Steeplechase for would be parents: The ten barriers to becoming parents through surrogacy

Wednesday, July 04, 2018

In January, I presented at the Equality Project conference in Melbourne. I thought the organisors were being optimistic in booking Melbourne Town Hall as the venue, but then over 500 people turned up!

Here is my paper:

Steeplechase for would be parents:

The ten barriers to becoming parents through surrogacy

EQUALITY PROJECT CONFERENCE

12 January 2018

Stephen Page[1]

I acknowledge the traditional owners of the land upon which we meet today, the Wurundjeri, Boonwurrung, Taungurong, Dja Wurrung and the Wathaurong people who make up the Kulin Nation.

There are four ways in which LGBTIQ people can become parents:

1. Sex

If a man and woman have sexual intercourse resulting in the birth of the child, each of them will be the lawful parents of their child, subject to any order as to adoption or surrogacy.

2. Co-parenting/sperm donation

There are barriers here for LGBTIQ people, which I will talk about shortly.

3. Adoption

Adoption laws no longer discriminate against LGBTIQ people, except in the Northern Territory which continues to discriminate.

4. Surrogacy

There are ample barriers making it considerably harder and more expensive for LGBTIQ people to become parents through surrogacy, and I will talk about those shortly.

Co-parenting/Sperm Donation

When women want to become pregnant through IVF or at home and don’t engage in sex, it is axiomatic that they need a sperm donor.

If the woman is single and the sperm donor is a known donor then, despite State and Territory laws that say that she is the sole parent and he is not, a Family Court decision from 2013 means that he may well be the parent, even if she thought that he was never going to be the parent.

Unless single women are prepared to be in a co-parenting relationship with their sperm donor, they should instead access donor sperm which is anonymous (to all concerned and to the child at least until the child turns 18 when the child can find out where they came from) from an IVF clinic. The woman should not in those circumstances engage a known donor.

If the woman wants to proceed nevertheless, to minimise risk it is recommended that the man and woman undertake counselling with an experienced fertility counsellor, such as an ANZICA[2]member. Furthermore, they should enter into a written, properly drafted sperm donor agreement. It is doubtful whether the sperm donor agreement is enforceable. Indeed a decision of a Federal Circuit Court judge a few years ago, just a kilometre away from where we are, means that the sperm donor agreement was disregarded. Nevertheless, a sperm donor agreement sets out the intentions of the parties in black and white. The process of having such an agreement in writing, where the terms are precise and unambiguous in itself helps reduce risk.

It is common for lesbian couples to have known sperm donors. It is common for those donors to be gay and to have a partner. The law as it stands would mean that both women are the lawful parents of the child and the man or men are not. This has only come about relatively recently. There are children who have been born where the birth mother is named on the birth certificate as the mother and the sperm donor named as the father. There have been four Court cases in New South Wales and Queensland where the man’s name has been removed from the birth register so that the birth mother’s partner can be named on the birth register as a parent of the child.

Unlike a good number of States in the United States, our law has not kept up with the times in recognising the child can have up to three parents.

In Ontario, with little fuss, it is possible for a child to have up to four parents recorded on the birth register. The same should occur in Australia to reflect the reality for these children.

There have been terrible Court cases in Australia between the lesbian couple and the donor or the donor and his partner. To some extent, with appropriate legal changes these cases should have been avoided. Under the current law, the donor is not a parent nor is his partner, but each may have the ability to seek orders under the Family Law Act. In one case – from Melbourne – a gay man donated his sperm to a lesbian couple. The man thought he was going to become the father. The couple were of the view that he was only the donor. The matter was bitterly fought about the child, Patrick. Ultimately the Court found that the man was not a parent. Nevertheless it was in the best interests of the child to spend time with him. The mother did not accept the outcome and as I understand it committed suicide.

