South Australian surrogacy review

Wednesday, July 04, 2018

The outgoing Labor government in South Australia commissioned a review of that State’s surrogacy laws. That review has been continued by the incoming Liberal government. I have made both oral and written submissions. Here are my written submissions:

14 June 2018

Ms Sarah Moulds

Senior Project Officer

South Australia Law Reform Institute

By email: salri@adelaide.edu.au

Dear Sarah

Review of South Australian Surrogacy Laws

I set out below my submission as to the review. I am happy to assist in any way if called upon for the purposes of the review.

1. Who am I?

I am a fertility and family lawyer based in Brisbane. I was admitted in 1987 as a solicitor of the Supreme Court of Queensland and 2013 as a Barrister and Solicitor of the Supreme Court of South Australia.

My first surrogacy case was in 1988. The case was similar to that of Re Evelyn, but never went to Court.

I have acted for intended parents, surrogates, donors and donor recipients from all over Australia. I am the only lawyer in Australia who has appeared in court in four jurisdictions to obtain parentage orders:

· Queensland

· New South Wales

· Victoria

· South Australia

I have acted for many intended parents and several surrogates and their partners from South Australia. The intended parents contemplated local, interstate or overseas surrogacy.

I have advised clients from overseas about surrogacy law and practice. Typically one or both of the parties is an Australian citizen. At last count there were clients from 28 countries overseas being:

Australia
1	Australian Capital Territory
2	New South Wales
3	Northern Territory
4	Queensland
5	South Australia
6	Tasmania
7	Victoria
8	Western Australia
Overseas
America
1	Brazil
2	Canada
3	USA

Europe
4	Belgium
5	Denmark
6	France
7	Germany
8	Ireland
9	Netherlands
10	Russia
11	Switzerland
12	UK

Middle East
13	Iran
14	Israel
15	UAE

Asia
16	China
17	Hong Kong
18	India
19	Indonesia
20	Japan
21	Malaysia
22	Philippines
23	Singapore
24	Thailand
Oceania
25	New Caledonia
26	New Zealand
27	Papua New Guinea
28	Solomon Islands

I have written and presented widely about surrogacy law, including for:

· Law Society of South Australia

· Queensland Law Society

· Hunter Valley Family Law Practitioners Association

· Family Law Practitioners Association of Western Australia

· Family Law Section, Law Council of Australia

· Fertility Society of Australia

· Fertility Nurses Association of Australasia

· Royal Australian and New Zealand College of Obstetricians and Gynaecologists

· American Society of Reproductive Medicine

· International Academy of Family Lawyers

· Academy of Adoption and Assisted Reproduction Attorneys

· American Bar Association

· International Bar Association

I was the co-author and principal advocate of policy 116b of the American Bar Association passed in February 2016 as to the proposed nature or possible Hague Convention on Private International Law Concerning Children including International Surrogacy Arrangements. The Association has 400,000 members throughout the world. Of course, I am an Australian, not an American.

I have presented or lectured about surrogacy in the UK, US, South Africa, Hong Kong and Australia.

I advise about Australian surrogacy law on a daily basis. I am familiar with the surrogacy and parentage laws of every State and Territory, including South Australia. In 2017 my firm under my direction advised 116 new clients who were singles or couples in relation to surrogacy and a further 5 singles or couples solely in relation to donor issues. I have also advised several IVF clinics in several States, in including 2 clinics in South Australia, about regulatory issues. You may have access to more up to date figures than I do, but as best I can calculate, in an average year the number of Australians undertaking surrogacy currently represents:

· 40 surrogacy journeys a year in Australia; and

· 250 overseas surrogacy journeys a year undertaken by Australians.

In the 2016 – 2017 year the number of overseas surrogacy journeys had dropped to 142. Whether this is a one off figure or indicative of a trend of more domestic surrogacy journeys, it’s too early to tell.

I have acted in ground breaking cases, for example:

· LWV v LMH (2012), which was a worldwide precedent as to what constitutes conception.

· P & P (2012) – which established who was a couple and counselling requirements in Queensland.

· Re Grosvenor (2017) and Sigley & Sigley (2018) – in which US Surrogacy Orders were registered by the Family Court of Australia, and with Re Halvard (2016) set the benchmarking as to what is commercial surrogacy.

· As an expert witness (2016) in a UK case which established how UK laws discriminate against single people undertaking surrogacy.

· The first interstate surrogacy cases in each of Queensland and New South Wales (2012).

I am currently a member of the following amongst others:

· ANZPATH

· Fellow of the International Academy of Family Lawyers, including a member of its Surrogacy/Parentage committee and of its LGBT committee

· Founder and Director of the LGBT Family Law Institute Australia

· Fellow of the Academy of Adoption and Assisted Reproduction Attorneys

· International Representative on the ART Committee of the American Bar Association

· Founding member of the Asia Pacific Rainbow Families Forum

· Member of the Fertility Society of Australia

· Member of the National Surrogacy and Donor Committee of City Fertility Clinic

· Family Law Practitioners Association of Queensland

· Queensland Law Society

· Family Law Section, Law Council of Australia.

The views expressed in this submission are mine alone and do not necessarily represent the views of the various groups of which I am a member.

I am on the panel of independent children’s lawyers in Queensland and regularly act as an independent children’s lawyer.

2. Human Rights Framework

It is essential that there is appropriate regulation of surrogacy in South Australia within an appropriate human rights framework.

Both ART and surrogacy generally have a myriad of complex moral and ethical issues. It is essential in my view that there is and continues to be appropriate regulation. Surrogacy, whilst usually involving ART, is not a medical process, but a legal process of transfer of parentage from the surrogate (and her partner if any) to the intended parent or parents.

As part of that regulation, regulation ought to ensure that the human rights of all involved are protected, the most relevant being:

· The donor and donor’s partner

· Any donor conceived individuals (whether as children or adults)

· The surrogate and her partner

· The intended parents

· Any child conceived from a surrogacy arrangement.

3. Egg donation issues

There is already regulation in place concerning the donor and donor’s partner and any donor conceived individuals, the relevant legislation or licensing conditions being:

· Prohibition of Human Cloning for Reproduction Act 2002 (Cth) – especially section 21 as to payment to donors) and section 24 (mirror State and Territory provisions).

· National Health and Medical Research Council, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2017)

· Assisted Reproductive Treatment Act 1988(SA), especially section 4A as to welfare of the child

· Prohibition of Human Cloning for Reproduction Act 2003 (SA), especially section 16 (payment to donors)

· Transplantation and Anatomy Act 1983 (SA), especially section 35 (sale or supply of tissue).

The scope of your inquiry does not concern review of this other legislation. For many, if not most, intended parents undertaking surrogacy, there is a need to access the services of an egg donor. The numbers of children born overseas through surrogacy demonstrate the essential truth that Australians undertake surrogacy overseas at a far greater rate than they do within Australia. One of the reasons that they do so is because of a lack of local surrogates (which I will address below) similarly there is a great shortage of egg donors. Australian intended parents travel the globe to become parents, such as to:

· Argentina

· Greece

· Spain

· South Africa

· USA

is in large part because of the legal settings that we have in place about the payment of donors. As you are already aware, I have called elsewhere for the reform of the law in that area, but that issue is outside the scope of your inquiry.

However to understand the scale of that issue I note that in March 2016 I attended at Cape Fertility Clinic in Cape Town. The medical director advised me that that clinic alone was seeing 3 to 5 Australian couples per business day. Due to South African law concerning surrogacy, these couples were not accessing surrogacy in South Africa, but egg donation alone. That one clinic is seeing close to 960 Australian couples a year.

4. Strengths of surrogacy regulation

A number of strengths, in my view, of how we regulate surrogacy in Australia in all its different varieties are that:

1. There is a requirement for independent legal advice before the parties enter into the surrogacy arrangement.

2. There is a requirement for the parties to have independent counselling and screening with a report from the counselling prior to entering into the surrogacy arrangement.

