogacy journeys that are occurring in Australia. From time to time I am told by IVF clinics of suspicion that intended parents have not been honest about their journey and may well have been undertaking surrogacy (although they are representing that they are undertaking some other form of ART) – as a couple. I have had a case where the parties misrepresented themselves to two such clinics to that effect. How common it is I do not know.
In addition, in part because of perceptions about cost, there are a number of traditional surrogacy journeys that occur in Australia not involving lawyers (at least not until later if at all) or courts. It is hard to know those numbers. But nevertheless in broad terms of the numbers that are known, it would appear that for every child born in Australia through surrogacy, three are born overseas.
The 2016 House of Representatives Inquiry came and went. It recommended that there be nationally consistent laws regarding surrogacy and that it be harder to undertake surrogacy overseas. It recommended urgent action. There was no response from the Federal Government of any kind until November 2018, when it said that it would work with the States and Territories.
Much more significantly has been the effect of the High Court decision in Masson v. Parsons  HCA 21 in which the High Court laid out the test as to who was a parent under the Family Law Act, i.e. when there is artificial reproductive treatment, that a parent is someone in ordinary contemporary Australian usage of English to be a parent. The nature of that definition means that there does not necessarily need to be a genetic link between a parent and child.
The High Court made plain that the Family Law Actreigned supreme and that where there was a conflict between the Family Law Act and the State or Territory Status of Children Act, the latter is irrelevant.
Therefore it must be assumed that when there is any known donor, the known donor may well be a parent. The six judges of the High Court who delivered a joint judgment (the seventh agreeing with the outcome) also held that it wasn’t settled that the number of parents under the Family Law Act was necessarily limited to two. One must wonder if all the State and Territory surrogacy legislation is now rendered redundant because of that decision. One must also wonder who gets named on the birth certificate at the beginning. Each case will need to be decided carefully in light of that decision.
The Family Court had previously held in Bernieres and Dhopal  FamCAFC 180 that a Victorian couple who had undertaken surrogacy overseas (and done so lawfully in Victoria) were not the parents under the Family Law Act because they did not fall within any category of who was a parent under that Act and did not fall within any category of who was a parent under that Act and did not fall within any category of who was a parent under the Status of Children Act 1974 (Vic). Although the reasoning of the High Court in Masson v Parsons did not directly relate to Bernieres and Dhopal, it would appear that Bernieres now is incorrect law and that Mr and Mrs Bernieres would be recognised as parents under the Family Law Act.
There have been five cases in the Family Court in which there has been an attempt to register a US surrogacy order with the Family Court. At the time this appeared to be the only way in which those parents could be recognized as parents in Australia. The cases are:
· Re Halvard  FamCA 1051;
· Re Grosvenor  FamCA 366;
· Sigley and Sigley  FamCA 3;
· Rose  FamCA 978;
· Allan and Peters  FamCA 1063.
I acted in Re Grosvenor, Sigley and Sigley, Rose and Allan and Peters. In Re Halvard, Forrest J ordered that the names of the lawyers not be published.
In the cases decided by Justice Forrest, registration was granted. In the two cases decided by Justice Carew, registration was refused, in part because it would give curial approval to commercial surrogacy.
The cases are a helpful guide as to what is and what is not commercial surrogacy, particularly under the Queensland and New South Wales Surrogacy Acts.
The personal challenge from Masson v. Parsons
My husband Mitchell and I have had a baby daughter Elizabeth through surrogacy. She is now at the time of this conference two months old. This was a domestic arrangement in Brisbane. Our surrogate is single. Our child was conceived from Mitchell’s sperm and egg from a friend who was an egg donor. Two issues have occurred following Elizabeth’s birth.
The first occurred the night she was born. Elizabeth was born in the early hours of the morning. For medical reasons our surrogate had been in the hospital for over a week. She wanted to go home to spend time with her daughter. Elizabeth had to spend the night in hospital for some health checks. Our surrogate was given her discharge papers. The word “surrogacy” was then mentioned. The hospital, despite its size and being very experienced with surrogacy, not come across a surrogate leaving before the baby. The matter was dealt with by one midwife and then another and then escalated to the head of the midwife section, then an executive, then another and from recollection a third executive before the hospital lawyer was called.
