Surrogacy Australia presentation

On Saturday and Sunday I attended the Surrogacy Australia conference in Melbourne. I had been asked to present about who was a parent in the international context, but a few weeks out from the conference, the plan changed. I was asked instead to chair the legal session and to moderate a panel of lawyers, discussing… Read More »Custom Single Post Header

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Surrogacy Australia presentation

On Saturday and Sunday I attended the Surrogacy Australia conference in Melbourne. I had been asked to present about who was a parent in the international context, but a few weeks out from the conference, the plan changed. I was asked instead to chair the legal session and to moderate a panel of lawyers, discussing various issues to do with surrogacy. Those seesions like the conference as a whole went well.

Here is the paper prepared for, but ultimately not delivered at the conference…

By Stephen Page
Harrington Family Lawyers[1]
“There are many and varied parts to parenthood.  Where the path involves an international surrogacy arrangement, it is long and difficult.  As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved.  From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.”[2]
“In the beginning God…[3]
“The book of the generation of Jesus Christ, the Son of David, the Son of Abraham.
Abraham begat Isaac;  and Isaac begat Jacob;  and Jacob begat Judus and his brethren;
And Judas begat Phares and Zara of Thamar; and Phares begat Esrom; and Esrom begat Aran”[4]
The gospel according to St. Matthew then details the forty generations from Abraham to Jesus in which the word “begat” is prominent.  You may be surprised to learn that “begat” has been cited in a legal context.
The Family Court has taken pains to identify to make a distinction between children conceived naturally, i.e. begat, and those conceived through some assisted reproductive technology or artificial insemination.
Keep it simple, stupid: conceive naturally and you are a parent
If you have sex which results in the conception of a child, then you are the parent of the child.  It doesn’t matter if you sign some document saying that you are merely a “donor”.  It is a very simple proposition; if you have sex, that results in the conception and birth of a child, then you are not only the parent as a matter of genetics, but you are a parent as a matter of law.
Whilst the law has certain presumptions in place about parentage, about who is presumed to be or not to be a parent, if you have sex that results in the conception and birth of a child, then you are the parent as a matter of law.   For example:
A lesbian couple wanted to have a child.  They were looking for a sperm donor.  The couple emphasised that they did not want the man to have any legal rights to the child, and that the child would not be advised that the man was the biological father.  The man was not to take any parental role and would not be responsible for the financial support of the child.  In the event of a separation of the couple, it was acknowledged that the co-mother would assist in the financial support of the child. This is later recorded in writing after the child’s birth.  Conception took place via vaginal intercourse.  The couple separated, the mother commenced proceedings seeking a declaration that the man was liable to pay child support.  A DNA test determined that the man was the father of the child at 99.98%.  The Family Court held that the man was the father of the child.[5]                                                    
If you are a donor in Australia then ordinarily you aren’t a parent of a child.
The law presumes that if you provide an egg or sperm to enable a child to be conceived, which results in artificial insemination or implantation of an embryo, then ordinarily you won’t be the parent of the child.[6]
The parent of the child will be the woman who gave birth and if she has a spouse, then that spouse.   If the relationship is a lesbian relationship, then the spouse will also be recognised as a parent.
The husband or de facto husband or lesbian partner of the woman will therefore be recognised as the other parent, irrespective or not as to whether they were a donor.
The only person who trumps the partner or spouse of the woman as a legal parent of the child is a man who had sexual intercourse with the woman, resulting in the conception of the child.
Going overseas can be illegal
I want to touch on three aspects of illegality:
·        It is an offence throughout Australia (except the Northern Territory) to enter into a commercial surrogacy arrangement.  In Queensland, New South Wales and the Australian Capital Territory it is an offence to enter into a commercial surrogacy arrangement if the person is ordinarily resident (in New South Wales there is also an additional alternative of domicile) in that jurisdiction.  Queensland has a further offence of making payment under a commercial surrogacy arrangement.
·        In Tasmania the new Surrogacy Act (which at the time of writing this presentation was not in force) does not make it an offence to engage in commercial surrogacy overseas, but does make it an offence in Tasmania to compile information for the purposes of making or receiving payment relating to a commercial surrogacy arrangement.  Although this section is designed to catch surrogacy agencies and brokers, those who compile information with the intention of then entering into a commercial surrogacy arrangement will also be caught.