3. With the exception of Victoria and the Australian Capital Territory, there is a requirement for there to be a written surrogacy arrangement. The inquiry undertaken by the Tasmanian Parliament in 2011 rejected the format of the Surrogacy Bill 2011 (Tas) on that point initially when it proposed that a surrogacy arrangement could be oral. Having advised clients about domestic surrogacy arrangements in all 8 States and Territories, I would strongly endorse the need for the surrogacy arrangement to be written.

4. In addition to any regulatory requirements, the common practice of IVF clinics is to have a separate ethics committee to consider whether treatment should be given in any proposed surrogacy journey. Risks are carefully assessed, such as:

· Whether surrogacy is necessary. After all there is approximately a 1 in 10,000 chance that a woman carrying a child may die during pregnancy or childbirth. If another woman is asked to be a surrogate when it is unnecessary she is potentially putting her life unnecessarily at risk.

· Psychosocial issues

· Medical issues

· Legal and regulatory issues

5. That ultimately there is judicial oversight. I cannot state how important it is to have this step. From a procedural point of view it is necessary for the recognition of the parent/child relationship by virtue of the provisions of the Family Relationships Act, section 60HB of the Family Law Act 1975 (Cth), regulation 12CAA of the Family Law Regulations 1984 (Cth) and section 8 of the Australian Citizenship Act 2007 (Cth). From a substantive point of view, in my view it is absolutely essential to have judicial oversight. In the rare event that something goes wrong, my experience of courts in Queensland, Victoria and South Australia is that judges are particularly sensitive to ensure that in the volatile circumstances that all parties are treated as sensitively as possible and, as one would expect, the best interests of the child are the paramount concern.

There have been calls for Federal judges, such as the Federal Circuit Court, to be responsible for orders concerning surrogacy. Until the Commonwealth reaches an agreement with the States about legislating for surrogacy and provides resources for that to occur, it will remain the obligation of State Courts, such as the Youth Court, to deal with.

5. Non Discrimination

I note that you recommended in an earlier report that there be a removal of discrimination against LGBT couples and singles intending to access ART and surrogacy. Regrettably the amendments passed last year by Parliament to the Assisted Reproductive Treatment Act 1988 (SA) and the Family Relationships Act 1975 (SA) while removing discrimination against same sex couples did not remove discrimination against single people undertaking surrogacy. One must wonder whether this is a breach of section 22 of the Sex Discrimination Act 1984 (Cth) and whether therefore a challenge as seen in McBain v State of Victoria [2000] FCA 1009 and Pearce v South Australia Health Commission (1996) 66 SASR 486 will survive a challenge. I have acted for many women who are single and want to become parents. Some of them need a sperm donor. Some of them need a sperm and an egg donor. Some of them, who are for example survivors of cancer, need a sperm donor, an egg donor and a surrogate. God and nature are not always kind and fair. It seems cruel to me that a single man or a single woman who wants to become a parent under the current legal settings must either:

· Move interstate, to undertake surrogacy there. I note that if an intended parent moves interstate, they are unlikely to come back; or

· More likely, due to the greater availability of surrogates overseas, go overseas.

A system of law which seems to encourage people to go overseas to undertake surrogacy when the aim of the exercise is to protect the human rights of all concerned (including potential surrogates) is foolish and counterproductive.

If the aim is to ensure that surrogates are not taken advantage of, then regulatory steps to encourage intended parents to undertake surrogacy in South Australia should be the legal settings, rather than settings which have the effect of forcing intended parents to go overseas (including to developing countries which may have few or any legal protection).

South Australia is out of step in respect of single people undertaking surrogacy with most other Australian jurisdictions:

· In Queensland the Surrogacy Act 2010 (Qld) does not discriminate there have been a number of orders made in favour of single intended parents.

· Similarly the Surrogacy Act 2010 (NSW) does not discriminate. The Parentage Act 2004 (ACT) does not discriminate on sexuality. It was the first legislation regulating surrogacy in Australia. The Parentage Act requires the surrogate to be part of a couple and the intended parents to be a couple. There is no apparent rationale as to why both are required.

· The Assisted Reproductive Treatment Act 2008(Vic) and the Status of Children Act 1974(Vic) do not discriminate. Single people can undertake surrogacy.

· The Surrogacy Act 2012 (Tas) does not discriminate as to whether someone is single or as to sexuality, but it does require all parties at the commencement to reside in Tasmania – although this is a requirement that can subsequently be dispensed with.

· Western Australia does discriminate under its Human Reproductive Technology Act 1991 (WA) and Surrogacy Act 2008 (WA). As would be well known to you, Western Australia recognises that there is an issue with discrimination, it being one of the topics to be tackled in the current surrogacy review there.

6. Who wants to be a Surrogate?

The typical surrogate is a woman who:

· Is over 25

· Has had all of her own children

· Likes being pregnant

· Has had problem free pregnancies and quick, problem free child births

· Above all, sees it as her mission in life, and for some, a mission from God, to give the gift of life to others. This is the case for surrogates I have acted for or dealt with from Australia, New Zealand, Canada and the United States.

I have acted in cases in Queensland and New South Wales where:

· The surrogate has not had children before; or

· The surrogacy journey is traditional, not gestational.

With careful screening, these surrogacy journeys can work very well, although our immediate instincts with either is that they will be problematic journeys. Part of the key in my view to successful surrogacy journeys is that there is careful screening. This is done in three ways:

· Careful counselling and screening by the pre-signing counsellor;

· Independent, adequate legal advice, matched with a thoroughly drawn surrogacy arrangement that identifies relevant issues if something goes wrong;

· Careful attention by an IVF clinic’s ethics committee. I insist in all my surrogacy arrangements that the obligations of each party are clearly set out. Surrogate clients feel empowered that there is a clause in the surrogacy arrangement akin to section 16 of the Surrogacy Act 2010(Qld) and taken up in section 10H of the Family Relationships (Surrogacy) Amendment Bill 2017 (SA) that the surrogate has the same rights to manage her pregnancy and childbirth as any other woman. I can’t emphasise how important this statement of principle (which is also seen in the Tasmanian legislation) be part of the statute law of South Australia.

In my view it is vital that this clear statement (and the clearly enunciated guiding principles and objects of the Queensland Act, including as to openness and honesty) become part of the statute law of South Australia.

The view that surrogates are oppressed is not consistent with what I have observed in Australia, Canada, New Zealand or the US. Surrogates in these countries at least appear to be modern, assertive women.

7. Digital Disruption

Whether we like it or not, we are in the midst of the digital revolution. The genie is out of the bottle. Digital disruption is not isolated to cab licences and Uber. Intended parents as a matter of course go on line, often from their mobile phone, to find out how they can be parents through surrogacy. Sometimes the information that they obtain is accurate. At other times the information is widely inaccurate or misleading. I applaud the continuing efforts of VARTA to provide information to members of the community. I have lost count of the number of South Australian clients who have a paucity of information about their options of family formation.

In May I spoke at the ART Conference of the American Bar Association. The chair of the ART Committee of the American Bar Association, Mr Rich Vaughn stated to that conference that the number of surrogacy agencies in California alone are 90. It is likely that there are several hundred surrogacy agencies in the United States. They are all competing for business and most of them have an active web presence.

To go back to the numbers in an ordinary year there are approximately 40 a year born through surrogacy in Australia and 250 born overseas although in 2016 – 17 that figure was 142. These numbers demonstrate what is seen every day practice – a continued frustration by intended parents about there not being available egg donors or surrogates. In the process of preparing this submission, I have been unable to find current figures as to the number of surrogacy orders made by the Youth Court of South Australia each year. In previous reports the number of orders has averaged 1 per year, with one year there having been 2 and another year there being 0.