The hospital lawyer’s advice back through this telegraph system was it was not “advisable” for our surrogate to leave. This was code for if she did leave, then there may be drastic consequences. The thinking behind it was that our surrogate was the only parent. As a matter of law, this was untrue in light of Masson v. Parsons. At the very least, Mitchell was also a parent, and possibly me too.
It felt as though our surrogate had been violated. She was extremely distraught because in effect she was being held prisoner at the hospital. It was truly an awful experience I do not wish upon anybody else. I have since written to the hospital and I hope that there is not a repeat.
Elizabeth’s birth had to be registered. The question that I faced following Masson was as to whose name was to be on the birth certificate as a parent. Prior to the decision in Lamb & Shaw  FamCA 769, it was clear in Queensland under the Status of Children Act that the only parent was the surrogate (irrespective of genetics) and therefore only she would be named on the birth certificate as the parent.
Lamb & Shaw highlighted section 23 of the Status of Children Act 1978 (Qld) which says to the effect that the provider of sperm unless subsequently married to the birth mother does not have the rights or responsibilities as a parent. In Lamb & Shaw, Justice Tree formed the view that therefore an intended father through surrogacy who was also the genetic father where the surrogate was single was therefore a parent under the Status of Children Act, albeit one with no rights or responsibilities.
Childrens Court judges in Queensland have not followed that approach. They have been firmly of the view that because of the definition of birth parent under the Surrogacy Act (which excludes an intended parent) that therefore an intended parent (such as Mitchell), should not in those circumstances be named as a parent on the birth register.
The result of Masson v. Parsons would therefore say that Mitchell at the least was a parent under the Family Law Act and therefore he should have his name on the birth register. The problem with that is that the Childrens Court of Queensland may not be empowered to transfer parentage from Mitchell and our surrogate to Mitchell and me.
Ultimately the decision was made that only a surrogate was named on the birth certificate and that if an error has been made in the view of a judge, then that can be rectified by the making of an order to have both Mitchell and me named on the birth certificate as parents.
I never expected in my life to be a test case, but apparently that happened. That was always to happen with clients!
Surrogacy in Queensland continues to be regulated by the Surrogacy Act 2010 (Qld). There have been no prosecutions under that Act whether domestic or international surrogacy since its enactment. Plenty of Queenslanders have gone overseas for surrogacy, some clearly for commercial surrogacy in that period.
New South Wales
Between 2014 and 2018, the Department of Justice carried out an international review of the Surrogacy Act 2010 (NSW). No changes were proposed. It was acknowledged that it was difficult prosecuting those that went overseas for commercial surrogacy. Commonwealth leadership was called for.
The only significant legislative change was last year to the Artificial Reproductive Technology Act 2007 concerning the use of embryos.
There have been no prosecutions under the Surrogacy Act 2010 (NSW) whether domestic or international, since its enactment. There are many residents of New South Wales who have undertaken surrogacy overseas, some commercial.
Australian Capital Territory
There has been no change to the law and none proposed. The Parentage Act 2004 (ACT) continues to regulate surrogacy. It continues to provide discrimination in that it requires the intended parents to be a couple and the surrogate to be part of a couple.
The ACT, like Queensland and New South Wales criminalises overseas commercial surrogacy. No prosecution has occurred.
Victoria has just gone through an extensive review of ART and surrogacy laws. There has been criticism of the Patient Review Panel (although that was not within the terms of reference). There were some horror stories about the approach taken by the Patient Review Panel. The Panel remains. There is liberalisation proposed as to what surrogates can be paid for expenses, to bring Victoria in line with the scheme in New South Wales and Queensland. Currently the offence in Victoria is to pay a surrogate more than prescribed expenses. It is recommended that there be a specific offence of entering into a commercial surrogacy arrangement.
The review concluded that it would not recommend the overseas criminalisation of commercial surrogacy. It noted that the House of Representatives and the SALRI review in South Australia had recommended not to do so but that Professor Sonia Allen in her Western Australia review had recommended overseas commercialisation of surrogacy, that there was strong arguments either side, that this required a further inquiry and in any event was outside its terms of reference.
