Tiptoe through the minefield: surrogacy law comparisons in Qld, NSW and Victoria

Monday, March 07, 2011

On Saturday I addressed the biennial training of a large IVF clinic, City Fertility Centre, about the legal challenges of surrogacy in Queensland, NSW and Victoria. Here is the paper I delivered:

TIPTOE THROUGH THE MINEFIELD

SURROGACY LAWS IN QUEENSLAND,
NEW SOUTH WALES AND VICTORIA

by Stephen Page
Partner, Harrington Family Lawyers[1]

Some history

Surrogacy, at least in its traditional sense, has existed at least since the time of the Old Testament.[2] Arrangements regarding surrogacy were not the subject of any regulation and there is no question that surrogacy arrangements by their nature were not binding as they would be considered void as against public policy.

With the rise of IVF and ART, it was suddenly realised that gestational surrogacy was possible and as a result regulation was brought in by various Parliaments so as to either regulate or prohibit surrogacy.

The approach taken in Queensland was the harshest in the Australia. The Surrogate Parenthood Act 1988 prohibited surrogacy, whether altruistic or commercial, to such an extent that to enter into a surrogacy arrangement in Queensland was an offence and it was also an offence for a person ordinarily resident in Queensland to enter into any form of surrogacy outside of Queensland.[3]

By virtue of the provisions of the Criminal Code it also meant that if anyone aided and abetted[4], counselled[5] or procured[6] the engaging in of surrogacy, then they also committed an offence.

New South Wales was a useful comparison. Under the Assisted Reproductive Technology Act 2007, commercial surrogacy was banned including as a criminal offence[7], but altruistic surrogacy was simply not referred to as if it did not exist, and was therefore legal. However, there was no mechanism, aside from adoption, to allow for the transfer of parentage. Adoption as a mechanism had clear limitations.

Victoria took a different approach again. Its Infertility Treatment Act 1995 prohibited surrogacy in all its forms[8], but also made ART providers the subject of a regulator. There was no such regulator in either Queensland or New South Wales and nor is there now.

By 2006, there was a patchwork of laws covering surrogacy. The eight States and Territories had eight different models, varying from the Northern Territory, which surprisingly, had (and still has) no laws regarding surrogacy whatsoever[9] , to the Queensland model, which criminalised everything.

The problem of the patchwork of laws was highlighted in 2006 when Senator Stephen Conroy (now the Communications Minister) and his wife Paula Benson travelled from Victoria to New South Wales to engage in an altruistic surrogacy. They were not allowed to have a child in Victoria because of the provisions of the Infertility Treatment Act.[10]

In 2006, then Attorney-General Philip Ruddock was instrumental in having the standing committee of attorneys-general (the unfortunate acronym of SCAG) consider surrogacy. Mr Ruddock was quite clear that there ought to be one system throughout Australia[11].

Queensland

Pre 1 June 2010

There are 2 significant features:

(a) It was an offence for any form of surrogacy in Queensland to be committed and for anyone ordinarily resident in Queensland to engage in surrogacy, wherever that might occur.[12]

(b) There was in effect an amnesty period for altruistic surrogacy, so that on the commencement of the Surrogacy Act 2010 on 1 June 2010, intended parents could make application to the Children’s Court for a parentage order. This window of opportunity ceases on 31 May, 2012[13].

From 1 June 2010

The Surrogacy Act 2010 commenced on 1 June 2010 in all respects. It has 3 significant features:

1. It legalised altruistic surrogacy in Queensland, and set up a system of regulation.

2. It continues the ban on commercial surrogacy in Queensland and by those ordinarily resident in Queensland engaging in commercial surrogacy anywhere else, including overseas jurisdictions such as India, Thailand and the United States.

3. It amended the Births, Deaths and Marriages Registration Act and the Status of Children Act so that lesbian couples undertaking ART can both be recognised as “mother” and “parent” on the child’s birth certificate. This change is retrospective in the sense that if a child is born before 1 June 2010 both women can be recognised on the birth certificate, provided that the father is not named on the birth certificate.[14]

Lavarch Inquiry

Former Attorney-General, Linda Lavarch, headed up a Parliamentary inquiry. Its terms of reference were to only deal with altruistic surrogacy. The committee was not charged with enquiring as to the benefits or detriments of commercial surrogacy.

In its issues paper the committee noted:

“In February 1983, the Queensland Government appointed a “special committee” to enquire into laws relating to artificial insemination; in vitro fertilisation (IVF); and other related matters, including surrogacy. The special committee, chaired by the Hon Justice Demack, reported in March 1984. It recommended that whilst altruistic surrogacy contracts should be void or legally unenforceable, entering into them should not be a criminal offence.”

However, the Queensland Parliament legislated to prohibit all forms of surrogacy in 1988. It was argued that:

· It was dehumanising to use and pay another human being to reproduce;

· Babies must not be used as commodities; and

· Queensland should seek to avoid the trauma and legal battles associated with surrogacy in other jurisdictions.

The issue was again canvassed by a Task Force on Women and the Criminal Code. In its report, released in 2001, the task force noted the range of community views on the matter. Although the task force was divided on some issues, it took a consensus view that the Surrogate Parenthood Act 1988 be amended to remove the sanction on altruistic surrogacy as:

· It was generally felt inappropriate and unhelpful to involve the criminal justice system in this intensely private matter between relatives and friends.

It also recognised that, if surrogacy agreements were to be permitted in Queensland, the extent to which they should be regulated would need to be addressed. The Government did not support the task force recommendations regarding surrogacy at that time. A review of surrogacy laws is currently occurring in a number of Australian jurisdictions.

On 14 February 2008, The Hon Anna Bligh MP, Premier of Queensland, tabled a briefing paper outlining a case for reform and stated that: “The Queensland Government believes the time has come to decriminalise altruistic surrogacy”. The Premier called for the establishment of this committee to further examine whether altruistic surrogacy should be decriminalised and what regulation might be desirable.”