·        It is an often overlooked offence but a very serious offence nevertheless to engage in commercial trade in eggs, sperm or embryos.  Under Commonwealth legislation this offence is subject to a maximum of fifteen years imprisonment.  There is complementary legislation in every State and in the ACT (but not the Northern Territory) also prescribing a maximum 15 years term of imprisonment.  Those undertaking commercial surrogacy overseas must be very careful to ensure that they do not engage in the commercial trade in eggs in their home jurisdiction.  For example, in New South Wales an offence is committed if partof the offence is committed in New South Wales, or that the offence has an effect in New South Wales[7].
Australia has a schizoid way of saying who is a “parent”.
This is when it becomes obvious that there may be a difference between a parent as a matter of law and a parent as a matter of genetics.  If a “child” is born to an Australian citizen who is a “parent” then by virtue of the Australian Citizenship Act 1997[8], the child is taken to have acquired Australian citizenship by descent.  If a child is born overseas where the child has been conceived naturally, i.e. begat, there is no question who is the parent and who is the child.  It is the genetic parents.
The difficulty with surrogacy is that sexual intercourse does not lead to the conception of the child.  Instead:
·        Sperm from a man (who may be the intended father or may be a sperm donor) and
·        An egg from a woman (who may be the intended mother, a donor or, rarely a surrogate);
·        Are combined in a small glass vial;
·        Then the resultant embryo is placed in an incubator;
·        Then either used fresh or frozen in liquid nitrogen;
·        Then either as fresh or thawed, the embryo is implanted into the body of another woman, the surrogate, who ultimately gives birth to the child.
Who is the parent out of this arrangement?  Is it:
·        The surrogate?
·        Her husband or partner?  (If she has one)
·        The sperm donor?
·        The egg donor?
·        The intended parents?
·        If the intended parents are in a same sex relationship, do both of them get recognised?
Here the approach taken by the Department of Immigration and Citizenship and the law as declared by judges, is at some variance.
H –v- Minister for Immigration and Citizenship (2010)[9]
The Federal Court rejected the approach taken by the Department of Immigration and Citizenship.  The Department argued that the relevant test for who is a “parent”and who is a “child” under the Australian Citizenship Act was determined by genetics or determined by the relevant definitions under the Family Law Act.
In two cases decided side by side (neither of which was a surrogacy case) the Federal Court determined that with the poor drafting of “parent” and “child”under the Australian Citizenship Act, who was the “parent” would be determined by demonstrated intent. 
The Full Court of the Federal Court held [10]:
“Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the ‘common bond’ mentioned in the preamble.  Within this framework, there is, however, little contextual support for the proposition of the word ‘parent’ has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word.  Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community…..Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word ‘parent’ in s16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage.”
The Court went on to say [11]:
There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of the s16(2), has the meaning it bears in ordinary contemporary English usage.  Indeed legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act.  No sound reason has been advanced to warrant a more limited reading of the word.
The word ‘parent’ is an everyday word in the English language, expressive of both the status and the relationship to another.  Today, in the Citizenship Act it self-recognizes, not all parents become parents in the same way….This is not to say that parents do not share common characteristics;  an everyday use of the word indicates that they do.
Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.  Once, in the case of an illegitimate child, biological connection was not enough;  Today, biological connection in specific incidences may not be enough………. Perhaps in a typical case, almost all the relevant considerations, whether biological, legal, or social will point to the same person as being ‘the parents’ of a person.  Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person is one’s own and treating him or her as one’s own.
The ordinary meaning of the word ‘parent’ is, however, clearly a question of fact, as is the question of whether a particular person qualifies as a parent within that ordinary meaning, implying s16(2)(a) the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent.  In deciding whether a person can be property described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parents’ conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge.  Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth.  For example, evidence that a person acknowledges the applicant as his own before and at the time of birth and, thereafter treated the applicant as his own, may justify a finding of that person as a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth…….
We can discern no relevant justification for holding…….that a person can only be a ‘parent’ within the meaning of s16(2) where it can be established that he or she has a relevant link to the applicant.  If the Minister’s arguments in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on a DNA test undertaken for other reason, that under the law he is not and never was a citizen……….As a practical matter, we do not consider that Parliament would have intended the likely unfortunately results of the Minister’s construction……….The practical effect of this construction would be to accord the science of genetics a status Parliament has not given it.”