Co-parenting arrangements are fraught with danger. They are nevertheless reasonably common particularly within the LGBTIQ community. There is currently a review being undertaken by the Federal Government through the Australian Law Reform Commission of the Family Law Act and family law system. Consideration of the proper regulation of recognition of co-parenting relationships should form part of that review.

If more than two people are recognised as parents, that will have a flow-on effect under both Commonwealth and State and Territory laws, such as to do with parental responsibility (under the Family Law Act and the Australian Passports Act ), inheritance and child support amongst others.

Barriers to Family Formation

There are barriers within our laws and systems that make it harder or more expensive for LGBTIQ people to become parents.

The First Barrier: Medical or Social Infertility

Medicare provides rebates for IVF. Services are only available from Medicare if it is seen that the patient is infertile. Who is infertile is a controversial topic. The classic definition of infertility, according to the World Health Organization is that it is “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse”.

The definition has, not surprisingly, been criticised for being discriminatory towards LGBTIQ people. In 2016, the WHO considered altering its definition so that by the commencement of 2017 infertility would in essence be anyone undertaking assisted reproductive treatment. Therefore it would be non-discriminatory. That change hasn’t yet happened.

Medicare’s position is that it leaves the definition of infertility up to doctors so they can decide whether it is appropriate to treat (and therefore claim a Medicare rebate).

The problem with that approach is that some doctors are of the view that there is a difference between medical infertility and social infertility. A lesbian who, for example, could conceive by having sex with a man would under that definition be considered to be socially infertile, not medically infertile and therefore not entitled to the rebate.

At a time when the Sex Discrimination Actmakes plain that there ought not to be any discrimination against LGBTIQ people and the provision of services, there ought to be a definition of infertility to the effect that anyone who needs assisted reproductive treatment is infertile.

Other doctors take the latter view. The problem for patients is that they don’t know, after they have been referred by their GP to a particular specialist, whether or not they will be able to claim the rebate. The cost difference can be in the thousands.

The Second Barrier: no Medicare for surrogacy

The legal basis that Medicare rebates are paid is under the Health Insurance (General Medical Services Table) Regulations 2017(Cth). One couldn’t imagine a more obscure piece of regulation, but item 2.37.7 in referring to payment of the rebate for assisted reproductive treatment services states that they:

“…do not apply to a service provided in relation to a patient’s pregnancy, or intended pregnancy, that is, at the time of the service, the subject of an agreement or arrangement, under which the patient makes provision for transfer to another person of the guardianship of, or custodial rights to, a child born as a result of the pregnancy.”

In other words, if there is a surrogacy arrangement then no rebate is payable. It seems extraordinary that stories of IVF treatment of up to 36 cycles for heterosexual couples can be willingly paid for by the taxpayer but one IVF treatment cycle for a gay couple, for example, cannot be. Not having the rebate can add many thousands of dollars to the bill and make surrogacy impossible for some. Those who are desperate enough to have children will look at other options, such as co-parenting which are arguably riskier both for them and the child – and the taxpayer.

There is a difference of opinion as to what the exclusion means. Some lawyers are of the view that the exclusion only applies if a signed surrogacy arrangement is in existence (in those States where a signed arrangement is required) such as New South Wales and Queensland, whereas others are of the view that the exclusion applies as soon as the doctor or clinic suspects that the person or couple is seeking to engage in surrogacy. Two men walk into the room…

The Third Barrier: Discrimination in ART law, including surrogacy

One might think that now that equal marriage laws are in place that discrimination would have no say in assisted reproductive treatment and surrogacy. This is far from the truth, particularly for surrogacy. Australia is the country that invented three rail gauges as its means of transport:

Standard – in New South Wales of 4 foot 8½ inches;
Wide gauge in Victoria of 5 foot 3 inches;
Queensland, Western Australia and Tasmania navigates at 3 foot 6 inches; and
Lucky South Australia had all three.