South Australia has a population of about 1.7 million people. The Australian population is approximately 24.7 million. In other words, approximately 7% of Australians reside in South Australia. One might expect, based on the national numbers that if surrogacy is being entered into in the same rate in South Australia as it is in the rest of the country, then:

· In years when 250 children are born overseas through surrogacy, 18 of those are coming from South Australia.

· In 2016-2017 when there were 142 children born overseas, there should be 10 of those from South Australia.

· Of the 40 children born a year domestically and subject to domestic parentage orders, there should be 3. Instead there have been 0, 1 or 2. I note that AWOTE in November 2017, (according to the Tasmanian Treasury) in South Australia was $75,000. By comparison Western Australia the corresponding figure was $91,000 a year. It may be that because the income in South Australia is proportionately lower than other States that the amount of surrogacy being undertaken is proportionately lower.

The cost of surrogacy varies dramatically, and one might think, it might encourage intended parents to stay at home and not go abroad. The figures I estimate from asking my clients, reviewing documents (such as gestational carrier agreements) and talking to industry figures are:

· The cost of surrogacy in Queensland, New South Wales, Victoria and South Australia is $30,000 to $70,000.

· The cost of surrogacy for Australians going to the United States is between $145,000 to $300,000 (although one agency has a VIP program where the cost is about $400,000).

· The cost of surrogacy in Canada is between $80,000 to $120,000 – although I would suggest $120,000 as a ball park figure.

· A large proportion of the cost in Australia is the cost of IVF. Due to arcane Medicare rules, the cost per IVF cycle can vary widely. If intended parents have the benefit of Medicare rebates, the cost per cycle is about $5,000 per cycle. If they do not, it is $17,000 per cycle. Couples may endure two or three cycles on their domestic surrogacy journey.

The temptation is to produce a perfect form of stringent regulation, the aim of which is that no one is exploited, human rights are protected and that adequate safeguards are in place. A model of stringent (as opposed to adequate) regulation will inevitably fail, because it does not take into account human behaviour including the desire to become a parent, and the digital world in which we live.

Sir David Attenborough said in 1990:

“If you watch animals objectively for any length of time, you are driven to the conclusion that their main aim in life is to pass on their genes to the next generation. Most do so directly, by breeding. In the few examples that don’t do so by design, they do it indirectly, by helping a relative with whom they share a great number of their genes. And in as much as the legacy that human beings pass on to the next generation is not only genetic but to a unique degree cultural, we do the same. So animals and ourselves, to continue the line, will endure all kinds of hardship, overcome all kinds of difficulties, and eventually the next generation appears.”

Sir David in my view summarises what intended parents will do in the desperate bid to become parents.

The challenges are:

· Consumers who want to be parents will increasingly adopt solutions for them, not solutions imposed by regulators. The rise of Uber and the demise of taxi licencing and the rise of the use of photo voltaic cells generating electricity at home are both clear parallels of consumerism at play. Consumers will increasingly adopt digital “solutions” and seek information from the web available to them in seconds. If consumers perceive that regulations are too stringent, and don’t strike the right balance – they will go elsewhere. This has already been demonstrated in Western Australia, for example, with its surrogacy regulation where it appears that a far larger number of intended parents go overseas for surrogacy than do so within Western Australia.

· The risk in their doing so is that some go to jurisdictions where there is no or only a minimal human rights framework. The challenge is to ensure that the balance of regulation is such that, with adequate safeguards, that intended parents are encouraged to be parents at home, not abroad.

· The current settings mean that intended parents who go to well-regulated jurisdictions with strong human rights based approaches, such as the United States or Canada are treated the same in Australia as those who go to developing countries, which often lack any protections or regulations.

· Those who had given up on the idea of ever becoming parents, are increasingly aware that they can now become parents – and demanding solutions.

8. General commentary on the profile of those undertaking surrogacy

I do not keep specific figures about the sexuality of my clients. Because of biology, it is not surprising that a large number of those who intend to become parents through surrogacy are gay couples. From my experience it is not a majority. I have seen a small number of single intended parents (primarily men, although some women) seeking to be parents through surrogacy, a small number of lesbian couples seeking to access surrogacy and the occasional transgender intended parent.

One may think that lesbian couples will never access surrogacy because if one woman could not get pregnant then the other can. Although not common, nature is not always so kind. On occasion lesbian couples need to access surrogacy.

Similarly, one might expect with a gay couple that if the sperm of one does not work, then they can become parents using the sperm of the other. On uncommon occasions I have had gay couples who have needed to undertake sperm donation in order to become parents through surrogacy.

The desire to become parents is just as strong with clients who are:

· Heterosexual couples

· Gay couples

· Lesbian couples

· Single; and

· Trans/non-binary.

Similarly the desire to conceive and love a child seems to make little difference as to whether there is a genetic connection between the intended parents and the child.

9. Is money the motivation?

The expenses paid for Australian surrogates varies from case to case, but from my experience has been between $8,000 and $30,000, often in range of $11,000 to $15,000.00. The one case in which my firm acted where the surrogate’s expenses were $30,000 involved a surrogate who ceased work for medical reasons. The intended parents had not obtained income protection for her. If that insurance had been obtained, the cost would have been much lower. The court in making the parentage order was aware of the amount.

Canada has an altruistic model of surrogacy. A typical Canadian surrogate will be reimbursed expenses of up to a cap of CAN$20,000 to CAN$22,000.00. I note that the Canadian dollar is roughly at parity with the Australian dollar.

The US is viewed as typically having a commercial model of surrogacy. However, as was made plain in Re Halvard [2016] FamCA 1051, surrogacy in the US may be within Australian definitions of altruistic surrogacy.

Surrogacy regulation in the US varies from State to State and often is governed by judge made laws. My US colleagues have made plain to me, time and again, that judges there expect certain norms to be met in terms of the gestational carrier agreements – including disclosure on criminal convictions of all concerned, and caps on the amounts that surrogates receive by way of base compensation.

Base compensation varies considerably across the US from as low as US$20,000 in some places to typically US$37,000 to US$42,000 in California. Base compensation in California can be as high as US$60,000.00.

While money is a clear motivation, the message I have received time and again from lawyers, surrogacy agencies and surrogates is that the prime motivator for surrogates is giving the gift of life, not that of money. There is some limited research to this effect also.

Surrogacy agencies in the US avoid would be surrogates who are indigent or in receipt of social security, for obvious risk reasons:

· The would be surrogate is acting out of financial desperation, the wrong motivation; and

· Therefore may be more inclined not to care for the unborn child properly through the pregnancy, or indeed call off the surrogacy.

Surrogates in the US and Canada from my experience are typically usually working or middle class women or have typically have finished high school. Most are married. Some co-habit with male partners. Some are single. Few are lesbian. Some have college degrees and a few have post-graduate qualifications.

The profile of US and Canadian surrogates is a little different in my experience to Australian surrogates: most of whom are working or middle class, most are married, some de facto, some single, a few lesbian. Typically Australian surrogates have finished high school. Some are professionals. One was a chief financial officer, and another a doctor.

A leading US case on surrogacy was that of Johnson v Calvert (1993) 5 Cal.4^th 87 – a decision of a seven member bench of the Supreme Court of California. The case concerned a dispute between the surrogate and the intended parents. The surrogates name was Anna. In the primary judgment, this was stated:

“Anna and some commentators have expressed concern that surrogacy contracts tend to exploit or dehumanize women, especially women of lower economic status. Anna’s objections center around the psychological harm she asserts may result from the gestator’s relinquishing the child of whom she has given birth. Some have also cautioned that the practice of surrogacy may encourage society to view children as commodities, subject to trade at their parents’ will.

We are all too aware that the proper forum for resolution of this issue is the Legislature, where empirical data, largely lacking from this record, can be studied and rules of general applicability developed. However, in light of our responsibilities to decide this case, we have considered as best we can its possible consequences.