The proposed changes in Victoria are in my view worthy of a presentation of their own.
Of course, in Victoria it is not an offence to engage in commercial surrogacy overseas.
The legislation governing surrogacy in Victoria remains the Assisted Reproductive Treatment Act 2008 (Vic) and the Status of Children Act 1974 (Vic). As far as I am aware, there have been no prosecutions under the Assisted Reproductive Treatment Act 2008for paying a surrogate greater than prescribed expenses.
There has currently been a Bill progressing through the Victorian Parliament to allow married women to undertaking ART without the consent of their husbands. This occurred following a Federal Court case last year when a woman successfully challenged that restriction.
Surrogacy in Tasmania continues to be regulated by the Surrogacy Act 2012 (Tas). It is lawful in Tasmania to go overseas for commercial surrogacy. There have been no prosecutions under the Surrogacy Act 2012 and as far as I am aware, there are no proposals to change the legislation.
South Australia remains a moving feast when it comes to legislation. There have been amendments to the surrogacy legislation there in 2015, 2017, a further proposal for amendments in 2018 (which ultimately were shelved) and now there is a draft Surrogacy Bill before Parliament.
The Surrogacy Bill was preceded by a review by Professor Allen, an inquiry by the South Australian Law Reform Institute (SALRI) as to discrimination in South Australian law against LGBTI peopleand a further SALRI inquiry specifically as to surrogacy. The Bill proposes to replace provisions in the Family Relationships Act 1975 (SA) and makes some incidental amendments to the Assisted Reproductive Treatment Act 1988 (SA).
The Bill is likely to be debated in Parliament later this year and if so, is expected to take effect early in the New Year.
Some significant features of the Bill are:
1. It is standalone legislation, rather than being tucked away in the provisions of the Family Relationships Act.
2. The reference to commissioning parents (as was recommended in Victoria) is to be ditched in favour of intended parents.
3. A principle of the Bill is to uphold the human rights of all involved (including the child).
4. The approaches taken in the Queensland and New South Wales Surrogacy Acts are largely adopted.
5. Entering into a commercial surrogacy arrangement will be a specific criminal offence and, it is arguable, may be an offence in doing so overseas. SALRI was of the view that, despite my submission that there was a risk under the existing law of committing an offence relating to surrogacy overseas that that was not the intention of Parliament in the current legislation. Professor Allen in her WA review commented on SALRI’s comment that that was a matter for interpretation.
Professor Sonia Allen has undertaken an extensive review of the regulation of ART and surrogacy in Western Australia. She has recommended, for example, that the Reproductive Technology Council be abolished and the current central register in Western Australia which she describes as not being fit for purpose be replaced. She has also suggested broad liberalisation of the Surrogacy Act, to bring it in line with the model seen in Queensland and New South Wales.
Professor Allen has also recommended that there be specific overseas criminalisation of commercial surrogacy. It is currently an offence under the Surrogacy Act 2008(WA) to enter into a surrogacy arrangement that is for reward and if any of the elements of that offence are committed in Western Australia even though it is an overseas surrogacy arrangement, the offence is still committed.
Professor Allen argues that overseas criminalisation is warranted, in part because of concerns raised by the Special Rapporteur in her first report. In her second report (published after Professor Allen’s review) the Special Rapporteur recommends that the intended parents not be criminalised, but that intermediaries be the subject of criminal sanction.
A feature of the Surrogacy Act is that single men and male couples cannot access surrogacy, in what appears to be a clear breach of the Sex Discrimination Act 1984 (Cth). I wrote to the Health Minister regarding this in 2017. Some months later the inquiry was called. A Bill to rectify this discrimination was passed by the Lower House of Parliament. When it got to the Upper House, it stalled. It was then referred to Committee. The Committee has called for extensive changes to that Bill. I am doubtful as to whether there will be substantial reform in Western Australia in this term of Parliament.
The Northern Territory Government has been watching keenly the events in South Australia. Helpfully, the Northern Territory Health Minister is also the Attorney-General. There have been two public fora held concerning surrogacy, one in Darwin and one in Alice Springs. It would appear that, subject to what is happening in South Australia, that the Northern Territory at long last may have laws concerning surrogacy. It is not before time.
2 September 2019