Queensland surrogacy and NSW surrogacy presentation
Wednesday, March 23, 2016
On Sunday, Natalie Moffatt, a Sydney solicitor, was kind to present a paper I had written about surrogacy in NSW and Queensland to a conference run by Marbury Chambers in Sydney.
Here is the paper:
MARBURY CHAMBERS
SYDNEY 20 MARCH 2016
Surrogacy Law 101 – How to Obtain a Parentage Order
By Stephen Page[1]
The unfortunate reality is that we have state based laws regulating surrogacy. I say unfortunate, because we don’t have national laws, and every state is different. I am covering both New South Wales and Queensland in this paper (which will be graciously delivered by Natalie Moffatt in Sydney as I will be on my way back from overseas after having spoken at a surrogacy conference overseas). In part this is because the NSW Act largely copied the provisions of the Qld Act. In part, because there are many NSW/Qld surrogacy arrangements where one side lives in NSW and the other in Qld. In part, Qld IVF clinics have frequently provided surrogacy services to NSW patients.
1. Going Overseas
I don’t intend to focus too much on that in this paper. However, no discussion of the Australian legal landscape regarding surrogacy can be touched without a discussion of going overseas, particularly when some research is that the number of people going overseas to the number of people undertaking surrogacy in Australia is approximately 92-8.
In making a baby there are quite simply three elements sperm, egg and a woman to carry the child who has a viable uterus. Many Australians go overseas for egg donation, even without any reference to surrogacy. Many when undertaking surrogacy also require the assistance of an egg donor.
Under matching Commonwealth, State and ACT law[2], commonly called The Human Cloning Act there is a penalty of up to 15 years imprisonment to in essence pay a donor anything other than reasonable out of pocket expenses.
Those who go overseas from New South Wales or Queensland don’t run the gauntlet of the Commonwealth legislation in this respect because it only applies within the Commonwealth and presumably, territorial seas. The Commonwealth legislation on point does not apply overseas. There is no long arm law. Queensland and New South Wales, however, have such a long arm law.
Table 1
|
Going Overseas for Egg donation
|
|||
|
State/Territory
|
Human Cloning Act
|
Human Tissue Act
|
Long arm
|
|
Commonwealth
|
s.21, 24 Prohibition of Human Cloning for Reproduction Act 2002 Not relevant: Research Involving Human Embryos Act 2002
|
N/A
|
N/A
|
|
Qld
|
s.17 Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003
|
s.42 Transplantation and Anatomy Act 1979
|
s.12 Criminal Code 1899
|
|
NSW
|
s.16 Human Cloning for Reproduction and other Prohibited Practices Act 2003
|
s.32 Human Tissue Act 1983
|
s.10C Crimes Act 1900
|
Therefore, while intended parents worry about going overseas for surrogacy, they may inadvertently be committing a much more serious offence to do with egg donation.
Because there isn’t a specific extra-territorial law concerning egg donation, it is possible to go overseas for egg donation and not commit an offence in Queensland or New South Wales if it is handled carefully. Indeed, one of the features of the Surrogacy Act in Queensland and New South Wales is that medical treatment does not have to occur in Queensland and New South Wales respectively. In theory at least it can occur anywhere else in the world. There can be some practical difficulties with that (such as whether the doctor overseas would be recognised in Australia as an expert) as well as other obvious issues so as to avoid trafficking – but it is possible (as I have done) to obtain parentage orders in each of Queensland and New South Wales where there is a foreign egg donor and IVF treatment occurs offshore.
Table 2
|
Going Overseas for Commercial Surrogacy- Prohibitions
|
||||
|
State/Territory
|
O/s prohibited?
|
Law
|
Long arm
|
Penalty
|
|
Commonwealth
|
No
|
N/A
|
||
|
QLD
|
Yes- commercial
|
s.56 (entering), 57 (paying) Surrogacy Act 2010
|
s. 54 Surrogacy Act 2010, s.12 Criminal Code 1899
|
3 years, 100 penalty units
|
|
NSW
|
Yes- commercial
|
s. 8,9 Surrogacy Act 2010
|
s.11 Surrogacy Act 2010, s.10C Crimes Act 1900, reg 11 Surrogacy Regulations 2011
|
2,500 penalty units for corporation, 1,000 penalty units or 2 years for natural person
|
It is not an offence to go overseas for commercial surrogacy in Victoria, Tasmania and the Northern Territory. It is clearly an offence to do so in the ACT for anyone ordinarily resident there and it may be an offence for someone resident in Western Australia or South Australia.
Spot the Differences Going Overseas
The offences in Queensland and New South Wales about undertaking commercial surrogacy overseas are different, and the differences are substantial. In Queensland, one offence is for a person ordinarily resident in Queensland to enter into or offer to enter into the commercial surrogacy arrangement. New South Wales has the same offence in effect, for someone who is ordinarily resident domiciled in New South Wales.
1. Therefore the first point of difference is that the New South Wales offence purports to extend to someone who is domiciled in New South Wales even if they don’t live in New South Wales. Someone who might be born in New South Wales and therefore has a domicile of origin in New South Wales would at first blush be caught up in the offence. Of course, if there is a conflict between domicile of origin and domicile of choice, then domicile of choice trumps domicile of origin.
The problem comes when you have someone who was born in New South Wales but now does not have a domicile of choice i.e. they live a life of a nomad.