The Department takes a different approach
I understand that the approach taken by the Department varies from country to country and specifically:
·        In India the approach of the Department is to insist that there is a genetic connection.
·        In Thailand the approach of the Department is to insist on a genetic connection.
·        For those intended parents going to the United States the approach appears to depend on the officer of the Department. Some are insistent on DNA testing.  Others are satisfied with the making of custody orders, consistent with H v Minister for Immigration and Citizenship.
Why are custody orders needed in the US, sometimes in Thailand but not in India?
Each overseas country has its own procedures.  More to the point, there are two international conventions concerning children, both signed at The Hague in the Netherlands.  One is called the Hague Abduction Convention.  The other is called the Hague Inter-County Adoption Convention.
Officers of the Department of Immigration and Citizenship wish to ensure, as part of Australia’s international obligations, as Australia is a signatory to both conventions, that children born through surrogacy arrangements aren’t children who have been improperly abducted, sold or adopted in the overseas jurisdiction.
India is not a signatory to the Abduction Convention, but Thailand and the United States are.  The effect of the Abduction Convention is that if a child is ordinarily resident in a country which is the signatory of the convention, such as Thailand, and the child is then either wrongfully removed or having been taken to, in this case Australia, and wrongfully detained in Australia, then a person with rights of custody in that first country, in this case Thailand, can apply to have the child returned to that first country as quickly as possible.  This is a procedure that would involve the Governments of both countries and there is a strong presumption that the child would return, as seen recently in the four Italian sisters’ case.
Because Thailand and the United States are both signatories to Abduction Convention, the best practice is to have court orders in place to overcome issues to do with the Abduction Convention.
In the United States, as Steve Snyder and John Weltman will no doubt talk about, obtaining a custody order in surrogacy cases is a straight forward procedure.
In Thailand, it is not a straight forward procedure, it being presumed that young children should remain with their mother.  As there are no laws concerning surrogacy, the surrogate is presumed to be the mother. 
Bill and Joe Bloggs undertake surrogacy through the You Beauty Rippa Surrogacy Agency in Kerala which specialises in surrogacies for Australians.  The surrogate is implanted with an embryo comprised of Bill’s sperm and the egg of an anonymous Caucasian donor.  When the child is born it is clearly not Caucasian.  Despite the terms of the surrogacy agreement, the surrogate did not stop having sex with her husband.  The child was found to be genetically the child of the surrogate and her husband.
Clearly as to how the Department administers the Citizenship Act, Bill and Joe would not be “parents” of the child if they are not genetically related to the child.  However despite everything that had occurred, they decided to raise the child as their own then within the meaning of H v Minister for Immigration and Citizenship. They would be the “parents” of the “child” who would be entitled to Australian citizenship by descent.  It is unlikely that the Department would accept that the child is an Australian citizen.
Bruce and Matt are a gay couple who have undertaken surrogacy with the Ripsnorter Surrogacy Agency in Bangkok.  Bruce is an Australian citizen.  Matt is not.  Each supply a sample of sperm at the request of the agency, for testing purposes.  It is determined that Bruce has the best quality sperm.  He is to be the father.  The child is conceived and born.  Bruce is named on the Thai birth certificate as dad.  The application for Australian citizenship is made with Bruce as the father.  At the request of the Department the DNA test is undertaken.  This demonstrates that Bruce is not the father.  Subsequent tests determine that Matt is the father.  Under the approach taken by the Department, it is unlikely that the Department would accept the child as being an Australian citizen.  Under the test in H v Minister for Immigration and Citizenship, Bruce would be considered to be the parent of the child.
The Thai Cases
Because of complications with Thai law a series of cases were brought in the Family Court in Sydney.  This was so that parentage orders were made so that the hurdles with the Hague Abduction Convention could be overcome in the eyes of the Department, and therefore the children could be granted citizenship.
There were many cases decided in which there were no great difficulties in obtaining parentage orders.
On 30 June 2011, the potential for who is or who is not a parent changed dramatically.  On that day, Justice Watts made parentage orders in four matters, two of which came from Queensland and two from New South Wales.  The Queensland couples were referred to the Queensland Director of Public Prosecutions[12]because it appeared that the parties had engaged in commercial surrogacy which is an offence in Queensland.