The committee then went on to say in its issues paper:

“There are a number of factors influencing this renewed focus:

. Very few Australian born children are now available for adoption (only 14 locally born children were adopted in Queensland in 2006-07);

. There has been an increased use and social acceptance of infertility treatment or assisted reproductive technology (ART) over the last decade; and

. There is greater social recognition of the diversity of family types raising children, including extended, nuclear and blended families and families headed by single parents and same-sex couples.

Some of the impetus for reform also appears to have come from those concerned about a lack of legal recognition of parents and children in surrogacy arrangements. It is suggested that this can lead to practical difficulties, for example, in relation to passport applications, medical treatment, eligibility for child support if commissioning parents separate, eligibility for social security and taxation allowances and inheritance.”

I am about to refer to the surrogacy report at:

The Lavarch committee report[15] stated in part:

“This investigation into the decriminalisation regulation of altruistic surrogacy in Queensland has presented each member of the committee with significant philosophical and moral challenges. It has caused us to collectively reflect on the role of government in people’s lives. It has reminded us all of our responsibility as legislators in this State. The committee has agreed that the Queensland Government’s role should be to develop a legislative and regulatory framework which balances the protection of vulnerable people from harm with the promotion of liberty of consenting adults. The committee acknowledges its deliberations and these important matters have been noted by the advice received from a number of people with expertise in ethics and philosophy.

The committee is aware that not all Queenslanders may choose altruistic surrogacy for themselves or approve of it for others. However, for some people in Queensland society, altruistic surrogacy provides the only realistic opportunity to create a family. Over the last decade, on average, only eighteen children born in Queensland have been available annually for adoption. As trends in adoption, deferred family formation and infertility appear persistent, it seems sensible for the government to create an environment that maximises the possibility for success in having families created through altruistic surrogacy ….

The committee’s focus on informed consent through the careful preparation of the parties in the prevention of forced relinquishment aims to address identified risks whilst respecting the liberty of freely consenting adults. In developing its proposed regulatory approach, the committee has benefited from the work of previous inquiries in Victoria, South Australia, Western Australia and Tasmania. We have also learned much from the policy approach outlined in the Australian Capital Territory (ACT) Parentage Act 2004 and the procedures developed by the 2 fertility clinics, Canberra Fertility Centre and Sydney IVF, which have pioneered IVF surrogacy over the last decade in Australia. The development of the committee’s regulatory approach has also been enhanced by the information, advice and insights provided by a range of medical specialists, infertility counsellors, legal experts, researchers and policy officers in Queensland and interstate.

The committee has concluded that whilst prohibition may have dissuaded some, it has not prevented altruistic surrogacy occurring in Queensland … To promote the best interests of the child, the committee wants to ensure that children born of altruistic surrogacy are not stigmatised by the manner of the conception and not disadvantaged by the lack of legal recognition of their intending parents, for example, in terms of child support or inheritance. The committee’s proposal for a specific mechanism to enable the transfer of legal parentage is an expression of this principle.[16]

The recommendations of the committee included the following:

Recommendation 2: Significance of language

The committee recommends that the Queensland Government, when formulating legislation, guidelines and policy, uses the terms:

. “birth mother” to describe the surrogate mother;

. “intending parents” rather than “commissioning parents” to avoid the use of perceived dehumanised or commercialised language; and

. “altruistic surrogacy arrangement” rather than “agreement” to emphasise the altruistic nature of the endeavour.

Recommendation 3: Decriminalisation supportive of appropriate legislation and regulation

The committee recommends that the Queensland Government decriminalises altruistic surrogacy supported with an appropriate legislative and regulatory framework as described in later recommendations.

Recommendation 5: Defining altruistic surrogacy

The committee recommends that the Queensland Government defines altruistic surrogacy in the Surrogate Parenthood Act 1988 as: a clear arrangement, with a formal or informal, agreed pre-conception between consenting adults for the birth mother to bear a child for the intending parent/s and to permanently transfer the responsibility for the child’s care and upbringing to the intended parent/s after the child’s birth.

Recommendation 6: Further examination of traditional Torres Strait Islander “adoptions”

The committee recommends that the Queensland Government considers options for the recognition of traditional Torres Strait Islander “adoptions” [I note this was not taken up].

Recommendation 7: Reasonable expenses

The committee recommends that the Queensland Government ensures the appropriate legislation and/or relevant regulation:

. permits reasonable expenses for altruistic surrogacy as long as there is no material gain for the birth mother;

. defines categories of permitted expenses as follows: medical, legal, counselling, travel/accommodation, child care and insurance costs and lost earnings which are directly attributable to the altruistic surrogacy arrangement and not covered by existing entitlements or benefits. Paid maternity leave will be limited to a maximum of 2 months associated with the birth and additional leave during pregnancy where medically indicated; and

. clarifies that payment of reasonable expenses is not enforceable as part of altruistic surrogacy arrangements.

Recommendation 8: Prohibition of advertising and brokerage

The committee recommends that the Queensland Government prohibits advertising and brokerage for altruistic surrogacy.

Recommendation 9: Articulating policy principles

The committee recommends that the Queensland Government articulates five key policy principles supported by specific outcome statements in legislation to guide the regulation of altruistic surrogacy in Queensland. The best interests of the child are articulated under the committee’s first three proposed principles. The five principles are as follows:

. every child is nurtured, loved and supported;

. every child has access to his/her identity;

. every child enjoys the same status and legal protection irrespective of the circumstance of his/her birth or the status of the parent;

. the long-term health and wellbeing of the parties to a surrogacy arrangement and the families is promoted; and

. the autonomy of consenting adults in their private lives is respected.

Recommendation 10: Genetic connection with intending parents and birth mother

The committee concludes that it is desirable to pursue gestational surrogacy and it is desirable for at least one intending parent to contribute their gamets where possible. However, given the difficulties of accounting for people’s differing capacities and beliefs in relation to genetic connection, the committee recommends that the Queensland Government:

. avoids a prescriptive approach on genetic connection; and

. permits the use of the birth mother’s egg, donor gamets and donated embryos on accessing ART endorsed by the Surrogacy Review Panel on expert advice that:

(a) surrogacy is needed; and

(b) the parties are prepared for possible risks.