You may think that this kind of case may never happen but I will give you two illustrations where it is possible to occur:
· The clients who wanted to undertake surrogacy where the husband was a locum doctor moving from state to state within Australia. He would spend a few months at Hospital A in New South Wales then move to Hospital B in Western Australia then to Hospital C in the Northern Territory etc. He clearly would not be ordinarily resident in New South Wales and nor would he be domiciled in New South Wales except as to domicile of origin which means that he is potentially at risk of committing an offence. He may also find it difficult to access domestic surrogacy, due to residential requirements.
· The family law client some years ago who figured out that he ought not to be resident of any country, so that he could avoid paying income tax. He had been spectacularly successful. As part of his planning he moved residence (and country) sooner than every three months. Of course not a good lifestyle to have when you have a child but he had a very good lifestyle and if he were born in New South Wales then he would have a domicile of origin in New South Wales potentially putting him at risk if he wished to undertake surrogacy overseas.
2. The second difference is that there is a separate offence in Queensland under Section 57 of the Surrogacy Act 2010 (Qld) of paying consideration under a commercial surrogacy arrangement. This is particularly significant because it means the offence has not occurred on the signing but each offence has occurred repeatedly during the course of the surrogacy arrangement. Typically with an overseas commercial surrogacy arrangement there will be a series of payments, the first payment occurring on signing and the last signing occurring when the baby is handed over. Each of these would constitute a separate offence. This means that residents of Queensland have to stay a lot longer outside Queensland to avoid committing an offence, as opposed to residents of NSW.
3. The third difference – time limits. In New South Wales there is no time limit for prosecution. Under Section 58 of the Surrogacy Act 2010 (NSW) prosecutors may decide to prosecute on a summary basis. It is clear that the offence is offensive entering into is an indictable offence. Offences under the Surrogacy Act are not listed in Schedule 1 of the Criminal Procedure Act 1986 (NSW). Section 5(1) of the Criminal Procedure Act 1986 provides:
“An offence must be dealt with on indictment unless it is an offence that under this or any other act is permitted or required to be dealt with summarily”.
Because offences under the Surrogacy Act are not summary offences (even if they are dealt with on a summary basis) the 6 month time limit that applies to summary offences under section 179 of the Criminal Procedure Act 1986 (NSW) does not apply to offences under the Surrogacy Act. There is no time limit.
By contrast, an offence under the Surrogacy Act 2010 (Qld) is a simple offence. Therefore there is a time limit of 1 year before commencement of proceedings s52 Justice Act (Qld). For those going overseas, the limitation period is in effect longer. A typical surrogacy arrangement takes between 18 months and 4 years. The time limit for the signing of the commercial surrogacy agreement will have well and truly passed by the time that the child returns to Australia, but the time limit for each of the offences for making payment is unlikely to have passed until at least a year after the child returns to Australia.
2. Domestic Surrogacy
Prevention is better than cure. It is essential to plan everything with a surrogacy matter down to the nth degree. Most importantly, it is essential that the surrogacy arrangement is respectful of all parties, namely:
· The intended parents;
· The surrogate and her partner;
· Any known donor and her partner;
· But above all the child.
The practice of surrogacy is not the practice of baby farming but will result, hopefully in the birth of a child. We as lawyers can choose whether we wish to create an arrangement that endures for the benefit of the child or whether we wish on our conscience to have an arrangement that is a disaster zone and therefore creates a disastrous life for the child for potentially the next 40 years.
As a family lawyer, I often ask clients when they come into talk about the children, about what my clients consider to be long term issues concerning the children. Sometimes the focus is on next month or even next year. When dealing with very young children, some clients are prescient enough to talk about the conclusion of primary school or even the completion of high school and the child turning 18. Of course, all those clients have it wrong, because the joy and burden of parenting continues well after a child turns 18 and will, subject to the death of the child before the parent or the loss of the parent’s marbles due to dementia or Alzheimer’s or similar, continue until the death of the parent.
I say to my clients that they have to assume that the surrogacy arrangement is merely the beginning of the process, not the end and that their planning must be an assumption that they will have an ongoing relationship of some kind with the surrogate for, say, the next 40 years.
It is much better as family lawyers that we hold the job as planners or architects and map out the arrangement. Sometimes we have clients who know exactly where they want to go and want to get there the fastest and it might be said that our job is of pilot. Too often, even with failed surrogacy arrangements, but particularly with family law, our job is that of janitors who are called upon to clean up the mess.
3. Checklist for Domestic Surrogacy
The checklist is a very useful tool to ensure that there has been compliance with the statute, but it is only part of the story. It is essential that in handling a surrogacy matter you do so in a holistic manner, in combination with not only your clients but the other professionals involved such as:
· The relevant counsellors;
· The relevant doctors (which may be a fertility doctor and an obstetrician and some other specialist, such as a haematologist or psychiatrist);
· Your opposite number
Table 3
|
Checklist of Legislative Requirements in Queensland
|
||
|
No.
|
Legislative Requirement
|
Section No.
|
|
1.
|
The application for a parentage order ordinarily ought to be made not less than 28 days and not more than 6 months after the child’s birth.
|
21(1)(a)
|
|
2.
|
On the date of filing the application, the child must have lived with the Applicants for at least 28 consecutive days.