We have done the same with surrogacy. Around the nation by discrimination:

· The Sex Discrimination Act 1984 (Cth) has finally prevented the provision of discrimination on the basis of sexuality or relationship status and yet:

o Queensland still has on its books section 45A Anti-Discrimination Act 1991 (Qld) – which allows discrimination in ART on the basis of relationship status or sexuality;

o NSW does not have discrimination;

o ACT does not actively discriminate, but single people need not apply for surrogacy. Both the intended parents (who in the ACT are called substitute parents) must be a couple as must the surrogate and partner;

o Victoria does not have discrimination;

o Tasmania does not actively discriminate – but anyone seeking to undertake surrogacy in Tasmania must ensure that all parties live in Tasmania at the time of signing the surrogacy arrangement – although they can obtain dispensation from a magistrate. That’s at the end of the process which may be 18 months to 2 years away – something which has a wing and a prayer about it;

o South Australia in March last year removed discrimination against same sex couples, but insisted that singles cannot seek surrogacy. South Australia also insisted that licence holders be able to be registered objectors on a name and shame file who can refuse to provide treatment based on matters of their conscience to same sex couples, but it would appear the South Australian Parliament did not properly realise the effect of those laws – because the only people who can be registered objectors are the four IVF clinics themselves (none of whom I anticipate would discriminate), not individual doctors.

o Western Australia continues to insist, in apparent breach of the Sex Discrimination Act, that single men and gay couples not be parents through surrogacy. They need not apply.

o The Northern Territory has no laws about surrogacy. The only IVF clinic in the Northern Territory operates under South Australian rules and it has decided that it will not provide surrogacy services in the Northern Territory because a Court order can’t be made there to transfer parentage.

The Northern Territory from that point of view is a microcosm of the national problem in that if you live in the NT you will go interstate or more likely overseas to become parents through surrogacy. In other words, the inadequate legal setting in the NT is driving people overseas.

Fourth Barrier: Where can you undertake treatment?

You may think that wherever you live in Australia you can undertake IVF anywhere within Australia for the purposes of surrogacy. Quite simply you are wrong. Only Queensland, New South Wales and Tasmania give you that freedom. That freedom is pretty limited within Australia because the State based rules in Victoria, South Australia and Western Australia (and the lack of laws in the Northern Territory) means that if you live in Queensland, New South Wales or Tasmania, you won’t be going to those other States for treatment.

If you live in Victoria you must have part of the IVF undertaken in Victoria. Likewise in the ACT, South Australia and Western Australia.

Why can’t someone who lives in Perth undertake IVF in New South Wales, for example?

Fifth Barrier: Interstate rules are a repeat of 19^thCentury rail gauges

The interstate rules with surrogacy at times make me want to pull my hair out. Considerable cost, time, worry and sometimes delay occur by having intended parents and the surrogate live in different States. The House of Representatives Committee in 2016 called for national non-discriminatory laws on surrogacy – but nothing has been done since then. Each of the States think that they have invented a perfect model. They haven’t – because each of the models is focused on that State alone and not on a national model. Some State systems, such as Queensland and New South Wales are more flexible (whilst protecting the human rights of all involved) than others (such as Western Australia). Quite simply we as a nation can do better and ought to have done so years ago.

Sixth Barrier: Finding an egg donor

Unless you have a friend or family member who is an egg donor, there are real problems. A couple of clinics have egg banks. Depending on your State rules these may not be available to you. Under Commonwealth and State laws, egg donors must be altruistic. Otherwise intended parents risk committing an offence punishable by up to 15 years imprisonment.

What’s the upshot? Intended parents go overseas because they can’t find egg donors. Australians have gone all over the world – all the usual places that have I’ve talked about for surrogacy, but also Argentina, Spain, Greece and South Africa as well as of course the US, Ukraine and Canada. In 2016 I visited a clinic in South Africa which were seeing 3-5 Australian couples per day.

There have been media reports of intended parents being bullied and blackmailed by would-be donors or their partners – because there is such a scarcity of donors in Australia.