We are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward results Anna cites as to demand their invalidation on public policy grounds. Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity and general exploits them by inducing them to accept lower-paid or otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will foster the attitude that children are mere commodities; no evidence is offered to support it. The limited data available seen to reflect an absence of significant adverse effects of surrogacy on all participants…

The argument that a woman cannot knowingly and intelligently agreed to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own gene.”

10. The myth of rich intended parents

While surrogacy is not cheap, it is untrue to assert that the only people who undertake surrogacy are rich.

Most Australian intended parents – whether undertaking surrogacy domestically or internationally – are middle class. They save up or draw down their mortgage, borrow money from the bank, family or friends or access superannuation to undertake surrogacy. Richer Australian intended parents undertake surrogacy through more expensive surrogacy agencies. Those with not so deep pockets so not, and either go to cheaper US surrogacy agencies, to Canada, or to other cheaper destinations, such as the Ukraine.

Due to their ethnicity, Australians may seek to undertake surrogacy in their country of origin. For example, Iranian Australians may do so in Iran, or Greek Australians may do so in Greece.

11. Comparison with interstate models

As you are no doubt well aware, the House of Representatives’ Surrogacy Inquiry in 2016 recommended that there be national non-discriminatory laws as to surrogacy. That report has not been acted upon in any way. Nevertheless, there are plain difficulties with the model of regulation of surrogacy in South Australia and difficulties with interstate arrangements.

Example of George and Mildred

George and Mildred live in London where George has a very successful career in the City. They are unable to conceive children except through surrogacy. George’s sister-in-law, Elizabeth who lives in Brisbane with her husband Phillip offers to be the surrogate. George and Mildred, Elizabeth and Phillip enter into a Queensland Surrogacy Arrangement. They can do this even though George and Mildred do not live at the time of signing in Queensland, because the requirement for jurisdiction in Queensland is that of residence at the time of the making of the order. There is no requirement to reside in Queensland (or for that matter in New South Wales under its legislation) at the time of entering into the arrangement.

In accordance with the ANZICA Counselling Guidelines, counselling has to occur in person prior to entry into the surrogacy arrangement. That counselling occurred. After the birth of the child, George and Mildred move to Queensland. As they are resident in Queensland at the time of the hearing of the application, they are able to and do obtain an order from the Childrens Court of Queensland transferring parentage to them. The Family Relationships Act does not have that flexibility and nor does the Family Relationships (Surrogacy) Amendment Bill 2017 in section 10I (2)(c) and would have prevented a couple such as George and Mildred coming within the regulatory regime of the Act, including ultimately judicial oversight of the process. They would have been denied becoming parents if the surrogate had been living in South Australia – unless they had moved to South Australia at the time of entry into the surrogacy arrangement.

It is likely that if George and Mildred had been unable to access a regulatory regime allowing family surrogacy they would have instead undertaken surrogacy in the United States.

Example of Bill and Ben

Bill and Ben are a couple in South Australia. Despite their best efforts, they have been unable to find a local surrogate. They decide to pursue surrogacy in the United States. Their surrogacy journey is a success. They are recognised by a US court order as the parents. They did not obtain the approval of the relevant Minister under the Family Relationships Act 1975, following the 2005 amendments. It is impossible to obtain that approval in any event because:

· Despite the law being in place for almost 3 years there has never been a finalised State Framework for Altruistic Surrogacy; and

· The relevant changes to the Family Relationship Regulations have never been made.

Because that approval has not been obtained, Bill and Ben cannot obtain an order recognising their parentage in the Youth Court.

They acknowledge that they have been recognised by a court order as the parents. Their child, Jenny has obtained Australian citizenship.

It is uncertain, in light of the decision of Bernieres and Dhopal [2017] FamCAFC 180 that Bill and Ben have a legal parent/child relationship with Jenny under the Family Law Act and therefore for inheritance purposes.

The only options that Bill and Ben have that will formalise their legal parent/child relationship are:

1. Registration of the US Surrogacy Order under section 70G of the Family Law Act 1975 (CTH). This is problematic. It has only occurred in three cases: Re Halvard [2016] FamCA 1051, Re Grosvenor [2017] FamCA 366 and Sigley & Sigley [2018] FamCA 3. In each of those cases the court was concerned – in the exercise of its discretion – about public policy concerning commercial surrogacy and not seeming to endorse parties engaged in breach of the law of the relevant State.

2. Registration under the 1996 Hague Child Protection Convention with the Family Court of Australia. In theory this could occur. However the convention under Article 4 is not concerned with the establishment of parentage but with transfer of parentage. Under Article 22 there is an exception for public policy grounds, and therefore see back to the discussion in Re Halvard and subsequent cases.

There are differences depending on where Bill and Ben underwent their surrogacy in the United States. If they underwent surrogacy in California then those two options are the only two options available to them and to Jenny. California, like many US states, regulates surrogacy by the making of pre-birth orders. These orders recognise the intended parents as the parents of the child typically at 6 months gestation. The effect is that when the child is born then the intended parents are automatically recognised as the parents.

In some jurisdictions, the regulation of surrogacy occurs post birth. This is typically done by a transfer of parentage to one parent and then a second parent adoption in favour of the other parent. If Bill and Ben had gone to Minnesota and Bill was the genetic parent, then this would have occurred:

· Jenny is born.

· A birth certificate issues recognising the surrogate and her husband as the parents of Jenny. As in Australia, a birth certificate is evidence of parentage, but not proof of parentage.

· An order is then made transferring parentage to Bill and terminating the parental relationship between the surrogate and her husband with Jenny. The effect of that order means that under Minnesota law the surrogate and her husband no longer have rights of custody under the 1980 Child Abduction Convention.

· A second birth certificate issues, showing Bill as the parent.

· A second parent adoption order is made in favour of Ben.

· A third birth certificate issues, showing Bill and Ben as the parents.

It is unlikely that the second parent adoption falls within the 1993 Hague Inter-country Adoption Convention.

Because of the definitions of adopted, child and parent under section 4 of the Family Law Act 1975 (Cth), parent two, being Ben, is without doubt a parent under the Family Law Act. It would also therefore appear that parent one (from whom parent two became a parent) namely Bill must also be a parent – although this is untested.

Example of Frida and Benny

Frida and Benny are a couple living in Adelaide. Frida’s sister, Agnetha, who lives in Gawler, offers to be their surrogate. She is prepared to be a traditional surrogate.

It is legal for traditional surrogacy to be undertaken under the Family Relationships Act. However, the Ethics Committee of XYZ IVF Clinic in Adelaide has decided not to facilitate traditional surrogacy because of perceived risks with traditional surrogacy.

Frida and Benny then search for an egg donor but are unable to find one in South Australia. Instead they find Marie, who is a prospective egg donor living in Sydney.

Marie wants to undertake IVF in Sydney, just down the road from where she lives.

Frida and Benny therefore have these choices:

1. If they undertake IVF in New South Wales, as they desire and in accordance with Marie’s wishes, they will be unable to proceed with a surrogacy arrangement in South Australia. Therefore they have to persuade Marie to come to Adelaide for treatment, or find another egg donor, or enter into a New South Wales (or Queensland) surrogacy arrangement on the basis that at the time of the birth and then proposed order concerning the child they are living in New South Wales (or Queensland).

The Family Relationships Act simply does not have the flexibility that the Surrogacy Acts of Queensland, New South Wales or Tasmania have about where IVF may occur.

It may seem at first blush that allowing IVF to occur anywhere allows a free-for-all as to where parties may undertake IVF. In reality, because there is judicial oversight, care still needs to be taken as to which IVF clinic is chosen (if it is overseas) because in Queensland, New South Wales and Tasmania evidence from the doctor ought to be put before the court and therefore the accepted as an expert witness and the report accepted. Failure to accept that expertise or the report will likely mean that a parentage order may not be made.