|
22(2)(b)(i)
|
|
3.
|
At the time of filing the child was residing with the applicants.
|
22(2)(b)(ii)
|
|
4.
|
At the time of hearing the child is residing with the applicants.
|
22(2)(b)(iii)
|
|
5.
|
The applicants have made the application jointly, being a couple application.
|
22(2)(c),
21(3),(4) Also note Sec 9(2)&(21) CF Acts Interpretation Act 1954, Sec 32DA(6) Schedule 1 “Spouse” As to the issue of who is a spouse or couple I will refer below to the unreported case of P&P (2012)
|
|
6.
|
There is evidence of a medical or social need for the surrogacy arrangement.
|
22(2)(d), 14
|
|
7.
|
The surrogacy arrangement was made after the parties obtained independent legal advice about the surrogacy arrangement and its implications.
|
22(2)(e)(i)
|
|
8.
|
Each of the parties obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications.
|
22(2)(e)(ii), 19
|
|
9.
|
The surrogacy arrangement was made with the consent of the birth mother and the applicants.
|
22(2)(e)(iii)
|
|
10.
|
The surrogacy arrangement was made before the child was conceived.
|
22(2)(e)(iv)
|
|
11.
|
The surrogacy arrangement is in writing and signed by the birth mother and the applicants.
|
22(2)(e)(v)
|
|
12.
|
The surrogacy arrangement is not a commercial surrogacy arrangement.
|
22(2)(e)(vi), 10, 11
|
|
13.
|
The birth mother and the birth mother’s spouse were at least 25 years when the surrogacy arrangement was made.
|
22(2)(f)
|
|
14.
|
The joint applicants were when the surrogacy arrangement was made at least 25 years.
|
22(2)(g)(i)
|
|
15.
|
At the time of hearing of the application the applicants are resident in Queensland.
|
22(2)(g)(ii)
|
|
16
|
All parties consent to the making of the parentage order at the time of the hearing.
|
22(2)(h)
|
|
17.
|
A Surrogacy Guidance Report under section 32 supports the making of the proposed order
|
22(2)(i), 19
|
|
18.
|
The proposed order will be for the wellbeing, and in the best interests, of the child, both through childhood and for the rest of her life.
|
6(1), 22(2)(a)
|
|
19.
|
There has been compliance with the documents to be produced to the court.
|
25
|
Table 4
|
Compliance with documents required by s.25 Surrogacy Act 2010 (Qld)
|
|
|
Subsection
|
Document
|
|
25(1)(a)
|
A copy of the child’s birth certificate
|
|
25(1)(b)
|
A copy of the surrogacy arrangement
|
|
25(1)(c)
|
An affidavit under s.26 of each of the applicants
|
|
25(1)(d)
|
An affidavit under s.27 by the birth mother, Aroha Rei Shuttleworth
|
|
25(1)(e)
|
An affidavit under s.28 by the birth mother’s spouse
|
|
25(1)(f)
|
An affidavit under s.29 by another birth parent
|
|
25(1)(g)
|
An affidavit under s.30 by the lawyer who gave legal advice to the applicants before the surrogacy arrangement was made
|
|
25(1)(g)
|
An affidavit under section 30 sworn by the lawyer who gave legal advice to the birth mother
|
|
s.25(1)(h)
|
An affidavit under section 31 sworn by the appropriately qualified counsellor who gave counselling to the birth mother and the joint applicants before the surrogacy arrangement was made
|
|
s.25(1)(i)
|
An affidavit sworn by the independent appropriately qualified counsellor who, for the purpose of the application, interviewed the parties; and verified the surrogacy guidance report under section 32 prepared by the counsellor
|
|
s.25(1)(j)
|
For each applicant who is a woman, an affidavit from an appropriately qualified medical practitioner verifying a report prepared by the medical practitioner as to why the applicant is an eligible woman.
|
4. Some Tricky Areas
I just want to touch on six tricky areas:
1. Single or couple
2. Strict compliance;
3. Medical or social need;
4. Conception;
5. Payment to the Surrogate
6. Appearance at Court
4.1 Single or couple
Neither Queensland nor New South Wales discriminate about who can undertake surrogacy, whether based on relationship status or sexuality. You can be married, heterosexual, de facto couple, same sex couple or single intended parents. Similarly, the surrogate can be married, heterosexual, heterosexual de facto couple, same sex couple or single.
Section 21 requires ordinarily though that if there is a couple then the couple must undertake the surrogacy arrangement together. This shows the difference between married and de facto couples. A de facto relationship ends when the parties separate. A marriage does not end until the parties divorce.
In P & P (2012) the intended parents were married. They and the wife’s parents (the wife’s mother to be the surrogate) had undertaken a total of 8 hours counselling. Independent legal advice had been given to each side. The surrogacy arrangement had been drafted. Just before it was to be signed, the intended father said that he was not undertaking a surrogacy arrangement, he did not wish to be a father, he did not wish to be in the marriage anymore and he was going home to mother – and did.
The intended mother therefore had a problem. Her mother was aged 50 the upper limit for treatment. If she and her husband were still considered a “couple” then would she be able to proceed with the surrogacy arrangement alone?