Recommendation 11: Genetic relationship and transfer of legal parentage

The committee recommends that the Queensland Government maintains the status quo where the birth mother is automatically recognised as the legal parent irrespective of her or the intending parents’ genetic relationship with the child.

Recommendation 12: Enhancing existing ART assessment and support processes

The committee recommends to the Minister for Health that Queensland Health enhance existing standards for assessment of support for altruistic surrogacy in ART services with provision for:

. psychosocial assessment which is independent from psychosocial support;

. further specification of the content and amount of independent psychosocial assessment counselling;

. provision of opportunities for counselling during pregnancy and after birth for the birth mother, her partner and intending parents;

. independent medical assessments for the birth mother and intending parents to assess health risks, need for surrogacy and any issues impacting on the capacity for long-term care of the child;

. specialist, independent legal advice by a qualified lawyer provided separately for the birth parents and intending parents;

. a legislatively based Surrogacy Review Panel appointed by Queensland Health including members with relevant experience in medicine, family law, ethics, psychosocial health and child development and a community representative to approve all applications for altruistic surrogacy and to inform the development of evaluation of ART standards in relation to altruistic surrogacy; and

. a three month cooling off period after approval by the Surrogacy Review Panel before proceeding with treatment.

The committee also recommends that the panel be sufficiently resourced to operate in a timely way and provide easy access to applicants across Queensland.

Recommendation 13: Support for the implementation of standards

The committee recommends to the Minister for Health that Queensland Health support the implementation of enhanced standards for altruistic surrogacy in the ART services by ensuring the agency:

. has relevant policy research expertise in relation to altruistic surrogacy; and

. supports relevant training and professional development opportunities for infertility counsellors, nurses and clinicians, members of the Surrogacy Review Panel and family law specialists in consultation with the ANZICA, fertility clinics, the Fertility Society of Australia and other experts.

Recommendation 16: Criteria for intending parents and birth mothers

The committee recommends to the Minister for Health that additional standards be developed under the Private Health Facilities Act 1999 to include criteria for intending parents and birth mothers seeking assistance from ART. The committee proposes:

. the intending parents and the birth mother and her partner have the capacity to enter an arrangement;

. have participated in independent psychosocial and medical assessment;

. have obtained separate legal advice from a qualified lawyer;

. intending parents demonstrate a need for surrogacy (due to medical infertility or an inability to carry a child or identified health risk);

. at least one intending parent is an Australian resident;

. the proposed pregnancy poses no significant health risk to the birth mother and she has experienced a previous successful pregnancy.

Recommendation 17: Rights of birth mothers to manage the pregnancy and birth

The committee recommends that the Queensland Government confirms that birth mothers engaged in altruistic surrogacy arrangement have the same rights to manage their pregnancy and birth as other pregnant women.

Recommendation 18: Unenforceability of surrogacy arrangements

The committee recommends that the Queensland Government ensures altruistic surrogacy arrangements remain unenforceable under State law.

Recommendation 19: Mechanism for transfer of legal parentage specific to altruistic surrogacy

The committee recommends to the Queensland Government that it:

. provides for the transfer of legal parentage for altruistic surrogacy under the Surrogate Parenthood Act 1988, the Status of Children Act 1978 or other suitable Act with the following conditions:

– the arrangement falls within the proposed legislative definition of acceptable altruistic surrogacy arrangements (ie it is non-commercial, made pre-conception and parties have reached legal adulthood);

– intending parents demonstrate a need for surrogacy based on advice from the Surrogacy Review Panel or a medical specialist or, in the case of traditional Torres Strait Islander “adoptions”, customary practices verified using a similar process to that used in the Family Law Court;

– the parties meet informed consent requirements including:

. the birth parent/s consent to the transfer of legal parentage;

. the child is resident with the intending parent/s;

. birth parents and the intending parents have received separate legal advice from a qualified lawyer; and

. all parties have undertaken post-birth counselling as evidenced by a report from an ANZICA counsellor or a suitably qualified psychologist, social worker or psychiatrist focusing on quality of informed consent, child’s right to information and ongoing communication between the parties;

– at least one of the intending parents is in an Australian resident;

– the approval of transfer is made no sooner than four weeks after birth and an application for transfer is made no later than six months after birth; and

– the transfer is considered in the best interests of the child;

. provides for the transfer of legal parentage for any existing altruistic surrogacy cases which fall outside the six month criteria for a two year period following the decriminalisation of altruistic surrogacy provided they meet all the other conditions detailed above; and

. ensure that applications for the transfer of legal parentage come under the jurisdiction of the Supreme Court.

Recommendation 22: Register of genetic information

The committee recommends that the Queensland Government:

. develops a central register to protect information of the child’s genetic parents and circumstances of birth in relation to altruistic surrogacy, having regard for the possible benefits of such a service for other children born of donor gamets;

. considers the relative merits of the placement of the register, having regard to possible synergies with ART regulation, within Queensland Health or with birth registration within the Register of Births, Deaths and Marriages; and

. supports the development of a national best practice approach to the operation of registers and birth certificates.

Recommendation 23: Ongoing support to health for intending parents

The committee recommends that the Queensland Government develops a strategy to:

. support parents of children born of altruistic surrogacy or gamet donation of all ages to “tell” them about their genetic parentage and circumstances of birth;

. promote the role of the register as proposed in Recommendation 22 and provide easy access to a child’s information; and

. facilitate the exchange of information between parties.

Recommendation 24: Advocating for Medicare funding

The committee recommends that the Queensland Government advocates the Australian Government to provide Medicare funding for altruistic surrogacy.

The Bills

Subsequently there were 2 Bills before State Parliament. The government and opposition bills were identical, save that the government bill included as intended parents same-sex couples and single people, and allowed for the registration of lesbian co-mothers on birth certificates (which was identified as an issue by the committee), but the opposition bill did not.