His Honour questioned that as the law does not reward those who commit criminal acts, so might the law not recognise someone as a “parent” of a child who engaged in the illegal act.  It is possible that the Department of Immigration and Citizenship could adopt this reasoning, although it has not made any noises to do so.  These cases highlight the increased dangers for those intended parents from Queensland, New South Wales, the ACT and Tasmania as to what impact there might be upon their children, i.e. the possibility that their children might not be granted citizenship.
In the other two cases, his Honour dealt with the relevant provisions of the Status of Children Act and questioned whether the intended parents would be recognised as parents of the children in circumstances where the parenting presumptions in the Status of Children Act (which his Honour noted were not intended for surrogacy matters) might mean that the only parent of the child was the surrogate.
If that were the case therefore the intended parents are not “parents” then that might have implications for citizenship of any child born through surrogacy overseas.
Ellison and Karnchanit[13]v. Gough and Kaur[14]
In Ellison and Karnchanit, the test case concerning overseas surrogacy, Justice Ryan of the Family Court held that the Queensland intended father was the “parent”as a matter of law for Australian purposes.  Even though the intended parents were from Queensland, her Honour did not refer the matter to the Director of Public Prosecutions.
The intended parents commenced proceedings in early 2011 no doubt hoping for a quick result from the Family Court to make parenting orders.  Instead the matter turned into a 3 day trial in which they were interviewed by a court expert for a family report, an independent children’s lawyer was appointed and the Australian Human Rights Commission intervened.
Justice Ryan took a different approach to Justice Watts in that she found that the intended father was the father of the child as a matter of Australian law.  This was not because of the Thai birth certificate or from genetics but from a complex interplay of amongst others the Sex Discrimination Act and Queensland’s Status of Children Act. Her Honour was quite clear to try and ensure that it wasn’t a case of the children being victims of child trafficking for whom unidentified parents searched in vain.
Her Honour set out guidelines as to what should happen in these cases in future.  They are:
133.          “For all surrogacy cases, the steps set out below should be followed.
134.          An Independent Children’s Lawyer is appointed to represent the child’s      interests.
135.          Affidavit evidence of the applicant(s) and the birth mother comprising:
a.                  their personal circumstances, in particular the circumstances at the            time the procedure took place;
b.                  their circumstances leading up to the surrogacy agreement and of the         procedure itself;
c.                   the circumstances after the birth of the child and subsequent           arrangements for the care of the child.
136.          Independent evidence regarding the identification of the child including:
a.                   the surrogacy contract/agreement entered into between the persons            seeking the parenting orders and the clinic and/or surrogate mother;
b.                        a certified copy of the child’s birth certificate, and, if not in English, a                    translation accompanied by an affidavit of the person making the                                 translation verifying that it is a correct translation and setting out the                       translator’s full name, address and qualifications;
c.                        parentage testing in accordance with the Regulations to ascertain                           whether that the child is the biological child of the person/s seeking the                    parenting orders;
d.                        evidence of Australian citizenship of the child if citizenship has been                       granted.
137.          Independent evidence with respect to the surrogate birth mother. This may be        obtained by a family consultant or an independent lawyer, including:
a.                  confirmation that legal advice and counselling were provided to the           surrogate mother prior to entering into the surrogacy arrangement;
b.                  confirmation that the surrogacy arrangement was entered into before        the child was conceived;
                                           c.            confirmation that the surrogacy arrangement was made with the    informed consent of the surrogate mother;
                                          d.            evidence after the birth of the child of the surrogate mother’s views            about the orders sought and what relationship, if any, she proposes    with the child;
                                           e.            if the child has been granted a visa to enter Australia, evidence of   participation by the surrogate mother in an interview with immigration officials prior to the grant of the visa, and the views expressed by her           during this interview.
138.          The preparation of a Family Report which addresses:
                                          a.            the nature of the child’s relationship with the persons seeking          parenting orders;
                                          b.            the effect on the child of changing their circumstances;
                                           c.            an assessment of the persons seeking the parenting orders capacity             and commitment to the long-term welfare of the child;
                                          d.            the persons seeking the parenting orders’ capacity to promote the   child’s connection to their country of birth’s culture including but not    limited to their birth mother;
                                           e.            advice in relation to issues which may arise concerning the child’s identity and how those issues are best managed;
                                            f.            the views of the birth mother, in particular her consent to the proposed      parenting orders, and other matters with respect to the birth mother   referred to above.