Under the regime of both the Surrogacy Act in Queensland and New South Wales there is not a pre-approval process by a state regulator (as there is in Victoria or Western Australia). Treatment could be legally provided to the intended mother to enable the surrogacy to proceed, provided that there was a surrogacy arrangement in place – but there was no guarantee that an order could be made. The intended mother lived at home with her parents. They had the same surnames. The child would therefore have the right surname but the mother and her brother would be shown as siblings of the child rather than mother and uncle respectively.
The mother could therefore decide to commence treatment or in the alternative wait 16 months for the divorce to take effect in which case there was a real likelihood that her mother would not get pregnant.
The mother chose treatment over getting divorced. Her mother became pregnant. The child was conceived and born.
Judge Dick QC found that “couple” did not include a married couple where the relationship had broken down irretrievably – and therefore the intended mother could proceed with treatment. In the alternative her Honour stated that it was a matter that could be dispensed with under section 23 and that both conditions namely that there are exceptional circumstances (because there was a real risk the grandmother would not become pregnant) and that the dispensation was for the wellbeing and the best interests of the child.
4.2 Strict Compliance
Section 25 states:
“The following documents must be produced to the court”
There isn’t any basis on the court to dispense with the various documents. P & P is an illustration of what can go wrong when a document is unable to be produced to the court. In that case, the original counsellor refused to swear an affidavit verifying her report. She had prepared a very short one page report saying that counselling had finished. Despite my and my colleague’s best efforts we could not get her to swear the affidavit. She disapproved of the surrogacy arrangement and she particularly disapproved that my clients and their daughter had gone to another fertility clinic. When we attended before Judge Dick there was an affidavit by me setting out the extraordinary difficulties we had with the counsellor. Her Honour said simply:
“Parliament said must, Mr Page. Must means must”
The matter was then adjourned for a period of 2 weeks to enable the counsellor to swear an affidavit that I forwarded to her, along with a subpoena. It was made plain to her that if she failed to swear the affidavit she would be called upon to give evidence and if that step were required, her Honour would report the counsellor to her professional association.
The counsellor then swore an affidavit – but in doing so said that the counselling was incomplete!
When the matter returned before her Honour, her Honour stated that the requirement for counselling to be undertaken was that it be undertaken but that it did not need to be completed. Happily the parentage order was made.
As a result of my experience in that case, I now insist that once counselling has been undertaken all legal advice provided by the relevant lawyers that the affidavits of the counsellor and the lawyers are then sworn (and not waiting until the application is made). Therefore even if a child isn’t conceived at least the affidavits are obtained and the risk of failure through non co-operation, death or disability is avoided.
4.3 Medical or Social Need
If you have a single male client or a gay couple you only have to establish medical needs. With the exception of some transgender men in Australia, men can’t carry babies. Section 14 sets out the requirements for medical need:
(1) “For an application for a parentage order—
(a) if there is 1 intended parent under the surrogacy arrangement—there is a medical or social need for the surrogacy arrangement if the intended parent is a man or an eligible woman; or
(b) if there are 2 intended parents under the surrogacy arrangement—there is a medical or social need for the surrogacy arrangement if the intended parents are—
(i) a man and an eligible woman; or
(ii) 2 men; or
(iii) 2 eligible women.
(2) An eligible woman is a woman who—
(a) is unable to conceive; or
(b) if able to conceive—
(i) is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth; or
(ii) either—
(A) is unlikely to survive a pregnancy or birth; or
(B) is likely to have her health significantly affected by a pregnancy or birth; or
(iii) is likely to conceive—
(A) a child affected by a genetic condition or disorder, the cause of which is attributable to the woman; or
(B) a child who is unlikely to survive a pregnancy or birth; or
(C) a child whose health is likely to be significantly affected by a pregnancy or birth. “
The best description of the word “likely” is contained in a full court of the Federal Court proceedings in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42FLR 331 in which there is a long discussion of the word “likely” for which the shorthand version is that it means real possibility. In other words it doesn’t need to be any more probable than not but there is a real possibility of the thing happening.
4.4 Conception
As seen in the checklist under Section 22(2)(e)(iv) the surrogacy arrangement must be made “before the child was conceived”.
It is common with IVF that the embryos might be created days, months or years before the surrogacy arrangement was signed. In LWV & Ano v LMH [2012] QC hC 206, Judge ClareSC in a world first precedent said that conception was the act of pregnancy, not the act of fertilisation. Therefore assuming that the parties signed the surrogacy arrangement and then subsequently the surrogate becomes pregnant, there is compliance with the legislation.
The link to the case is here.[3] The case can’t be found in Auslii.
4.5 Payment to the Surrogate
It is not a commercial surrogacy arrangement if the only payments that are made are the birth mother’s surrogacy costs. These are set out in Section 11.
“(1) A birth mother’s surrogacy costs are the birth mother’s reasonable costs associated with any of the following matters—
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
(2) Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs—
(a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);
Example of a reasonable medical cost for paragraph
(a)— a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including—
(i) the cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;
(e) a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;
(f) the value of the birth mother’s actual lost earnings because of leave taken—
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.
Examples of other reasonable costs for paragraph (g)—
travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court”
The key to section 11 is that subsection 1 is the one that sets out the criteria and the key there is what are reasonable. Subsection 2, although a shopping list, is merely that a list of examples and not of the matters contained under (1) necessarily.