The government bill was passed. A conscience vote was allowed. The opposition, all the independents and two ALP members voted for the opposition bill. All other government members voted for the government bill.[17]

Surrogacy practice under the Surrogacy Act 2010

The Act has guiding principles in section 6:

(1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.

(2) Subject to subsection (1), this Act is to be administered according to the following principles–

(a) a child born as a result of a surrogacy arrangement should be cared for in a way that–

(i) ensures a safe, stable and nurturing family and home life; and

(ii) promotes openness and honesty about the child’s birth parentage; and

(iii) promotes the development of the child’s emotional, mental, physical and social wellbeing;

(b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of–

(i) how the child was conceived under the arrangement; or

(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or

(iii) the relationship status of the persons who become the child’s parents as a result of a transfer of parentage;

(d) the autonomy of consenting adults in their private lives should be respected.

The government did not accept the committee’s recommendation that there be a surrogacy review panel of similar nature to VARTA or the Western Australian regulator.

Like weight loss advertisements, the scheme under the Surrogacy Act has before and after elements from a legal perspective. I will below with surrogacy arrangements entered into on or after 1 June, 2010.

There are two key legal steps under the Surrogacy Act:

1. Before: Entry into the surrogacy arrangement.

2. After: Making of the parentage order.

Treatment can only commence once the surrogacy arrangement has been signed by all parties. The requirements of a parentage order application are not mandatory for treatment.

Requirements of an altruistic surrogacy arrangement

1. Not commercial surrogacy

Commercial surrogacy arrangements are prohibited.[18]

It is an offence to provide technical, professional or medical services for a commercial surrogacy arrangement to an intended surrogate before she has become pregnant. Section 58 provides:

“1. A person must not intentionally provide a technical, professional or medical service to another person if –

(a) the person knows the other person is, or intends to be, party to a commercial surrogacy arrangement; and

(b) the person provides the service with the intention of assisting the other person to become pregnant for the purposes of the arrangement. Maximum penalty – 100 penalty units or 3 years imprisonment.

2. A person does not commit an offence under ss.(1) if the person provides a technical, professional or medical service to a woman after she has become pregnant.”

I have had reports from clients of doctors advising intending parents to try their hand at commercial surrogacy clinics overseas. This behaviour, if true, would constitute an offence. The Criminal Code[19] makes plain that every person who enables or aids another person to commit an offence, or counsels or procures any other person to commit the offence also commits that offence.

It is also an offence for anyone to publish an advertisement, statement, notice or other material that they are agreeing to act as a birth mother or seeking a birth mother or willing to enter into a surrogacy arrangement.[20]

Although one would think that section 55 is intended to prevent advertisements, its reach is much wider. The section provides in subsection 2:

“Publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.” [emphasis added]

In theory, even talking to other people about a willingness to be a surrogate is an offence, although the clear intent of the legislation is otherwise.

A surrogacy arrangement is a commercial arrangement if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person –

(a) agreeing to enter into or entering into the surrogacy arrangement; or

(b) permanent relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or

Section 11 sets out the meaning of the birth mother’s surrogacy costs. As clearly set out in section 10, this is the key difference between whether a surrogacy arrangement is commercial or altruistic. Section 11 provides:

(1) A birth mother’s surrogacy costs are the birth mother’s reasonable costs associated with any of the following matters–

(a) becoming or trying to become pregnant;

(b) a pregnancy or a birth;

(c) the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.

(2) Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs–

(a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);

Example of a reasonable medical cost for paragraph (a)–

a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure

(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;

(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;

(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including–

(i) the cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or

(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;

(e) a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;

(f) the value of the birth mother’s actual lost earnings because of leave taken–

(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or

(ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds;

(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.

Examples of other reasonable costs for paragraph (g)–

travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth

travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court

(3) In this section–

legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.

medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.”

Nature of the arrangement

What is entered into concerns surrogacy. There is no distinction in the legislation preferring gestational surrogacy over traditional surrogacy. There is nothing within the Surrogacy Act that prohibits parties from entering into traditional surrogacy. I have clients who are proceeding with a traditional surrogacy. Doctors will not be engaged in that case until after the surrogate is pregnant.

Independent legal advice

The surrogate, referred to in the Act as the birth mother, and her spouse (if any) must before they sign the surrogacy arrangement have had independent legal advice.[22]

The intended parent/s also need to have independent legal advice before the surrogacy arrangement is signed.[23]

Counselling or pre-signing counselling

The birth mother and her spouse (if any) and the intended parent/s must before they sign the surrogacy arrangement have had counselling from an ANZICA member, a member of the RANZ College of Psychiatrists, a member of the AASW or a member of the Australian Psychological Society.[24]

The surrogacy arrangement must be made before the child was conceived. This provision is problematic when parties have frozen embryos that were obtained years ago and are now seeking to use them for the surrogacy.[25] There is no definition of conception. The Lavarch Committee considered that the arrangement should be signed before the surrogate is pregnant, but did not otherwise specify when conception occurred. Unfortunately there is no case law yet about conception and it is possible that a Children’s Court judge might find that conception occurred at the time of the fertilisation of the embryo. Counselling is not required for any donor. There is no difficulty with the same counsellor seeing all parties. There is no difficulty with the counsellor being associated with the clinic.

The then Attorney-General, Cameron Dick, who was responsible for moving this Bill through Parliament was of the view that “conception” was at the time of implantation.[26] This view is not binding in any sense upon a court.

Surrogacy arrangement needs to be written

The surrogacy arrangement needs to be signed by the birth mother, her spouse and the intended parent/s.[27] It does not need to be signed by any donor.