By contrast if Marie lived in Melbourne, because of similar requirements of the Assisted Reproductive Treatment Act 2008 (Vic) and the Status of Children Act 1974 (Vic), doctors there would not provide treatment. Frida and Benny would be obliged to either fly Marie to South Australia or search for another donor, including overseas.

12. Compensation

In my view, surrogates ought to be properly compensated and should no longer be out of pocket. Surrogates have a real risk of death. They endure all kinds of expenses.

The definition of the expenses that can be paid is currently contained in section 10HA (2a)(i). This provision was amended in 2015, clarifying to a degree the costs of the surrogate that could be paid, following representations by me. In my view, it remains unclear as to what costs of the surrogate can be paid even with the catchall provision in section 10HA (2a)(i)(v) of “reasonable out of pocket expenses incurred by the surrogate mother in respect of the agreement”.

I note that there is some clarification in section 10L of the Family Relationships (Surrogacy) Amendment Bill 2017 (SA).

In my view the definition of what could be included is still unduly prescriptive.

Example of Annemarie

Annemarie was a surrogate in Brisbane. The intended parents lived in Sydney. During the course of her pregnancies Annemarie would suffer backaches. Annemarie sought that she have acupuncture and massages during the course of pregnancy. Each of these was deemed to be a reasonable cost within the relevant section sections of the Surrogacy Act 2010 (NSW) and the Surrogacy Act 2010 (QLD).

It is likely that each of these would be included within the current definitions under the Act if this were a South Australian surrogacy arrangement under section 10 HA (i)(i) [a pregnancy, (including any attempt to become pregnant) that is subject to the agreement] or (v) [reasonable out of pocket expenses incurred by the surrogate mother in respect of the agreement].

Annemarie was a dog walker. She owned her own business. Typically this involved her walking half a dozen or so dogs. Her concern was to ensure that during the period that she was a surrogate that she would be able to employ a locum so that she did not lose her business. In my view she was able to employ a locum because this was a reasonable cost undertaken by her associated with her being pregnant. I did not want to be responsible for my client who typically would be on inline skates being pulled up and down the hills and dales of Brisbane whilst pregnant for someone else.

The solicitor for the intended parents contended that it was not a reasonable expense because it was not allowed under the specific provisions of section 11 (2) of the Surrogacy Act 2010 (Qld) and section 7 (3) of the Surrogacy Act 2010 (NSW). Relevantly section 11 (2)(f) allows the birth mother surrogacy costs to the value of her actual lost earnings because of leave taken for a period of not more than 2 months during which a birth happened or was expected to happen (and the identical provision under section 7(3)(e) of the Surrogacy Act 2010 (NSW)). My view was that the costs were reasonable because:

1. It was not intended for my client to profit by having a locum, but merely ensuring that she was not out of pocket. From that point of view the payments were reasonable.

2. It was reasonable not to have my client being pulled by a bunch of dogs up the hills and dales of Brisbane whilst pregnant.

3. What was under subsection 2 or 3 respectively of both Acts were examples of a clear guidance.

4. The expectation under section 11(2)(f) of the Queensland Act and section 7(3)(e) of the New South Wales Act was that the surrogate was employed. My client was self-employed and therefore that provision did not strictly apply.

5. In any event if needed my client would no doubt be able to obtain a letter from a doctor to say that she was unable to work on medical grounds related to pregnancy for the purposes of section 11(2)(f)(ii) and section 7(3)(e)(ii) respectively.

After having had this carefully explained, the other solicitor agreed.

Subsequently I note that a parentage order was made in the NSW Supreme Court. My understanding is that the court was advised of the existence of the hiring of the locum.

It would be of assistance rather than the drafting of section 10L in the Bill to use the language in the Queensland or New South Wales Acts which are more inclusive and flexible and in turn provide greater to clarity to practitioners, parties and the courts as to what expenses are allowed and what are not.

There are a myriad of different rules varying from State to State as to what is or what is not commercial surrogacy. In my view, following the decisions of the Family Court, there is much more of a blurred line as to what is commercial surrogacy in Australia (which I’ll detail below). In Victoria, for example, it is a criminal offence to pay life insurance for the surrogate – even though by becoming pregnant and giving birth she has a risk of death. The approach in Western Australia is so restrictive that expenses which are deemed reasonable (such as acupuncture or massages as seen in Marie’s case would render the surrogacy arrangement a surrogacy arrangement that is for reward and therefore a criminal offence in Western Australia.

Interstate matters (where the surrogate and intended parents live in separate States) need to comply with the criminal law of both States.

Therefore whichever State has the lowest common denominator of expenses in the surrogacy arrangement determines what expenses can be included and what cannot be included.

This hunt for the lowest common denominator and regulatory compliance adds cost to clients’ bills, reduces flexibility and prevents at times such basic things as life insurance, massages and acupuncture from being obtained.

13. Recognition of Interstate Parentage Orders

There is no specific recognition in the Births, Deaths and Marriages Registration Act 1996 (SA) of interstate parentage orders.

To invoke the alteration of the birth register for a child born in South Australia, there is a requirement under section 22A that there is a notice under section 10HD of the Family Relationships Act. This begs the question as to why such a notice is needed. There is a saving to the taxpayer in Queensland by the relevant parties filling out a form to register the change in details and also to provide a sealed copy of the order. Rather than impose a duty upon public servants, this imposes the burden on those who wish the change to be made, namely the parents.

Be that as it may, section 22A does not provide for the recognition of interstate parentage orders. Section 22A (5) deals with a child whose birth is registered in another State, but does not cover the situation of an interstate parentage order where the birth occurs in South Australia. One may think that there is the ability to resolve that issue by the use of reciprocal administrative arrangements under section 11 and similar like provisions of interstate legislation. Previous experience (between New South Wales and Victoria) meant that specific legislation was passed in Victoria as it was considered that that provision was inadequate to cover this specific issue.

It is likely that an application to a Magistrates Court under sections 19 and 20 of the Act may resolve in the correction of the register. Given that it is the obligation of South Australia under section 118 of the Commonwealth Constitution to give full faith and credit to the judicial proceedings of every State, why should it be necessary for parents who are recognised by an Interstate parentage Order as the parents and therefore, by virtue of regulation 12CAA of the Family Law Regulations 1984 (Cth) and section 60 HB of the Family Law Act 1975 (Cth) as the parents for all purposes in Australia to have to make an application to the Magistrates Court to ensure that the register is corrected?

Prior to the 2015 amendments, this issue arose for clients of a Victorian colleague where the intended parents obtained a substitute parentage order in Victoria but the child was born in South Australia. It took 4 months to resolve the impasse and meant that the intended parents had to deal with both the Registrar’s of Births, Death and Marriages in South Australia and Victoria. My colleague described the process as a “nightmare”.

The 2015 amendments do not seem to have dealt with this specific issue.

I note that the process of altering the birth register in Queensland for a child born there and the subject of an interstate parentage order typically takes 2-3 days once the form is lodged with the Registrar.

14. Publishing Offence

The idea that it should remain an offence to publish to seek a surrogate or an intended parent seems that the utility of the offence has been outlived by reality. Everyday, anyone in South Australia who wants to undertake surrogacy can open their mobile phone and within a few seconds see an advertisement to undertake surrogacy somewhere else – typically on a commercial basis.

Similarly everyday anyone in South Australia who wants to find a surrogate or an intended parent can go on to a Facebook group and seek to do so.

15. Language

The international term of those who wish to be parents through surrogacy is intended parents. This is commonly used in the courts in the United States and Canada and by colleagues in the United Kingdom. It is also the language of interstate legislation, such as Queensland and New South Wales. The phrase in Western Australia of arranged parents doesn’t give credit to the role of those who wish to be parents.