An example of an unusual birth mother’s surrogacy costs
I acted for a woman who wished to be a surrogate. She ran her own business which was as a dog walker. This entailed, not walking behind the dogs, but being pulled by them across the hills of Brisbane on roller skates. My client took the view that during the course of the surrogacy she wanted to employ a locum. The solicitor, for the intended parents, formed the view that this was not within Section 11(2)(f) or the related New South Wales provision (as it was an interstate matter).
It might be noted at this point that if you have interstate matters they must comply with the legislation as to the expenses of the surrogate in both places or offences might be committed about commercial surrogacy in one or both places.
In my view I was not going to have a pregnant woman being hauled by a bunch of dogs on roller-skates across the hills and dales of Brisbane and no-one in their right mind would suggest that that happen. It was reasonable in my view that she employ a locum, or she would lose her business, therefore it was a reasonable cost associated with the pregnancy and therefore within section 11(1)(b) and the equivalent New South Wales provision.
4.6 Appearance at Court
Judges are greatly helped if both sides are legally represented. Judges have expressed concern to me about the possible power imbalance between the surrogate and her partner on the one hand and the intended parents on the other. They want to make sure that no-one is being exploited, whether the intended parents, the surrogate and her partner or the child.
In Queensland there is an appearance which is before a Children’s Court Judge at District Court level in a closed court. Originally I would not take the baby to court. I now make sure my clients take the baby to court. The judges are delighted to make orders with one judge describing the appearance, on a Monday morning “What a wonderful way to start the week”. To undertake a happy surrogacy journey is a world away from the pain of the day to day work of the District and Childrens Courts.
Usually about 2 business days before court I provide the court with written submissions. On the morning of court I obtain a 1 page affidavit from the intended parents saying that they live in Queensland and continue to have the care of the child. Usually court goes like clockwork and once we get on we are out of there quickly. It is common for judges not to have undertaken surrogacy matters before and sometimes they need to be educated about the process through written and/or oral submissions.
5. NEW SOUTH WALES
Table 5
|
New South Wales Checklist
|
||
|
Number
|
Legislative requirement
|
Section
|
|
1.
|
The application for a parentage order ordinarily ought to be made not less than 30 days and not more than 6 months after the child’s birth.
|
16(1)
|
|
2.
|
At the time of hearing the application, the child is living with the plaintiffs.
|
33
|
|
3.
|
The plaintiffs were a couple at the time of entering the surrogacy arrangement.
|
25(1)(a)
|
|
4.
|
The application has been made jointly, by the plaintiffs as they are a couple.
|
14(2)
|
|
5.
|
There is evidence of a medical or social need for the surrogacy arrangement.
|
30
|
|
6.
|
The surrogacy arrangement was made after the parties obtained independent legal advice about the surrogacy arrangement and its implications.
|
36
|
|
7.
|
Each of the parties obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications
|
35(1)
|
|
8.
|
The surrogacy arrangement is a preconception surrogacy arrangement.
|
5(1)(a) & Sec 24
|
|
9.
|
The surrogacy arrangement must be in the form of an agreement in writing and signed by the birth mother, the birth mother’s partner and the plaintiffs.
|
34
|
|
10.
|
The surrogacy arrangement is altruistic.
|
23
|
|
11.
|
The birth mother and the birth mother’s spouse were at least 25 years when the surrogacy arrangement was made
|
27(1)
|
|
12.
|
The joint plaintiffs were when the surrogacy arrangement was made at least 18 years.
|
28 & 29
|
|
13.
|
At the time of hearing of the application the Plaintiffs are resident in New South Wales.
|
32
|
|
14.
|
All affected parties consent to the making of the parentage order at the time of the hearing.
|
31
|
|
15.
|
An independent counsellor’s report under section 17 supports the making of the proposed order.
|
17(1)
|
|
16.
|
The birth mother and her partner have had relinquishment counselling
|
35(2)
|
|
17.
|
The proposed order will be for the wellbeing, and in the best interests, of the child.
|
22
|
|
18.
|
The child is under the age of 18 years of age at the time the application is made. Given his age and maturity it is not appropriate to take his wishes into account.
|
26
|
|
19.
|
Information has been provided for inclusion in the Central Register.
|
37
|
|
20.
|
Child’s birth has been registered.
|
38
|
5.1 Single or couple
The Surrogacy Act 2010 (NSW) doesn’t discriminate. The intended parents can be a married couple, hetrosexual defacto couple, same sex couple or single. There isn’t the equivalent of section 21 of the Queensland Act (as to who is a couple) in the New South Wales Act.
5.2 Strict Compliance
There isn’t the requirement under Section 25 of the Queensland Act for listed documents to be filed. In my view the following documents should be filed:
Table 6
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New South Wales Documents
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Number
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Document
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1.
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Summons;
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2.
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Draft order;
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3.
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Affidavit of one intended parent;
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4.
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Affidavit of other intended parent;
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5.
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Single or joint affidavit of the surrogate and their partner;
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6.
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Affidavit of plaintiff’s solicitor;
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7.
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Affidavit of defendant’s solicitor;
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8.
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Initial counsellor’s report;
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9.
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Independent counsellor’s report;
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10.
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Relinquishment counselling report;
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11.
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Affidavit as to medical need;
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12.
