South Australian LGBT law inquiry
Monday, July 06, 2015
Marriage equality is not the be all and end all, unfortunately, for the need to remove discrimination in the law so that there is no longer, in the words of Human Rights Commissioner Tim Wilson “state sanctioned discrimination” against LGBTIQ people.
Currently South Australia is reviewing its laws, to remove LGBTIQ discrimination.
Here is my submission to the inquiry, which I made today:
How South Australia’s family formation laws need to change
I am a lawyer who specialises in family law and fertility law. I have acted for clients from our eight States and Territories, as well as at last count 18 countries overseas. My clients have included clients from South Australia and the Northern Territory.
My clients from South Australia and the Northern Territory have been:
· Married couples
· Heterosexual de facto couples
· Same sex couples
The Human Rights Commissioner, Tim Wilson, recently stated that there needs to be an end to State sanctioned discrimination against LGBTI people, including, in South Australia under the Adoption Act 1988 (SA), Assisted Reproductive Treatment Act 1988(SA) and the Families Relationships Act 1975 (SA). The recent report by the Commissioner sets out a good template for reform in South Australia to remove discrimination.
Although the Commissioner identified other areas that are in need of reform in South Australia, such as the removal of gay panic defence, I will focus only on the issue of family formation.
Discrimination under the three Acts should end now. None of my clients who are seeking to adopt, have fertility treatment or undertake surrogacy would do so if they didn’t have to. Many research reports have demonstrated that children growing up in same sex households turn out the same as children growing up in opposite sex households. And yet, all three Acts discriminate.
Adoption Act 1988
I have lost count of the number of times that my clients have told me that they would have preferred to have adopted a child, as apparently there are so many children in need, but given that the barriers to adoption were so high, they have chosen to undertake surrogacy instead.
The Act discriminates so that only married and heterosexual de facto couples are eligible- by ss. 4 and 12. Singles and same sex couples are therefore not eligible.
Under our international obligations, one would have thought that the appropriate test for adoption would be to have the outcome that was in the best interests of the child, irrespective of the sexuality or relationship status of the intended parents, consistent with the requirements of the International Convention on the Rights of the Child.
Why is it thought appropriate that gay and lesbian couples can be foster carers but not be eligible to adopt?
Chief Judge Pascoe, head of the Federal Circuit Court of Australia, the court that undertakes most of the nation’s family law work, said on 5 March 2015, in evidence (endorsed by Chief Justice Bryant, head of the Family Court of Australia, our nation’s other court dealing with family law), to an informal surrogacy inquiry held by the House of Representatives Social Policy and Legal Affairs Committee:
“I wanted to make the point that I think what a child is entitled to is loving parents. The fact that people are heterosexual does not necessarily make them good parents. As we saw in the baby Gammy case, that was to all intents and purposes a heterosexual couple but it would be difficult to say that the man in that relationship was a suitable parent.
Part of the problem for me is that you do not have to sit in family law for long to see that there are both good and bad heterosexual parents. The real issue is: are these people who will love, protect and care for the child? I think it is really important that we do not focus on issues like the sexuality of intending parents but that we focus on the rights and the protection of the child, and also the rights, care and protection of the birth mother.”
How do interstate laws compare?
Queensland, the Northern Territory, and Victoria also discriminate. New South Wales, the ACT, Tasmania and Western Australia do not.
Family Relationships Act 1975
The aim of any surrogacy arrangement, as many of my clients tell me, is that they are not only blessed by a baby at the end of the formal process, but that they are recognised as the parents.
While it is possible to undertake surrogacy in South Australia without the need for ART, and obtaining an order from the Youth Court, in reality it is necessary to both access ART and also to obtain an order from the Youth Court so that the commissioning parents can be recognised as parents as a matter of law.
The only people who can obtain an order from the Youth Court must be married or living in a heterosexual de facto relationship: s.10HA(2)(iii). Commissioning parents who are in a same sex relationship or are single are not eligible.
If those in same sex relationships or who are single wish to pursue surrogacy, they either have to move interstate or overseas, or undertake surrogacy overseas while living in South Australia.
The reality is that people are desperate to have children. The desire to reproduce is the most basic of instincts. This desire is felt whether the intended parent is heterosexual, gay, lesbian, in a couple relationship or married. To tell a person that they are banned from having a child under the law is one of the most painful statements that I have had to make as a lawyer, but I have had to do so with intended parents who are single, gay or lesbian from South Australia.