Generally not legally binding

Generally an altruistic surrogacy arrangement is not legally binding, except as regards the birth mother’s costs.[28]

Despite not being legally binding, the surrogacy arrangement ought to clearly set out:

(a) what the expectations of each of the parties are;

(b) why they are entering into the surrogacy arrangement. This point may be especially helpful in the parentage order application;

There is no requirement for parties to sign a surrogacy arrangement. The surrogacy arrangement is only required if the parties intend to seek a parentage order.[29]

Let the treatment begin

Once there is a surrogacy arrangement signed by all parties, then treatment can commence. It is not an offence to provide treatment before the surrogacy arrangement is signed, however the real risk is that the parties will not be able to obtain a parentage order and will blame the doctor and clinic for that (with professional indemnity issues) but worse, it may be that the arrangement was a commercial surrogacy arrangement which means the clinic, doctor and other staff may have committed a criminal offence. It is imperative that the clinic have a copy of the signed surrogacy arrangement before performing any treatment.

Step 2: Obtaining the parentage order[30]

There are a number of key steps that need to be taken to obtain the parentage order.

1. Child is born and handed over to the intended parent/s.[31]

2. Post 1 June 2010 surrogacy arrangements: application must be made within 28 days to 6 months of the child being handed into the possession of the intended parent/s. There is the ability to extend the time, with leave of the court, but this ought to be avoided.[32]

3. The order is for the wellbeing and the best interests of the child[33], this being the paramount consideration[34].

4. The intended parent/s make the application together.[35]

5. The birth mother and her spouse and any other birth parent all consent to the making of the parentage order.[36] The birth mother, until the time the order is made, remains the mother of the child, and therefore able to decide about the pregnancy, and whether or not she relinquishes the child.[37]

6. The birth mother and her spouse were at least 25 years when the surrogacy arrangement was made.

7. The intended parent/s were at least 25 years when the surrogacy arrangement was made and at the time of the application a resident in Queensland.[38] What is significant about this clause is that there is no requirement for the birth mother or her spouse to be resident in Queensland. Nor is there a requirement at the time of entering into the surrogacy arrangement that the intended parent/s reside in Queensland. They only have to reside in Queensland at the time of the hearing of the parentage order application.

8. A surrogacy guidance report has been obtained.[39] This report needs to be obtained from an independent counsellor, ie someone not associated with the clinic and who did not provide any counselling before the surrogacy arrangement was signed.[40]

9. There must be evidence of a medical or social need for the surrogacy arrangement.[41] In essence, whilst there might be evidence of medical need for any male intended parent (including any gay couples) social need is sufficient.

10. However, if a woman is an intended parent then there must be a medical need demonstrated for that woman. If it is a lesbian couple, then it needs to be shown for both.[42] This will be shown to the court by a report from the treating doctor of the intended parent/s. Evidently, treatment of the birth mother should not commence unless, in respect of any intended parent who is a woman, that there is a clear medical need. If there is also a social need in respect of that woman, that is a bonus, but the requirement is for a medical need.[43]

Section 14(2) provides:

(2) An eligible woman is a woman who–

(a) is unable to conceive; or

(b) if able to conceive–

(i) is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth; or

(ii) either–

(A) is unlikely to survive a pregnancy or birth; or

(B) is likely to have her health significantly affected by a pregnancy or birth; or

(iii) is likely to conceive–

(A) a child affected by a genetic condition or disorder, the cause of which is attributable to the woman; or

(B) a child who is unlikely to survive a pregnancy or birth; or

Treating doctors need to satisfy themselves that all women who are intended parents are eligible.

Documents required

The documents required to enable the parentage order application to be successful are:

· copy of the child’s birth certificate;

· copy of the surrogacy arrangement;

· supporting affidavits by the intended parents, birth mother, her spouse and any other birth parent;

· affidavits of each of the lawyers who gave advice before the surrogacy arrangement was signed;

· affidavit of the pre-signing counsellor;

· the surrogacy guidance report supported by an affidavit;

· an affidavit from an appropriately qualified medical practitioner verifying a report prepared by the medical practitioner as to why the applicant is an eligible woman.

Parentage order

A parentage order is made by the Children’s Court.[44]

Dispensation

There are some requirements that can be dispensed with by the court if there are exceptional circumstances and that the dispensation “will be for the wellbeing, and in the best interests of the child”.[45] There is also a dispensation if the birth mother or a spouse has died, loses capacity or cannot be located.[46]

Categories that can be dispensed with

. Requirement of the baby living with the intended parents for at least 28 consecutive days before the application was made and was living with them when the application was made and with them at the time of the hearing.

Example: the baby may be in hospital, but in the care of the intended parents.

. The intended parents have split up or one of them has died.[47] There is a lack of clarity in the drafting of that particular provision concerning when married couples are no longer a couple, which is unhelpful. There is a reference to “spouse” and also to “couple”. With de facto spouses, separation is the event marking their end as a couple. Separation is ordinarily seen when a married couple are no longer a couple, but it is the divorce when they are no longer legally spouses, and therefore a couple.

. There is evidence of medical or social need for the surrogacy arrangement.

. One or other of the parties had not obtained independent legal advice before signing the surrogacy arrangement.

. One or all of the parties had not obtained pre-signing counselling.

. The surrogacy arrangement is not in writing, or was not signed by all parties.

. The birth mother and her spouse were under 25 when the surrogacy arrangement was made.

. The intended parents were under 25 when the surrogacy arrangement was made.

. The intended parents at the time of the hearing of the parentage order application are not resident in Queensland.

The Act sets out an example:

“Example of exceptional circumstances for dispensing with the requirement under section 22(2)(g)(ii) – one of the joint applicants is temporarily residing outside Queensland because of work commitments but is still in a spousal relationship with the other joint applicant who is resident in Queensland.”

. One of the parties cannot consent to the parentage order application because they have died or cannot be located.

Case example

There has only been one reported case in Queensland: BLH & HN v SJW & MW[ 2010] QDC 439[48].

This was a surrogacy arrangement that was entered into between the parties when it was illegal, a child having been born on 11 May 2010, before the commencement of the Queensland Act. The intended parents were a gay couple. Judge Irwin made the parentage order. He was satisfied that the proposed order was for the wellbeing and in the best interests of the child. He gave as an example the child’s rights under succession law and in relation to financial support. He noted that the surrogate believed that the child would suffer social disadvantage if his birth certificate did not record the intended parents as his parents, for example, when enrolling the child in school or other activities or when making decisions in relation to his health and welfare, which would ordinarily be made by a recognised legal guardian.