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Affidavit of identity including birth certificate
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5.3 Medical or Social Need
Section 30 of the Surrogacy Act 2010 NSW is the equivalent of section 14 of the Queensland Act as to medical need and eligible woman:
“ (1) The Court must be satisfied that there is a medical or social need for the surrogacy arrangement.
(a) there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman, or
(ii) 2 men, or
(iii) 2 eligible women.
(a) is unable to conceive a child on medical grounds, or
(b) is likely to be unable, on medical grounds, to carry a pregnancy or to give birth, or
(c) is unlikely to survive a pregnancy or birth, or is likely to have her health significantly affected by a pregnancy or birth, or
if she were to conceive a child:
(i) is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or
(ii) is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy or birth.
5.4 Conception
The New South Wales Act requires that there be a pre-conception surrogacy arrangement but then doesn’t define what is conception – Section 5(1). However Section 5(4) refers to a variation to a pre-conception surrogacy arrangement:
“that is made after a woman who agrees to become pregnant or try to become pregnant under the arrangement becomes pregnant is considered to be a part of the pre-conception surrogacy arrangement”.
There doesn’t seem to be the same problem as existed in Queensland before LWV v LMH.
In any event I have had a number of orders made in the Supreme Court where a frozen embryo created before the surrogacy arrangement was used.
I have cited a number of times in submissions to the court the decision in LWV v LMH, without any difficulty being struck.
5.5 Payment to Surrogate
Section 7 of the Surrogacy Act sets out the birth mother’s surrogacy costs. The same approach in essence is taken as in Queensland:
“(1) For the purposes of this Act, a “birth mother’s surrogacy costs” are the birth mother’s reasonable costs associated with any of the following matters:
(a) becoming or trying to become pregnant,
(b) a pregnancy or a birth,
(2) The reasonable costs associated with becoming or trying to become pregnant include any reasonable medical, travel or accommodation costs associated with becoming or trying to become pregnant.
(3) The reasonable costs associated with a pregnancy or birth include the following:
(a) any reasonable medical costs associated with the pregnancy or birth (both pre-natal and post-natal),
(b) any reasonable travel or accommodation costs associated with the pregnancy or birth,
(c) any premium paid for health, disability or life insurance that would not have been obtained by the birth mother, had the surrogacy arrangement not been entered into,
(d) any reasonable costs, including reasonable medical costs, incurred in respect of a child (being the child of the surrogacy arrangement),
(e) the cost of reimbursing the birth mother for a loss of earnings as a result of unpaid leave taken by her, but only for the following periods:
(i) a period of not more than 2 months during which the birth happened or was expected to happen,
(ii) any other period during the pregnancy when the birth mother was unable to work on medical grounds related to pregnancy or birth.
(4) The reasonable costs associated with entering into and giving effect to a surrogacy arrangement include the following:
(a) the reasonable costs associated with the birth mother and the birth mother’s partner (if any) receiving counselling in relation to the surrogacy arrangement (whether before or after entry into the arrangement),
(b) the reasonable costs associated with the birth mother and the birth mother’s partner (if any) receiving legal advice in relation to the surrogacy arrangement or a parentage order relating to the surrogacy arrangement,
(c) the reasonable costs associated with the birth mother and the birth mother’s partner (if any) being a party to proceedings in relation to such a parentage order, including reasonable travel and accommodation costs.
(5) A cost is reasonable only if:
(a) the cost is actually incurred, and
(b) the amount of the cost can be verified by receipts or other documentation.
(6) In this section:
“medical costs” does not include any costs that are recoverable under Medicare or any health insurance or other scheme”.
“medical costs” does not include any costs that are recoverable under Medicare or any health insurance or other scheme”.
I say, in essence, as I mentioned before if you have an interstate matter you have to make sure that there will be compliance with the legislation in both states to ensure that the surrogacy arrangement is an altruistic one and that the parties (and therefore potentially everyone else associated) have not committed an offence in either jurisdiction in entering into a commercial surrogacy arrangement.
In my first Queensland/New South Wales matter I had to have two clerks compare the relevant provisions of the legislation namely section 7 of the New South Wales Act and section 11 of the Queensland Act to discover that in substance they were essentially the same.
Nevertheless you will have to go through this exercise yourself with each interstate matter.
As it is a requirement of the NSW Act that verification is needed, the surrogacy arrangement should contain specific references to this.
5.6 Appearance at Court
Typically an appearance is not required. The papers can be lodged with the Supreme Court and the matter dealt with in chambers in the adoption list. This process usually takes about 3 weeks, although if the court is delayed can take up to 9 weeks.
It is possible to request an appearance before the court. I did one of these last year for 2 reasons:
(a) It got on quicker; and
(b) The benefits of the appearance.
The downside of course was for the client, that it cost more.
The upside is that going to court to have a parentage order made is an uplifting experience for all concerned but particularly the intended parents when the imprimatur of the State has been given to the intended parents that they are recognised for all purposes as the parents.
If one remembers that the purpose of surrogacy is to have a baby and to be recognised at law as the parent, to go before a judge and be told by the judge in approving terms that you are the parent of the child is an extraordinarily impounding and enriching experience.
I would encourage you or any clients who need to obtain an order in the Supreme Court to have an appearance. In one matter in which I have appeared, we were taken into the judge’s chambers, cameras were allowed and the various parties were allowed to wear his Honour’s wig. It was relaxed, joyful, empowering, uplifting and above all enriching to the parties who had undertaken surrogacy.