Similarly archaic language such as substitute parents, as seen for example in Victoria, seems as though their parenting is not real but fake.

Commissioning parentssounds as though they have bought a baby in the same way they might have commissioned a ship or the purchase of a car or a refrigerator. It is in my view somewhat disrespectful of them and of the process, which at its best is magical. These people intend to be the parents, and hopefully with the making of an order, which should be termed a parentage order, become the parents as a matter of law.

16. Withholding Consent

There are two issues about withholding consent. The first is that the surrogates husband or partner is recognised to be just as much a parent under law as the surrogate. Both under the Act and under the Bill, his views are merely taken into account when a court is considering making an order. He does not, unlike the surrogate, have a right of veto. The surrogate and her partner should have equal legal standing. Having acted for a South Australian surrogate and her husband who initially withheld consent, it was somewhat degrading of the husband to explain to them that his position was very much second rate – that his wife had the right to veto but that he did not.

Imagine a circumstance in which a surrogate consented to an order but her estranged partner did not. It is possible that the court in those circumstances could make an order despite the former partner’s objection.

The second issue is that the intent of the legislation is that the woman who has given birth should have the right to decide whether or not she should handover legal responsibility for the child. She should not be pressured or the subject of duress. Unfortunately, as seen in cases such as Lamb & Shaw[2017] FamCA 769, a surrogate has the ability to withhold consent for any reason. There ought to be the ability, as one sometimes sees in adoption legislation to transfer parentage even without the consent of the surrogate and her partner when special circumstances demand it.

The complaint that I have recently heard from UK colleagues is that surrogates there capriciously at times withhold consent causing untold grief to the intended parents and, one must think, failing the best interests of the child.

17. Eligibility

To ensure commonality across Australian States as to regulation, it is urged:

1. Adopt the model seen in New South Wales or Queensland. Eight years of practice with the model demonstrates that in general it works very well, with flexibility and sufficient checks and balances to protect all concerned. My view is that the Queensland legislation is preferable out of the two, but there is little difference between them.

2. Consistent with that, change the definition of eligibility to that seen in New South Wales and Queensland – a model giving greater flexibility than under the Family Relationships Act.

18. Six Month Limitation

The six month limitation period is common across Australia. It was initially legislated under the Parentage Act 2004(ACT). It was copied from UK legislation. Its source was completely arbitrary: the needs of a constituent of a member of the House of Commons.

While intended parents should pursue an application as quickly as possible, greater flexibility should be allowed than currently exists if the intended parents fall outside the six month period, as seen in for example Re X (a child)(Surrogacy: Time Limit) [2014] EWCH 3135 (Fam).

19. The Model for Surrogacy Regulation

Western Australia and Victoria are alone in requiring regulatory approval before the surrogacy arrangement can proceed. The model is that if regulatory approval has been obtained, then the process before the court is straightforward. It is presumed that the regulator got it right.

Having advised many clients in Queensland, New South Wales, Victoria and South Australia about surrogacy, I don’t see that there is anything particularly magical about there being a regulator. The taxpayer has to pay for the regulator. With the regulatory model the intended parents have to obtain the approval of the Ethics Committee of the IVF Clinic as well as obtain the approval of the regulator. Not having a regulator means that they still have to obtain the approval of the Ethics Committee of the IVF Clinic. IVF clinics are very keen to ensure that they don’t impose risk where it is unnecessary. They are very much risk averse. They do not wish to be viewed as risking their licences to operate or risking insurance.

The regulatory model in Western Australia and Victoria has in my belief two flaws:

1. It adds another step which really does not reduce risk to any great degree, but adds delay and a cost burden to the taxpayers which does not exist for taxpayers in the other States.

2. It doesn’t address what happens post birth. It presumes that all will be hunky dory post birth because the regulator got it right. In one case in which I was asked to save a failed surrogacy arrangement, the surrogacy had been approved by the Patient Review Panel in Victoria. Quite clearly, inadequate screening had occurred despite their being a regulator. The parties fell out post-birth. There was no mechanism for post-birth assessment or counselling as there is in Queensland and New South Wales and is there now to a limited degree in South Australia in part because of submissions that I made. When the parties fall out post-birth, it is extremely helpful if there is some counselling or assessment process so that each of the parties know that they have been heard and they can move towards a workable solution with a minimum of acrimony. In my view, the post-birth model as seen in Queensland or New South Wales works well. It is respectful towards the surrogate. In my view there doesn’t need to be the relinquishment counselling as seen in New South Wales, but if it is to occur, then it is best to occur from being given by the counsellor who provide the pre-signing counselling. This is so that the surrogate and her partner only have to deal with two counsellors in the process, rather than three.

20. Role of the Minister

The Act requires that the Minister consider or approve overseas surrogacy arrangements.

I note that the State Framework for Altruistic Surrogacyhas never been published and the relevant regulations have never been proclaimed.

Currently those intended parents in South Australia who wish to undertake surrogacy and are unable to locate a surrogate are likely to go overseas. In light of the decision in Bernieres and Dhopal they have uncertainty about the parent/child legal relationship after they return. This is unfortunate for them, but potentially much worse for the child.

It seems impractical to me as to why the Minister should have this burden. This option was considered by politicians in Israel some years ago but quickly rejected because it was seen as being impractical. There would be an ever mounting pile of information requested as to each surrogacy journey. The Minister, with respect, I presume is not an expert on overseas jurisdictions, surrogacy agencies or IVF clinics. To properly discharge his or her role under the legislation, the Minister would require a burdensome amount of information – and even then may not be satisfied as to whether it is an appropriate jurisdiction, surrogacy agency or IVF clinic.

We do not want a repeat of Baby Gammy. To avoid that repeat, we should be making it easier, not harder, for intended parents to undertake surrogacy at home. The message I have heard loud and clear from over a thousand surrogacy clients is that if possible they would rather do IVF in Australia with all the legal requirements of surrogacy here than to do so overseas.

21. Offences

In my view, the offences as currently set out under the Family Relationships Act are appropriate. The setting in Australia is to stop commercial surrogacy. From that point of view the offences are appropriate because they prevent brokers.

The Bill on the other hand intends to prohibit commercial and other unlawful surrogacy arrangements. What has been seen in every State is that not one person since the changes of about 8 to 10 years ago has been prosecuted with a surrogacy offence.

One wonders why a party who enters into a commercial surrogacy arrangement should be subject to a punishment of 5 years imprisonment. The comparative penalties in the ACT, New South Wales and Queensland for example are:

· ACT – one year imprisonment;

· New South Wales – 2 years imprisonment or $110,000 fine;

· Queensland – 3 years imprisonment or a fine.

I have a concern about a party entering into a non-compliant surrogacy arrangement.

Example of Daisy and Duke

Daisy and Duke live in South Australia. Daisy’s sister Catherine and her husband Luke live in New Zealand. Catherine and Luke are unable to have children. Daisy volunteers to be a surrogate. The process of surrogacy in New Zealand involves extensive checking by the State regulatory authority before entry into any surrogacy arrangement and ultimately a process of Court sanctioned adoption.

To formalise the interfamily arrangement and to:

· satisfy Australian and New Zealand authorities that the parties were not engaging in child trafficking;

· that there was no breach of the 1993 Hague Intercountry Adoption Convention;

· to satisfy the court in New Zealand as to the nature of the arrangement;

· to satisfy the IVF clinic in California that there was a surrogacy arrangement,

the parties enter into a surrogacy arrangement. It is an altruistic surrogacy arrangement.

The arrangement must, of necessity, be non-compliant with South Australian law because:

· the commissioning parents do not live in South Australia;

· IVF was not undertaken in South Australia but in California.

All proceeded to plan. The child was born, travelled with Daisy and Duke, Catherine and Luke to New Zealand. There was no difficulty exiting Australia or entering New Zealand. The New Zealand Court made the order transferring parentage. The court was satisfied making the order was in the best interests of the child.