As to medical or social need, his Honour stated:

“It is a purely altruistic arrangement designed to allow the applicants the opportunity to have a family. There is a medical or social need for the surrogacy arrangement as a result of the two intended parents being men.”

His Honour then went through the checklist of matters, satisfying himself.

New South Wales

NSW clients, but Qld doctors

Infertility doctors on the Gold Coast are licensed in Queensland. There is nothing to prevent them from assisting intended parents who live interstate, for example in the Tweed. A surrogate could be an overseas citizen. The surrogacy arrangement must, because doctors are providing treatment in Queensland, in my view as closely as possible comply with the provisions of the Surrogacy Act 2010 (Qld). The scheme of the Act provides that intended parents must reside in Queensland. If the intended parents reside in the Tweed, for example, they cannot apply for a parentage order in Queensland, but may be able to apply in their home State.

Any surrogacy arrangement therefore should comply with Queensland legislation and, so far as is possible, the interstate legislation. If the intended parents are from outside Queensland or New South Wales, then the clinic should consider obtaining advice first before proceeding with treatment. For example, a gay couple in Western Australia does not have an entitlement under the Surrogacy Act 2008 WA to obtain a parentage order.[49]

It is a quirk of our Federal system that if the intended parents live in the Tweed, but treatment was at the John Flynn Hospital, then the surrogacy application would have to be made in Sydney in the Supreme Court of New South Wales, not on the Gold Coast in the Children’s Court at Southport.

If the child were born in New South Wales then the parentage order would take effect with the New South Wales Registry of Births, Deaths and Marriages.

If the child were born in Queensland, then the parentage order would be made in the Supreme Court in Sydney, then sent to the Registry of Births, Deaths and Marriages in Sydney where it would then be transmitted to the Registry of Births, Deaths and Marriages in Brisbane, to be recorded on the Queensland birth certificate.

NSW History

The process of law reform commenced with the report undertaken by the Standing Committee on Law and Justice of the Legislative Council. It had terms of reference enquiring as to altruistic surrogacy and related matters.[50] The committee recommended that there be regulation of altruistic surrogacy. The majority of the committee was of the view that decisions relating to specific attributes of the individuals involved in the surrogacy arrangement or the type of surrogacy arrangement they wished to enter into are best made by those with the greatest knowledge and experience in this area, namely the clinicians and counsellors working in the field of surrogacy.[51]

The committee recommended that there be an explicit requirement that the assessment of parties seeking ART treatment to facilitate a surrogacy arrangement is conducted by a counsellor who is independent of any ART clinic. This would remove any perceived or actual conflict of interest that may exist for ART clinics if they were to provide the assessment themselves. The committee recommended that the need for a register of counsellors qualified to assess parties to surrogacy arrangement be examined, as this would assist parties to find an independent counsellor. Similarly, the committee recommended that there be an explicit requirement that parties entering into surrogacy arrangements obtain independent legal advice.[52]

The committee agreed with the need for surrogacy arrangements to be unenforceable, particularly the importance of the birth mother retaining the right and opportunity to change her mind in regard to relinquishing the child to the intending parents. The committee also agreed with the prohibition on commercial surrogacy, although it believed the definition of commercial surrogacy in the Assisted Reproductive Technology Act 2007 (NSW) need to be clarified as to “reasonable expenses” for reimbursement to the birth mother in an altruistic surrogacy arrangement.

Following a conscience vote the New South Wales Parliament passed the Surrogacy Act 2010, which took effect on 1 March 2011.

In broad terms, the scheme of the Act is the same as the Queensland Act. Commercial surrogacy arrangements are prohibited. It is an offence, punishable up to 2 years imprisonment, for a person to enter into or offer to enter into a commercial surrogacy arrangement[53] whether in New South Wales, or outside New South Wales including overseas if the person concerned is ordinarily resident or domiciled in New South Wales.[54] To encourage a client to consider attending an overseas commercial surrogacy clinic may well amount to a conspiracy to commit an offence under section 11.

Advertising of surrogacy arrangements is prohibited and is the subject of an offence, namely the person is willing to enter into a surrogacy arrangement or act as a birth mother but there are two clear differences to that in Queensland. The advertising is perfectly legal if the advertisement is not for a commercial surrogacy arrangement and “no fee has been paid for the advertisement, statement, notice or other material”.[55] Therefore advertising on a free website for a surrogate in an altruistic surrogacy arrangement is legal.

The definition of publish means “disseminate or provide access, by any means, to the public or a section of the public”.[56]

There is a transitional period for pre-commencement surrogacy arrangements to enable parentage orders to be made. I will deal below with surrogacy arrangements that have been entered into on or after 1 March 2011.

Step 1: Requirements of surrogacy arrangement

1. The surrogacy arrangement must not be a commercial surrogacy arrangement.[57]

2. The surrogacy arrangement must be entered into before conception.[58]

3. There is no definition of conception.

Of concern is that the definition of “surrogacy arrangement” includes that the agreement that the parentage of a child is to be transferred to another person is an agreement to the following effect (however expressed):

(a) an agreement to consent to a parentage order or an interstate parentage order being made in respect of the child so as to transfer parentage of the child to another person;[59] A parentage order in Queensland is such an order[60], as are orders made in the ACT, South Australia, Victoria and Western Australia.

4. The surrogacy arrangement must be altruistic.

5. There is a provision for the reasonable expenses of the surrogate to be met.[61] Unfortunately, although this provision in the Act generally was modelled on the Queensland provision, the relevant section is different to the equivalent section in the Queensland legislation.[62], although not different in substance. There would need to be compliance of the surrogacy arrangement with both sections in cross border cases.