5.7 Who does the Counselling?
Unhelpfully the Surrogacy Act 2010 (NSW) is unclear as to who undertakes the counselling. You need to check carefully the surrogacy regulation 2011 in particular regulations 6 and 7. The counsellor who undertakes the initial counselling is different from the person who undertakes the independent assessment report post birth. The counsellor who undertakes the relinquishing counselling of the surrogate and her partner may, in my view, be the same as the pre-signing counsellor and it is preferable if they are the same. Reports from counsellors are from surrogates and their partners are that if they have to endure three sets of counsellors on the way through it tends to make their eyes and heads spin much as, I suppose, when one becomes a patient in a casualty ward at hospital and you repeat the same story over and over again to different health professionals. To have only two counsellors on the way through makes it a considerably easier process for the surrogate and her partner.
6. Who’s a Parent?
Generally, the Status of Children Act in each of New South Wales and Queensland (and elsewhere) is quite clear. The woman who gave birth is the mother and her partner is either the father or the other parent. A parentage order is therefore necessary to transfer parentage. The problem with that is that if you have a single surrogate, it is possible that the only parent is not the surrogate, but the intended parents. For contrasting positions on this:
· Mason and Mason [2009] FamCA 484 – where Ryan J took the preliminary view that who is and who is not a parent is determined by the status of children legislation, not the Family Law Act, as the status of children legislation and the Family Law Act together form a scheme:
· Groth and Banks [2013] FamCA 430 – where Cronin J held that the Family Law Act overrode the Victorian Status of Children Act and in a donor situation to a single woman the known sperm donor was the father. His Honour held that the category of who was parent under the Family Law Act as determined on a case by case basis, and that base was determined by both biology and intention.
I for one in matters seeing parentage orders under the Surrogacy Act, whether Queensland, New South Wales or elsewhere certainly rely on the traditional view of who is a parent, by reliance on Status of Children legislation.
This matter was highlighted particular in S v B; O v D[2014] NSWC 1533. The Summons in the Supreme Court originally sought a transfer of parentage only from the surrogate to the intended mother. The intended father was already named on the birth certificate as the father. Of course, unless a Groth and Banks argument were to succeed, the intended father would not be the father for the purposes of a parentage order application until after an order was made. Before an order is made the only person who could be the father would be the male partner of the surrogate. There were two parentage order applications – one of which the birth was registered in New South Wales and the other in Victoria.
White J held:
“In neither case was the birth registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act of NSW or Victoria. The man who was irrefutably resumed to be the father of the child did not join in the application. The man named as the father of the child on the birth registration statement was not the man recognised by law at the time of the registration to be the father of the child. It only becomes the father of the child on the making of a parentage order (or an adoption order if that be necessary)”.
His Honour went onto say:
“The difficulty in both cases was that the husband of the birth/surrogate mother was not prepared to complete a birth registration statement that named him as the father of the child, notwithstanding that until a parentage order were made under the Surrogacy Act (or an adoption order made if that were required), he was irributably presumed to be the child’s father.”
The solicitor for the plaintiffs advised that she provided legal advice to the parties that the birth mother (i.e. the surrogate mother) should be recorded on the birth certificate as the child’s mother and that the intended father should be named on the birth certificate as the child’s father. She advised that in both cases the husband of the birth mother did not wish to be named on the birth certificate as the child’s father. She stated:-
“As the husband of the surrogate mother did not wish to be recorded on the birth certificate, as was the intention by the plaintiffs to apply for a parentage order with the consent of the defendants and as there was no penalty for registering the second plaintiff as father, or no specific exclusion not to be registered, the advice given by me was for the second plaintiff to be recorded on the birth certificate as father. (In each case the second plaintiff was the intended father)”.
“The Solicitors for the Plaintiffs submitted that it was in the best interests of each child from the outset that the intended fathers be registered as the children’s foster us fathers. Have their name on the birth certificate as father, assisted in the process of having the child’s name on the Medicare Card of the intending father soon after the birth of the child. The children live with their intended parents very soon after birth. If there have been any post-birth complications for which the father’s consent to medical treatment might have been required, having the intended father’s name on the birth certificate could have avoided complications”.
His Honour went onto say:
“The pre-condition in s38 to the making of a parentage order is not met. Despite that pre-condition not having been met, the parentage order can be made if I’m satisfied that exceptional circumstances justify the making of the Order. (Surrogacy Act s18). The guiding principle in administering the act is that the best interests of the child be paramount ……… The phrase “exceptional circumstances” is used in a wide variety of legislation. The phrase is to be construed in the context in which it appears in having regard to the purposes of the legislation. In its ordinary sense circumstances can be exceptional if they are out of the ordinary. Sometimes the expression “exceptional” is used as a synonym for “special” …….. I am satisfied in the present case that there are exceptional circumstances that justify ignoring the non-satisfaction of the pre-condition in s38. I think it must be unusual out of the ordinary for parties to be advised by a solicitor that they need not comply with the requirements of the law. That is what the solicitor’s advice amounted to in this case. No doubt the advice was well-meaning, but it was wrong.