If clause 10T(2) of the Bill were enacted, then Daisy and Duke would have committed an offence.

There will always be people who seek to undertake traditional surrogacy at home. Traditional surrogacy has been with us since the dawn of time. A copy of the surrogacy arrangement was put before them. After all, it was first described in Genesis. These surrogacy arrangements will be non-compliant. There may be difficulty transferring parentage. Whilst these arrangements should not be encouraged, is it appropriate that the parties commit criminal acts? For an example of such an arrangement, a Tasmanian arrangement, see Lowe and Barry [2011] FamCA 625.

It is perceived in South Australia that if there is an offence in the statute books concerning surrogacy that no offence will be committed by parties by engaging in surrogacy overseas. Clause 10T(1), the entry offence, may well be inadvertently committed by parties who engage in commercial surrogacy overseas.

There is no specific extraterritorial law extending the jurisdiction of South Australia, as seen by contrast in Queensland, New South Wales and the ACT. However, there is section 5G of the Criminal Law Consolidation Act 1935 (SA) which is what is known as a long arm law, i.e. the law reaches out and grabs someone overseas.

In Farnell & Chanbua [2016] FCWA 17, Thackray CJ noted that on its face, Mr and Mrs Farnell may have committed an offence under the Surrogacy Act 2008 (WA) by entering into a surrogacy arrangement that is for reward. Western Australia does not have an extraterritorial provision either. His Honour noted the equivalent to section 5G, which is section 12 of the Criminal Code (WA) was the basis by which they may have committed an offence.

History demonstrates that trying to stop (by criminal sanction) people going overseas for surrogacy does not work. A better approach is that under s.10H of the Act. This targets those seeking to profit, and does not unfairly target either intended parents, surrogates or their partners.

Clause 10U(1) of the Bill may seem to be a rewriting of section 10H(1) of the Act. It is a significant widening. Whilst on its face, clause 10U(1) appears to be substantially the same, why it is a considerable widening is that section 10H(1) refers to surrogacy contractwhereas clause 10U(1) refers to surrogacy arrangement. The difference is substantial. If a solicitor in South Australia negotiates a surrogacy contract currently, then the solicitor commits an offence. Surrogacy arrangements under the Act are not binding. They are not contracts. If clause 10U(1) is enacted, then a solicitor cannot take part in negotiating a surrogacy arrangement for a client.

The United Kingdom has a similar offence. The effect is that solicitors there cannot assist their clients in the drafting or negotiating the terms of surrogacy arrangements. My UK colleagues tell me that what happens instead is that intended parents and surrogates go to Facebook groups and download draft terms from the internet, which is hardly an ideal outcome. It is much better if parties are properly represented and are able to properly put their terms through experienced, independent lawyers acting for them. Clause 10U(1) should not be enacted in its current form.

22. Counsellors

Under the Act, counsellors need to be accredited. The process of accreditation in turn imposes a burden on the Minister (and taxpayer) which is not imposed on Ministers (and taxpayers) interstate. Counsellors in Queensland for example, must comply with objective criteria:

– an ANZICA member;

– a psychiatrist who is a member of the relevant college;

– a psychologist who is a member of the Australian Psychological Society; or

– a social worker who is a member of the Australian Association of Social Workers; and

and have the experience, skills or k knowledge appropriate to prepare the report: s.19 Surrogacy Act 2010 (Qld).

This definition is also:

– more open than that under regulation 4 and therefore more flexible;

– makes it easier for interstate practitioners to provide counselling (which may be easier for the parties if the surrogate lives interstate, for example).

23. Disputes

In my view, there are a number of ways of minimising disputes between intended parents and surrogates:

1. The most effective is to ensure that there is rigorous screening at commencement through counselling, independent legal advice by experienced practitioners and the involvement of the Ethics Committee of the relevant IVF clinic. This is by far the most effective manner. A criticism that I have of the current Act and of the Bill is that the pre-signing counsellor is merely to certify the suitability of the surrogacy arrangement. There is no provision about what is to happen with the report or that there is even a report. So as to ensure that there is transparency, there should be a mandated requirement in legislation that there is an affidavit from that counsellor for the court. The judicial officer will then be fully informed about what the issues were. That step (of requiring an affidavit) will mean that each of the lawyers will need to have a copy of that report (without the legislation needing to say so) as will the IVF clinic. Each significant player in the case, namely the lawyers and the IVF Ethics Committee will be wanting to minimise risk and reading that report. My practice is that my clients do not sign the surrogacy arrangement until the report is provided, and any risk issues in the report have first been addressed.

2. The terms of the surrogacy arrangement ought to be as crystal clear as possible. This doesn’t need to be mandated in legislation.

3. One of the issues that assists from time to time is the liability of the intended parents to pay the surrogate’s costs. Agreements should specify – as a matter of good practice – to pay all the reasonable costs, as say defined in s.11 of the Queensland Act (or whichever legislation applies). To ensure there is not an open ended cheque book, I now specify maximum amounts. I attach the schedule from a recent agreement to illustrate the point.

4. There should be encouragement between the parties to attend counselling with that initial counsellor at intervals during the surrogacy process. The pioneers of surrogacy in Australia, the Canberra Fertility Clinic, adopted a practice of having counselling at 3 months and 6 months gestation and 3 months post birth. This ought not to be mandatory but it would be a wise practice standard to adopt to minimise conflict. I encourage my clients to take part.

5. For ongoing difficulties between the parties, I found that the post birth assessment process in Queensland and New South Wales is very useful. Its prime purpose is to educate the Court that the proposed orders are in the best interests of the child. This assessment ordinarily involves a home visit (although it is not mandatory to do so) and the reports are very thorough. I have found that when there has been conflict between parties except of the most extreme nature, the process of that assessment can greatly reduce that conflict and let them move forward in a workable manner.

As surrogacy becomes more common, the expertise of practitioners working in this area will become greater. They will therefore be able to assist intended parents and surrogates and their partners better and by that process likely reduce the conflict between the parties on those occasions when it arises.

24. State Register/meeting demand

It has now been almost 3 years since legislation was passed to have a State register of surrogates. The aim of the register was a noble one – namely to try and make more surrogates available. I understand that it has not been taken up. I can understand the reticence of prospective surrogates putting their names on a register run by a government and the reluctance of intended parents to contact the government to find out the details of surrogates.

Every day there are in existence now Facebook groups and other social media whereby prospective surrogates and intended parents can find each other. In my view, there will continue to be a shortage of surrogates (and therefore a demand for overseas surrogacy) until in Australia we grasp the nettle and are prepared to properly compensate surrogates for their efforts. Until that occurs, we will continue to have a shortage.

If we were prepared to compensate surrogates for their pain and risk at a fixed rate, say of $10,000, plus their various expenses, it is likely that more women in South Australia will be prepared to be surrogates, and fewer journeys will occur overseas.

Allowance could also be made by compensation if certain events were to occur, e.g:

· cost of reproductive organs;

· caesarean section;

· carrying twins;

· invasive procedure, e.g. D and C, ectopic pregnancy.

In my view the broad framework of the Queensland and New South Wales Acts could accommodate such payments with some careful drafting.

In my view, the State register, regrettably, has not been effective and is unlikely to be effective.

25. The effect of Bernieres and Dhopal

In my view, it is extremely worrying that the effect of the Full Court of the Family Court decision in Bernieres and Dhopal is that there are hundreds, if not thousands of children in Australia whose legal relationship with their parents is uncertain.

The Court in that case did not take into account that if Mr and Mrs Bernieres were not the parents, who then were. Nor did the Court draw the logical conclusion that if the Indian surrogate and her husband were not the parents in India and the Australian couple were not the parents in Australia, then the child in question had no parents.