6. The surrogacy arrangement must be in writing.[63]

7. There must have been pre-signing counselling. The requirement of this counselling is different from that in Queensland. In Queensland the counsellor can be a member of the AASW, ANZICA or the Australian Psychological Society.

In New South Wales the counsellor has to be qualified.[64] Regulation 6 of the Surrogacy Regulations 2011 provides that the counsellor must:

“(a) be a member of, or eligible for membership of, the Australia New Zealand Infertility Counsellors Association, and

(b) be familiar with any guidelines issued by the Australia New Zealand Infertility Councils Association and the National Health Medical Research Council that are relevant to the exercise of those functions.”

The people who obtain counselling who are required to have counselling are:

. the birth mother;

. the birth mother’s partner (if any);

. another birth parent (if any);

. the intended parents.[65]

If the intended parent is under 25 the counsellor must have been satisfied that the intended parent was of sufficient maturity to understand the surrogacy arrangement and its social and psychological implications.

8. Pre-signing legal advice. Each of the birth mother, her partner, other birth parent and the intended parents must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into it.[66] The legal advice obtained by the birth mother and her partner must be independent of that obtained by the intended parents.[67] Nothing is said about whether the other birth parent’s legal advice needs to be independent, so presumably it does not. However, in some circumstances an intended parent may be able to obtain a sole application (for example if the other parent has died or does not wish to proceed with the parentage order) in which case it is not necessary to show that the other intended parent received legal advice.[68]

9. The birth mother must be at least 25 when she signed the surrogacy arrangement.[69]

10. The intended parents need only be 18.[70] There is a general presumption that the intended parent must be 25 and if the intended parent is under 25 the court needs to be satisfied that the intended parent was sufficiently mature to understand the nature of the arrangement.[71]

Step 2: Obtaining a parentage order

Requirements

1. The birth mother and her partner must have received further counselling.[72] The counsellor must:

(a) hold the qualification conferred by university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and

(b) be a qualified psychologist, qualified psychiatrist or qualified social worker, and

(c) have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of relinquishing a child.[73] A qualified psychologist is someone registered as a psychologist in Australia or in New Zealand.[74] A qualified psychiatrist is a medical practitioner whose qualifications in psychiatry are recognised by the RANZ College of Psychiatrists.[75] A qualified social worker is a person who is eligible for membership of the AASW or the New Zealand Association of Social Workers.[76]

The best interests of the child

2. The court must be satisfied that making of the parentage order is in the best interests of the child.[77]

3. The ages and wishes of the child must be considered.[78]

4. A medical or social need must be demonstrated.[79] The definition used here is identical to that in Queensland.

5. All parties must consent, unless the birth parent has died or lost capacity to consent or cannot be located.[80]

6. The child must be living with the intended parent/s.[81]

7. The application must be made not less than 30 days after the child’s birth and not more than six months after birth.[82] By comparison Queensland’s requirement is 28 days after the child lives with the intended parents. This may be a significant difference in practice, for example with premature births.

8. An independent counsellor’s report must be obtained. This is what is called in the Queensland legislation as a surrogacy guidance report. The counsellor must not have been the counsellor who provided the initial counselling “is not, and is not connected with, a medical practitioner who carried out a procedure that resulted in the conception or birth of the child”.[83] The independent counsellor must:

(a) hold a qualification conferred by a university (whether it was in or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and

(b) be a qualified psychologist, qualified psychiatrist or qualified social worker, and

(c) have specialised knowledge, based on the person’s training, study or experience, that enables the person to give opinion evidence as to matters referred to in section 17 of the Act.[84]

Documents to be lodged

9. Information about the surrogacy arrangement must have been provided to the Department of Health for the central register.[85]

10. The New South Wales Act does not provide for the documents to be lodged with the court but no doubt they would be very similar to those required for Queensland so that the evidence can be established of each point. There is not the same discretionary ability to dispense with certain requirements.

11. The birth certificate must have been obtained.[86] The only dispensation: the intended parents must be resident in New South Wales at the time of the hearing of the application.[87]

Victoria

Victorian Law Reform Commission Report [88]

The report (2004) compared legislation in various jurisdictions. The report writers stated[89]:

“Selection of the various options for reform of the law on surrogacy requires a policy decision as to whether the practice should be prohibited, tolerated or facilitated.

If the practice is to be prohibited, all surrogacy arrangements will be made illegal and criminal penalties imposed on the parties and those who assist them.

Alternatively, only commercial arrangements might be prohibited … there seems to be no basis from which to challenge the view that trading in the reproductive capacities of women and men and the exploitation of women for commercial ends is objectionable. Should this conclusion be accepted, however, it is still necessary to decide whether it is permissible for a surrogate mother to be reimbursed for the reasonable expenses associated with her pregnancy.

If commercial arrangements are prohibited, then the next option to be considered is that altruistic arrangements should be tolerated, but not authorised by the law. Such a stance can be reinforced by a legislative provision declaring all surrogacy contracts to be unenforceable. A corollary of this approach would be that the commissioning parents would have no certainty that their intentions will be realised. They would be obliged to adopt the child in order to become the legally recognised parents.

Alternatively, provision could be made to recognise altruistic surrogacy arrangements after the birth of the child, in strictly limited circumstances. The essential feature of this model is that it allows recognition of the parties’ intentions if, after the child’s birth, a court is satisfied that it is appropriate to make a parentage order in favour of the commissioning parents.

The final option is the enactment of provisions expressly authorising regulating surrogacy arrangements. To take this course is to allow the law to display a positive attitude to this arrangement, while at the same time ensuring that certain conditions will be met by the contracted parties. These conditions relate to such matters as the fitness of the commissioning parents and the protection of the surrogate mother’s interests. By imposing requirements of this kind, the law can define and limit the circumstances in which the parties’ intentions will be realised. If this approach is employed, further legal intervention is unnecessary and the commissioning parents will be acknowledged as the parents of the child born to a surrogate mother.”