The solicitor said that it was intended that the Plaintiffs (the intended parents) would apply for a parentage order with the Defendants’ (the surrogate mother and her husband) consent. But the application initially made was only for the transfer of the mother’s parentage. If that had been the only order the child would be without a father. The incorrect details in the birth certificate would not withstand scrutiny if the child’s parentage were an issue. I infer that the reason that the intended fathers in the present case did not initially seek a parentage order for the transfer of the parentage of the children for the partners of the surrogate/birth mothers to them was that they considered that having been recorded on the birth certificate as the children’s fathers, they would have that status and nothing more would need to be done. Whilst the registration of the children’s fathers gave rise to a presumption that they had that status, the presumption could readily be rebutted with potentially irreversible consequences, for example, if one of the intended fathers died and the question was whether his estate should pass to his child on intestacy.”
There have been subsequent decisions involving the same solicitor where the court has allowed that issue to be dispensed with.
7. Transformative Effect
The making of a parentage order is of transformative effect in the life of a child. In BLH and HM v SJW and MW [2010] QDC 439, Irwin DCJ summarised the legislation in Queensland on a parentage order application and the benefits and risks to the child from the order being made or not being made.
Australia is a signatory to the International Convention on the Rights of the Child [1991] ATS 4. Any construction of the statute should be consistent within Australia’s international obligations: Teoh’s case[1995] HCA 20 (1995) 183 CLR 273 at [26] per Mason CJ and Deane J.
Article 8 of the Convention provides:
(1) “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interferences.
(2) Where a child is illegally deprived of some or all of the elements of his or her identity states parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.”
There have been a number of English cases that have considered Article 8 of the Convention. They have done this in considering whether or not to make surrogacy parental orders under section 54 of the Human Fertilisation Embryology Act 2008(UK). In A v P (Surrogacy: parental order: death of applicant)[2011] EWHC1738 (Fam), [2012] 2FLR 145, Theis J stated after having referred to Article 8 that:
“The concept of identity includes the legal recognition of relationships between children and parents.”
In Re X (a child) (Surrogacy: time limit) [2014] EWHC3135(Fam), Munby P stated at [54]:
“Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parent. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to a practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, and, maybe in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (adoption: Non-Patrial) [1998] INLR 424, 429, referred to as ‘the psychological relationship of parent and child with all its far-reaching manifestations and consequences.’ Moreover these consequences are lifelong and, for all practical purposes, irreversible…”
8. Cherishing the Surrogate
According to IVF doctors there is about a 1 in 10,000 chance that the surrogate will die during the pregnancy or child birth. One surrogate has died, with twins, in Canberra and another surrogate in late 2015 died in Idaho, also pregnant with twins.
There is currently about a 6% chance (or in rough terms 1 in 16) that if one embryo is implanted twins will be conceived. In the US, by comparison the rate is much higher, about 1 in 11 or 12% or just under 1 in 8. If the surrogate carries twins, there is a high chance that the pregnancy will be complicated, as opposed to a single embryo transfer and a 60 plus % chance that the twins will be born prematurely and will therefore be behind their peers all their lives. There is a high chance of complications with pregnancy in childbirth.
If you can say to your clients in anyway to have a single embryo transfer, which is in accordance with the current standards of IVF doctors, do so.
It is preferable in my view that the intended parents pay for private cover for the surrogate, and if they are able to obtain private health insurance. Whilst coverage is not guaranteed, it is preferable if not essential that the surrogate have adequate life insurance and income protection insurance – to be paid for by the intended parents. Because of coverage issues, my view is that the intended parents and surrogate should approach a reputable life insurance agent who has experience in surrogacy matters so that there is the greatest chance of adequate and appropriate insurance being obtained, without exclusions.
It is unfortunate that one provision of the Surrogacy Act 2010(Qld) that is not in the Surrogacy Act 2010 (NSW) namely section 16 which provides:-
“(1) This section applies to a surrogacy arrangement despite anything that the parties to the arrangement may have agreed, whether or not in writing;
(2) A birth mother has the same rights to manage her pregnancy and birth as any other pregnant woman.”
I am insistent that in every surrogacy matter that I have (whether it be in Queensland, NSW or other domestic arrangement such as Victoria, South Australia, ACT) that a clause to that effect is contained in the surrogacy arrangement. I cannot tell you how empowering it is for the surrogate to see that in writing. That clause says that quite simply that her life is valued and cherished and that she has control over her body.
9. Acting Collaboratively
It is imperative in undertaking surrogacy that a collaborative approach is taken – both with the lawyer on the other side and with any health professionals or counsellors involved. We are not seeking to litigate a matter to death, but involved in the joyful process of creating a child. We as lawyers have obligations to our clients and other duties, and we cannot shirk those. To the extent possible consistent with our duties, the process should be as collaborative and co-operative as possible, because after all we are involved in the process of creating a child. It is possible to create war-like conditions for this child for the next 40 years or to ensure that this child knows where they come from and has a happy healthy upbringing.
I certainly prefer the latter.
© Stephen Page
Harrington Family Lawyers
18 February 2016
[1] Stephen Page is a partner of Harrington Family Lawyers Brisbane. He was admitted in 1987 and has been an accredited family law specialist since 1996. He is one of two international representatives on the Artificial Reproductive Treatment Committee of the American Bar Association, a fellow of the International Academy of Matrimonial Lawyers and the first international fellow of the American Academy of Assisted Reproductive Treatment Attorneys (AAARTA). He is the author of the Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au