Be that as it may, the Court has drawn a challenge to how to protect the children.

In my view, South Australia should legislate to protect these children. South Australia should not wait until there is resolution at COAG. The House of Representatives Inquiry into surrogacy was conducted in 2016. It recommended urgent action by COAG. Nothing has been done. There has been no substantive response by the Federal Government to that report.

In the absence of action by the Federal Government, some action must be taken to protect the children of South Australian parents. There ought to be the ability, in a more flexible manner than that proposed under the Bill, for those in South Australia to have their parentage recognised. If it is possible for a United Kingdom Court to make a parental order where there has been an overseas surrogacy arrangement as commonly happens (with the requirement of making full disclosure to the Court about the overseas surrogacy contract that was entered into along with the payment that was made to the surrogate under that contract) then it is possible to do so one would think in South Australia.

The Court in Bernieres and Dhopal has thrown down the challenge to the States that it is the States’ responsibility due to section 60HB of the Family Law Act to regulate surrogacy.

The only legislation changes anywhere to surrogacy laws since the Inquiry were the commendable changes to South Australian law last year.

I note that the issue dealt with by the Court in 2015 (at trial) and 2017 (on appeal) was identified by the Family Law Council in its report of 2013 – but nothing was done Federally.

Currently, there are five exceptions to Bernieres and Dhopal:

1. The parties lived overseas, underwent surrogacy overseas and were recognised as parents overseas: Carlton and Bissett [2013] FamCA 143.

2. The parties live in South Australia, obtain approval from the Minister and then obtain an order from the Youth Court recognising them as the parents. As we know, the approval of the Minister cannot be obtained because the State Framework for Altruistic Surrogacy and the relevant regulations have not been made. Nevertheless, this approach of potentially obtaining an order from the court is unique Australia-wide and worthy of protecting children.

3. An order has been made which is capable of being registered with the Family Court under section 70G of the Family Law Act. Registration can typically only be made concerning orders made in New Zealand or 48 of the 51 US jurisdictions. There is some technicality in having the orders made and a discretion on the part of the Court as to public policy issues as to commercial surrogacy. Registration has occurred on three occasions in Re Halvard [2016], Re Grosvenor [2017] and Sigley and Sigley [2018].

4. An overseas adoption order has been made transferring parentage by way of a surrogacy process. These orders are commonly made in New Zealand. Similarly, these orders are made by way of second parent adoption orders, post birth, in various jurisdictions in the United States.

5. Registration of the overseas child order under the 1996 Hague Child Protection Convention. The Convention applies to overseas countries even if that country is not a party to the Convention. Many Australians have undertaken surrogacy in Canada, but Canada is not a party. The use of the Convention is untested in this context. The Convention is part of the domestic law by virtue of the Family Law Act.

Quite simply, the exceptions to Bernieres and Dhopalare technical, at times costly, difficult and do not apply across the board for the benefit of children.

There is, regrettably, no consistent definition of who is a parent or child under Federal legislation, for example:

· S.11 Australian Passport Act (parental responsibility);

· S.12, 16 Australian Citizenship Act 2007;

· Family Law Act 1975;

· S.29(2)(c) Child Support (Assessment) Act 1989;

· S.10 Superannuation Industry (Supervision) Act 1993.

If the Youth Court had power to declare that a child born overseas through an overseas surrogacy arrangement is a child of a person, then that would almost certainly clarify the parent-child legal relationship for all purposes under Australian law. It would go a long way to protecting that child’s legal rights consistent with the Convention on the Rights of the Child. Whatever benefits there might be for the parents, the benefits for the child in having the legal relationship regularised are immensurable.

Australia is a party to the International Convention on the Rights of the Child. As the High Court held in Teoh’s case, there is a legitimate expectation, absent legislation or directive that Australian decision makers will comply with the terms of the Convention. In Article 3 in all actions concerning children whether undertaken by Courts of law or legislative bodies, the best interests of the child shall be a primary consideration. Furthermore, under Article 3:

“States’ parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”

Under Article 4:

“States’ parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.”

Under Article 5:

“States’ parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”

Under Article 7:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”

Under Article 8:

“States’ parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”

In Re X (A child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) there is a considered discussion about Article 8 of the Convention in quoting another judge at [32]:

“The concept of identity includes the legal recognition of relationships between children and parents.”

President Munby refers at [54] to the equivalent of section 10HB, section 54 of the UK legislation:

“Section 54 goes to the most fundamental aspects of status and, transcending even status, 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 matter 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 the practical and psychological realities of Xs 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, it may be 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… and the Court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount.” [Comment: I note that throughout his life is a requirement of the Queensland legislation. It also ought be a requirement of the South Australian legislation so the long term impact on the child can be properly considered, not only by the court, but by all parties during the surrogacy process].

Although the European Convention on Human Rights does not apply in Australia, I draw your attention to the decision of the European Court of Human Rights in Menneson v. France and Labassee v. France [2014]. France does not approve of surrogacy. The cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment.

It was considered to be a violation of Article 8 of the European Convention concerning the children’s right to respect for their private life.

The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr and Mrs Menneson and Mr and Mrs Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society. The Court further noted the case law completely precluded the establishment of a legal relationship between children born as a result of – lawful – surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.

The applicants’ claims were dismissed at final instance by France’s highest Court, the Court of Cassation in 2011 on the grounds that recording the entries in the register would give effect to a surrogacy agreement that was null and void on public policy grounds under the French Civil Code. The Court found that there had been no infringement of the right to respect for private and family life since their name on the entries had not deprived the children of the maternal and paternal legal relationship recognised by the laws of California and Minnesota and had not prevented them from living in France with Mr and Mrs Menneson and Mr and Mrs Labassee.

Relying on Article 8, the applicants complained of the fact that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of parent/child relationships that had been legally established abroad.

The Court noted that a wide margin of appreciation had to be left to States in making decisions relating to surrogacy, in view of the difficult, ethical issues involved and the lack of consensus in these matters in Europe. Nevertheless, that margin of appreciation was narrow when it came to parentage, which involved a key aspect of individuals’ identity. The Court also had to ascertain whether fair balance had been struck between the interests of the State and those of the individuals directly concerned, with particular reference to the fundamental principle whenever children were involved, their best interests must prevail. Although the obstacles facing Mr and Mrs Menneson and the twins were not insurmountable, the Court noted that they were in a state of legal uncertainty: the French authorities, although aware that the twins had been identified in another country as the children of Mr and Mrs Menneson, had nevertheless denied them that status under French law. The Court considered that this contradiction undermined the children’s identity within French society. The Court further observed that they could only inherit from Mr and Mrs Menneson as legatees, which meant that their inheritance rights would be less favourable; the Court regarded this as depriving them of a further component of their identity in relation to their parentage. The effects of the refusal to recognise a parent/child relationship in French law between children born following surrogacy treatment abroad and the couples who had the treatment were not confined to the couples, but also extended to the children. Their right to respect for their private life, which implied that everyone should be able to establish the essence of his or her identity, including his or her parentage, was significantly affected. There was therefore a serious issue as to the compatibility of the situation with the children’s best interests, which must guide any decision concerning them.

In the Court’s view this analysis took on a special dimension when, as in the present case, one of the parents was also the child’s biological father. Given the importance of biological parentage as a component of each individual’s identity, it could not be said to be in the best interests of the child to deprive him or her of a legal tie of this nature when the biological reality of that tie was established and the child and the parent concerned sought its full recognition.

I note the similarities between Article 8 of the European Convention and Article 8 of the International Convention on the Rights of the Child, as recognised in Re X.

Australian children, including South Australian children, are in the same boat as the Menneson and Labassee children before the decision in those cases – their legal status remains uncertain.

26. Further assistance

I am happy to assist in any way with you in your deliberations if called upon.

Yours faithfully

Stephen Page

South Australian surrogacy review

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