139.          Other evidence including:
                                          a.            evidence of the legal regime in the overseas jurisdiction in which the          procedure took place with respect to surrogacy arrangements;
                                          b.            evidence of the legal regime in the overseas jurisdiction in which the          procedure took place with respect to the rights of the birth mother, and       if applicable, of her husband or de facto partner.”
The effect in Thailand since Ellison and Karnchanit was before the court, in late 2011 the Department of Immigration and Citizenship has changed its procedures so that it requires the consent of the Thai surrogate to be obtained.  Interviews occur at the Embassy offices.  The effect of the interviews is so as to avoid the need to go to court so as to avoid a repetition of cases such as Ellison and Karnchanit.
One of the key features about Ellison and Karnchanitwas that the intended parents simply did not know as to whether the surrogate was in a relationship.  The turning point of the case was that the surrogate was not in a de facto relationship at the time of the conception of the child.  If she had been, then the intended father would not have been the father of the child for Australian purposes, but the surrogate’s de facto partner would have been the father.  Similarly if the surrogate had been married (as often occurs overseas) then the surrogate’s husband would have been the father of the child.
Similarly if the surrogate had been living in a lesbian relationship, her lesbian partner (and not the intended father) would for Australian purposes have been the other parent of the child.
Justice Ryan did not make any decision about who the mother was of the child and it is a moot point as to whether it was the intended mother, the surrogate or the egg donor.
Essentially anyone who goes to the Family Court in light of Ellison and Karnchanit must be crazy or very determined to spend a large sum of money with no definite outcome to enable a lawyer and/or social worker to go on a working holiday to Thailand (or other country that might be relevant).
It is my view having reviewed Ellison and Karnchanitthat although her Honour found that Mr Ellison was the father for Australian Law there were other provisions of Queensland’s Status of Children Act that her Honour did not consider that may mean that he is not the father for those purposes.
Gough and Kaur [2012]
Mr and Mrs Gough by contrast came before Justice Macmillan in the Family Court.  Mr and Mrs Gough had undertaken surrogacy in Thailand.  Justice Macmillan made a parenting order but in the process of doing so that the intended father was not the father as a matter of law of the child.  As her Honour put it in referring to the intended father:
            “Whilst he provided genetic material, the child is not his child for the purposes of the        [Family Law] Act.”[15]
So there you have it – Justice Ryan is of the view that an intended father in the position of Mr and Mrs Gough could be a “parent”for the purpose of the Family Law Act,but Justice Macmillan was of the view that he was not.
Schone and Schone [2012][16]
Mr and Mrs Schone went to India for commercial surrogacy and then appeared before Federal Magistrate Phipps.  His Honour noted the difference in approaches in Ellison and Karnchanit and Gough and Goughas he put it:
            “If I was to proceed with this case, I would be faced with conflicting decisions by Family Court of Australia Judges.”[17]
His Honour then went on to say that although Justice Ryan had set out procedure for the appointment of an independent children’s lawyer that was not in accordance with procedure dictated in Victoria by the Legal Aid Commission.  His Honour transferred the matter to the Family Court where it has not yet been determined.
A court process of the kind described in Ellisonand Karnchanit would often cost in the order of $50,000 to $100,000 or more.
Blake and Anor [2013][18]
Mr Blake and Mr Marston undertook surrogacy in India.  Justice Crisford dealt with an application by Mr Blake, Mr Marston’s partner, to adopt the twins who were born under that surrogacy arrangement in Mumbai.
Mr Marston and the surrogate, Mrs S and her husband entered into a surrogacy agreement.  In accordance with that agreement Mr and Mrs S relinquished all their rights to any children born of the surrogacy procedure and covenanted not to engage in any legal proceedings in relation to their rights of custody of the children.  The surrogacy agreement made no mention of Mr Blake.  The children came into the care of Mr Blake and Mr Marston upon their birth.  Mr Marston was shown to be the genetic parent of the children.  Each of the children were registered as Australian citizens by descent.