The immediate response that I am asked after saying that the law prevents them from accessing surrogacy in South Australia is along the lines of- where can I/we become parent/s?
For those who argue that these people should just accept their lot in life, and move on and accept that they will not be parents, there are two simple answers:
· Reality is otherwise. By turning on their phone or tablet, those who want to have children can in less than a second have millions of results brought before them showing them how and where to become parents.
· The law should not discriminate.
The Act does not only discriminate about who is eligible to become parents, but also does not recognise in s.10HB that a surrogate might be in a lesbian relationship: s.10HB(1) as to definition of “birth father”; s.10HB(8)(d). If so, then her partner will be a parent- a matter not taken up in that section, and worthy of rectification.
The Act also requires that fertility treatment must be undertaken in South Australia. Why this is so has not been explained, but in any event, means that intended parents cannot avoid the discriminatory strictures of the ART Act: s.10HA(2)(viii)(A), 10HB(2)(c).
What is the effect of the discrimination?
Quite simply those who cannot access surrogacy in South Australia will do so elsewhere. They will either up and move, and go to a friendlier jurisdiction, such as Victoria; or they will remain in South Australia and access surrogacy overseas. I should know this: this is what intended parents who have consulted me have chosen to do. “Chosen” is not the right verb. They feel that they have been “forced” by the laws to go elsewhere.
At a time when the spotlight has been on the possible impact on surrogates in developing countries, and children born from those surrogacy arrangements, the settings under the Family Relationships Act, by being discriminatory, positively encourage intended parents to go overseas. This should be the last setting of the Act.
Why is it appropriate that the effect of the legislation is for people to go overseas to developing countries, where there is the possibility of exploitation of all involved: donor, donor’s partner, intended parents, surrogate, her partner, and above all, the child?
It seems extraordinary from an economic viewpoint that the effect of the current laws is that valuable IVF work is being exported overseas, rather than being undertaken at home. IVF clinics in South Australia are some of the best in the world. Why can’t they be allowed to undertake this work?
How does the Family Relationships Actcompare with interstate?
The Act is the most discriminatory of all legislation across the country concerning who can access surrogacy:
· Queensland, New South Wales and Victoria do not discriminate. Irrespective of who the intended parents are by relationship status or sexuality, they can access surrogacy.
· The ACT does not discriminate on the basis of sexuality, but requires both the surrogate to be in a couple relationship and the intended parents tobe in a couple relationship.
· Tasmania does not discriminate on the basis of sexuality or relationship status, but has a requirement that ordinarily all parties to the surrogacy arrangement must come from that State.
· Western Australia alone also discriminates on the basis of sexuality. Intended parents there must be married, heterosexual de facto couples, lesbian couples or single women. Single men and gay couples are not eligible.
Assisted Reproductive Treatment Act 1988
Before any intended parents leap through the hoops of the Family Relationships Act, they must traverse the Assisted Reproductive Treatment Act- legislation which licenses the State’s IVF doctors.
This legislation puts in place licensing requirements, especially under s.9(c)(i) and (ii), and read with 9(c)(v), and regulation 8(1) of the Assisted Reproductive Treatment Regulations 2010, that have the effect of allowing fertility treatment to be provided to:
· Married couples
· Heterosexual de facto couples
· Lesbian couples
· Single women
but not to:
· Gay couples
· Single men.
IVF doctors have reported to me that they have been confused about whether they can treat lesbian couples or single women in cases of “social” infertility or whether there needs to be “medical” infertility. If the latter, then treatment may not be provided. The women might be fertile but need assistance from IVF doctors in supplying sperm. IVF clinics typically are able to access sperm either from local donors, or as often occurs from overseas donors, especially from the United States. Reading s.9(1)(c)(i) alone would seem to indicate that medical infertility is required, however, when read with s.9(1)(c)(v) and reg. 8(1), social infertility appears to be all that is needed.
How does the ART Act compare with interstate?
The ART Act is alone in its discriminatory nature. No other State or Territory discriminates.
Equal Opportunity Act 1984
The definition of “service”, consistent with the scheme under the ART Act, specifically excludes IVF and artificial insemination, thereby sanctioning the discrimination found in the ART Act.
Impact in the Northern Territory
The only clinic providing IVF services in the NT is staffed by South Australian licensed doctors. The effect of the ART Act is felt not just in South Australia, but also in the Northern Territory.
I am available to provide further assistance to the r