We ought to compensate donors for being donors and thereby encourage more women to come forward. There ought to be Government regulation capping the amount, such as say $5,000. We want to protect the human rights of donors and ensure that they are not exploited. When Australians go overseas for egg donation often the rules in place overseas say that the child will not find out who the donor was. We are failing those children who surely have a right to know their genetic origin.

Seventh Barrier: A lack of surrogates

Across Australia (with the exception of the Northern Territory) it is an offence to engage in commercial surrogacy. What is commercial surrogacy varies greatly. One might think that the surrogates should have their life insurance paid. After all they are putting their lives at risk. That’s lawful in Queensland and New South Wales, for example but a criminal offence here in Victoria.

Again, because we don’t allow the payment of compensation to surrogates there is a severe shortage of surrogates in Australia. This results in Australians going overseas, spending between $80,000 and $300,000 per child on their surrogacy journey. The same journey in Australia would cost $30,000 to $70,000. We are a smart enough country that we could put in place a regime to protect the human rights of all involved, with judicial oversight, and pay compensation to surrogates capped at a regulated rate, say $10,000, so that more surrogates are available and the temptation of Australians to go overseas is greatly reduced? In doing so, we reduce the costs for intended parents, give greater legal certainty to the children, and reduce the risks for all concerned from surrogacy in developing countries.

Eighth Barrier: Criminal mockery

For those who have to go overseas they have to be concerned whether they are committing offences inadvertently under Australian human tissue laws or human cloning laws (to do with egg donors) or surrogacy laws. Victoria, Tasmania and the Northern Territory make plain that you can go overseas for surrogacy without committing an offence under surrogacy legislation (or the lack of it in the NT). If you hail from Queensland, New South Wales, ACT – it is clear that you may be committing an offence in undertaking commercial surrogacy overseas. You may be committing an offence also if you come from Western Australia or South Australia. In South Australia you may have to seek the permission of the South Australian Health Minister – who has to be guided by two documents in making a decision about giving approval to your request – neither of which document exists!

Then Chief Justice Diana Bryant of the Family Court and current Chief Justice John Pascoe now of the Family Court called in 2014 for the removal of these criminal laws which they said weren’t being enforced, were not in effect a barrier to people going overseas and instead made a mockery of the law. Nothing has been done since then – except in South Australia where it seems to be harder to go overseas now than it was then.

Ninth Barrier- Enough Money

Of course, as I said, you need to have enough money to undertake surrogacy overseas. Currently it costs $30,000 to $70,000 to undertake surrogacy in Australia, ballpark A$120,000 to undertake surrogacy in Canada and A$140,000 to A$300,000 in the United States. Many people simply can’t afford it.

The Final Barrier: Not being parents

Assuming that you have gone all the way overseas to have children, the Family Court in September last year said that a couple who had done so from Victoria to India were not parents under the Family Law Act. They may however be parents for other purposes, for example, citizenship. This decision has caused consternation amongst many intended parents. The Federal Government was warned by the Family Law Council in 2013 that this type of decision might happen – but nothing has been done.

The House of Representatives Committee reviewed surrogacy in 2016 and recommended that only altruistic surrogacy be allowed in Australia and that it should be harder for people to go overseas if the country has standards less stringent than Australia’s. The only country in the world that has standards that are as stringent as ours is New Zealand. If those recommendations of the House of Representatives Committee are enacted, it won’t stop people going overseas for surrogacy but unnecessarily just cause pain, more cost and delay.

Stephen Page
Harrington Family Lawyers
https://surrogacyandadoption.blogspot.com.au
facebook.com/Stephen.Page.Lawyer.Brisbane

[1] Stephen Page is a partner of Harrington Family Lawyers Brisbane. He was admitted as a solicitor in 1987 and is a surrogacy and family lawyer. He has written and presented about family law and surrogacy issues around the world. He and his husband Mitchell were married in 2015.

[2] Australia and New Zealand Infertility Counsellors Association