To be eligible to adopt, Mr Blake had to fulfil the definition of a “step-parent” for the purposes of a step-parent adoption in Western Australia and therefore Mr Marston would have to be defined as either a “birth parent” or “adoptive parent” of the children.  Much of the case turned on the language of the Artificial Conception Act, Western Australia’s legislation dealing with parenting presumptions.
Her Honour stated:
            “Although the Court is satisfied that Mr Marston has established on the balance of           probability that he is a biological or genetic father of the twins, it does not        automatically follow that the state law recognises either him as a parent of Mr Blake   as a step-parent… 
            There are certified copies of overseas birth certificates showing      Mr Marston as the      father.  The Certificates were accepted by the Department of Immigration and Citizenship in assessing the issue of citizenship and the provision of passports.  One overarching consideration is that since July 2010 Mr Marston and Mr Blake have    acted as parents to these children.  They have fulfilled that role for over two years            without input from any other person who might be seen as a parent…
            To suggest that Mr Marston is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of ‘single families’ in present day        society.  It is also turning a blind eye to the reality of the situation presently before the    Court.  The objective facts surrounding the birth and the manner in which various agencies have treated those circumstances coupled with the fact the genetic father            acting in that role since the birth of the twins points to the use of an expanded          definition of parents.
            To adopt any other interpretation would serve no purpose in addressing any public           policy issues if, indeed, any exist.  It would serve no purpose in enhancing the future           welfare and best interests of these children”.
Her Honour then went on to make the adoption order.  There are some significant features of this case:
1.      The Court looked at the reality of who is a parent;
2.      The provisions of the Artificial Conception Act are much like the Status of Children Act in New South Wales and similar legislation in other states.
3.      By looking at the reality of the situation her Honour has possibly opened the door for more cases in which an intended father maybe considered to be the father of a child.
4.      It was only because of the position of the WA Department for Child Protection that there was no investigation of views of the surrogate or her husband otherwise it is likely that in line with Ellison v Karnchanit such a cost and slow procedure would have occurred.  Mr Blake and Mr Marston were lucky.
5.      This case is an illustration of how the law can cater for unintended cases.  The Adoption Act was intended to apply to home grown adoptions.  Accordingly there would be an adoption plan.  Her Honour saw that in light of the surrogacy contract there was no need for that.
6.      This case is also an illustration of how in other states such a step might not be taken.  In Queensland, for example, adoption by same sex couples is banned, which also means that a decision like this could never occur under current laws in Queensland.
7.      Finally, this case is yet another illustration about why there needs to be reform about who is or who is not a parent through a surrogacy arrangement, and some common sense, as seen in this case, as well.
Parents are not parents
Intended parents may or may not be genetically parents of a child.  The effect of those decisions of the Federal Court and Family Court and reflecting upon State legislation one can say this:
1.      A person may genetically be a parent of the child but not a parent as a matter of law.
2.      A person may not be genetically a parent of the child but may be a parent of the child for some purposes at law.
3.      While a person might be recognised for some purposes as a matter of law as the parent of a child (for example for citizenship purposes) that person may not be recognised for other purposes as the parent of the child, such as under the Family Law Act or to do with wills and estate planning.
4.      A birth certificate issued overseas does not mean that you are the parent of a child in Australia as a matter of law.
5.      One of the biggest risks is that children will be disinherited.  It is absolutely imperative that anyone who is undertaking overseas surrogacy (whether commercial or altruistic) needs to ensure that wills are up to date, that they make specific reference before the birth of the child to anyone born a child and after the birth of the child to that child specifically and that there be appropriate documentation drawn so that the child is not accidently disinherited.
It is only a question of time in my view that children will be disinherited because of a failure of intended parents to properly plan.
Possible Reform
Before she resigned as Attorney General, Nicola Roxon asked a statutory body, the Family Law Council, to review how the Family Law Act relates to the various state Surrogacy Acts.  That review is likely report before the end of the year.  Whoever the Attorney will be, it will not be Nicola Roxon.
Submissions to the Family Law Council are open until 1May 2013.
US Orders
It is possible for orders to be, in effect, orders made under the Family Law Act.  The process in the United States necessarily involves obtaining a custody order.
The Family Law Actenables final orders that have been made overseas (with some exceptions) to have the same force and effect as if they were an order made by that Court, for example, the Superior Court of California at Los Angeles, under the Family Law Act.
What is required is an administrative process to register an order.
Section 70J of the Family Law Act provides:
(1)     “A court in Australia that is aware that an overseas child order is registered              under section 70G must not exercise jurisdiction in proceedings for the       making of a Subdivision C parenting order in relation to the child concerned     unless:
                     (a)  each person:
                              (i)  with whom the child is supposed to live; or
                             (ii)  who is to spend time with the child; or
                            (iii)  who is to have contact with the child; or
                            (iv)  who has rights of custody or access in relation to the child;
                                    under the overseas order consents to the exercise of jurisdiction by the                              court in the proceedings; or
                     (b)  the court is satisfied that there are substantial grounds for believing that the                     child’s welfare requires that the court exercise jurisdiction in the                               proceedings.
             (2)  If a court exercises jurisdiction in proceedings for a Subdivision C parenting                          order in relation to a child who is the subject of an overseas child order, the                        court must not make a Subdivision C parenting order in relation to the child                       unless it is satisfied:
                     (a)  that the welfare of the child is likely to be adversely affected if the order is                        not made; or
                     (b)  that there has been such a change in the circumstances of the child since the                    making of the overseas child order that the Subdivision C parenting order                     ought to be made.”
Although registration is an administrative process, one wonders what approach a registrar might take on an application for registration of orders made in the United States having regard to the decision in Ellison and Karnchanit. 
The relevant overseas jurisdictions that are recognised under the Family Law Act[19]include:
·         California
·         Idaho
·         Illinois
·         Ohio
·         Minnesota
·         Massachusetts
Although the effect of this provision of the Family Law Act may not recognise intended parents as “parents”, it may mean that it grants those intended parents all the rights of parentage (other than the issue of inheritance) if the order the order is registered properly under the Family Law Act.
It is in my view essential that anyone contemplating obtaining such an order from the US obtains good legal advice from an Australian Lawyer about the form of the order, the registration process with the Family Court and as to the particular jurisdiction to ensure that the order is made in the correct jurisdiction and can therefore be registered under the Family Law Act.
In my view one of the simplest alterations is to:
a.       Amend the Australian Citizenship Act so that legislation recognises the effect of the decision in H v Minister of Immigration and Citizenship so we don’t have this discord between what the court has pronounced and the approach taken in different jurisdictions by the Department;
b.      Amend the Family Law Act so that there is a presumption that a person who has been recognised as a parent for the purposes of the Australian Citizenship Act by the Department of Immigration and Citizenship is also a parent for the purposes of the Family Law Act;
c.       Similarly amend State Legislation such as the Artificial Conception Act (WA) and the Status of Children Act (NSW) making a similar recognition;
d.      Amend the Family Law Act so that the spouse (whether married or de facto and irrespective of gender) of a person in being so recognised is also a parent of the child.
e.       Similarly amend the various state legislation to accord the same recognition.
Finally I leave you with this thought.  In September 2012 I presented to New South Wales MP’s.  I told them that their legislation, Status of Children Act (NSW) as Justice Watts had identified, probably meant that people from New South Wales who had gone overseas (whether legally or not) were not recognised for the laws in New South Wales and particularly for inheritance purposes as the parents of their children.  The reaction of the MP’s was disbelief and shock.  Several of them had their jaws agape they did not know that their laws had that effect.
Stephen Page
5 February 2013
Connect with me here:
Harrington Family Lawyers
Australian Divorce Blog 
Australian Gay and Lesbian
Law Blog                      
Australian Surrogacy
and Adoption Blog       


[1]Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an accredited family law specialist.  He is an international representative of the American Bar Association Assisted Reproductive Technology Committee Executive Council, a member of the International Surrogacy Forum and a member of the Fertility Society of Australia.  He is the author of the Australian surrogacy and Adoption Blog:
[2]Justice Ryan in Ellison and anor and Karnchanit [2012]FAM CA602
[3]The first four words of Genesis according to the James VI Bible
[4]Matthew: 1;1-3
[5]ND & BN [2003] FamCA 469
[6]For example Status of Children Act 1978 (Qld), ss. 15-23
[8]Australian Citizenship Act 2007 (Cth) ss.12,16 letter viewable at:
[10]At [54]
[11]At [127-131]
[12]Dudley and Chedi [2011] Fam CA 502, viewable at:
[15]At [7]
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