In 2007 the Victorian Law Reform Commission issued its final report.[90] Amongst the 132 recommendations of the Law Reform Commission were these regarding surrogacy:

Surrogacy Expenses

121. A woman must not receive any material benefit or advantage as the result of an arrangement to act as a surrogate mother.
122. Consistent with the principle that a woman should not receive any material benefit or advantage for acting as a surrogate mother, reimbursement of prescribed payments actually incurred should be permitted.
123. Prescribed payments should be limited to:
• any reasonable medical expenses associated with the pregnancy which are not otherwise provided for through Medicare, private health insurance or any other benefit
• in the absence of any entitlement to paid maternity or other leave, lost earnings up to a maximum period of two months
• any additional lost earnings or medical expenses incurred as a result of special circumstances arising during pregnancy or immediately after birth, for example, where the surrogate mother has been advised by her doctor that she should stop working earlier than anticipated
• any reasonable legal expenses associated with the surrogacy arrangement.

124. Surrogacy agreements should continue to be void. However, where parties to a surrogacy arrangement have agreed to the reimbursement of prescribed payments, that part of the agreement should be enforceable.

Surrogacy and Parentage

Legal Process
125. The Status of Children Act 1974 should be amended to empower the County Court to make substitute parentage orders in favour of a person or couple who have commissioned a surrogacy arrangement (the applicant(s)), subject to the conditions that:
• the court is satisfied that the order would be in the best interests of the child
• the application was made no earlier than 28 days and no later than six months after the birth of the child
• at the time of the application, the child’s home is with the applicant(s)
• the applicants have met the eligibility criteria for entering into a surrogacy arrangement
• the surrogate mother and/or her partner (if she has one) has not received any material advantage from the arrangement save for reimbursement of expenses permitted by the legislation
• the surrogate mother freely consents to the making of the order.

126. In deciding whether to make a substitute parentage order, the court should also take into consideration whether the surrogate’s partner (if she has one) consents to the making of the order.
127. If the application is made by a person whose partner consented to the arrangement before the child was conceived but has not consented to the application for a substitute parentage order, there should be a presumption that that person will also become a legal parent of the child.
128. A substitute parentage order should have the same status and effect as an adoption order made under the Adoption Act 1984.

Completed Surrogacy Arrangements
129. The court should have discretion to make substitute parentage orders in favour of people who have already had children through surrogacy. In exercising its discretion, the court should be satisfied that:
• the order would be in the best interests of the child
• the child’s home is with the applicants
• the applicants have to the extent possible met the eligibility criteria for entering into a surrogacy arrangement
• the surrogate mother and/or her partner (if she has one) has not received any material advantage from the arrangement, save for reimbursement of expenses permitted by the legislation
• the surrogate mother freely consents to the making of the order.

Birth Certificates
130. Once a substitute parentage order has been made, the birth register should be amended to record the commissioning parent(s) as the parents of the child and a new birth certificate should be issued.

Providing Information
131. The central register maintained under the Infertility Treatment Act 1995 should be expanded to allow identifying information about a surrogate mother and commissioning parent(s) to be registered and released to the child in the same way as information about donors is registered and released.

132. The commissioning parent(s) and the surrogate mother should be counselled about the importance of informing children of their genetic origins and the circumstances of their birth. They should be provided with ongoing counselling and support to enable them to inform children about their origins.

Assisted Reproductive Treatment Act 2008

This Act commenced on 1 January 2010. Unlike the scheme adopted in New South Wales and Queensland of a surrogacy arrangement followed by a parentage order, Victoria requires approval before any surrogacy arrangement by the Patient Review Panel.[91]

Matters required for approval by the Patient Review Panel

Unlike Queensland and New South Wales which require a written, formal surrogacy arrangement which presumably has been drafted by lawyers, Victoria does not. “Surrogacy arrangement” is defined as meaning:

“an arrangement, agreement or understanding, whether formal or informal, under which a woman agrees with another person to become or try to become pregnant, with the intention –

(a) that a child born as a result of the pregnancy is to be treated as a child, not of her, but of another person or persons (whether acquired by adoption, agreement or otherwise); or

(b) by transferring custody or guardianship of a child born as a result of the pregnancy to another person or persons; or

(c) that the right to care for a child born as result of the pregnancy be permanently surrendered to another person or persons.”

To have the surrogacy arrangement approved, the following is required under section 40:

1. The doctor is of the view that:

(a) the commissioning parent is unlikely to become pregnant, be able to carry a pregnancy or give birth; or

(b) if the woman is likely to place her life or health or that of the baby at risk if she becomes pregnant, carries a pregnancy or gives birth.[92]

2. The surrogate mother’s oocyte will not be used in the conception of the child. Victoria is clearly stating that traditional surrogacy cannot take place, that the surrogacy must be gestational.

3. That the surrogate mother has previously carried a pregnancy and given birth to a live child. [By comparison, this is a requirement of some overseas jurisdictions. I understand it is the practice requirement of both Sydney IVF and the Canberra Fertility Clinic. It is not the requirement of other clinics in Queensland as far as I am aware.]

4. That the surrogate mother is at least 25.

5. That the commissioning parent, surrogate mother and the surrogate mother’s partner, if any, have received counselling and legal advice. The counselling must occur before the surrogacy arrangement is entered into and must be by a counsellor providing services on behalf of a registered ART provider, about the social and psychological implications of entering into the arrangement, including counselling about prescribed matters.[93] Further they are required to undergo counselling about implications of relinquishment and the relationship between the surrogate and the child once it is born. They are also required to “obtain information about the legal consequences of entering into the arrangement”. This is a curious turn of phrase and does not necessarily mean that the parties have to obtain independent legal advice, although of course that is preferable. The matters to be covered in counselling are prescribed in Section 9 of the Assisted Reproductive Treatment Regulations 2009[94]. Commissioning parent is not defined. The Act is clear in including single people and not being discriminatory against same-sex couples.

6. A surrogate mother must not receive any material benefit or advantage as a result of a surrogate arrangement. There is a maximum penalty of 2 years imprisonment.[95] The surrogate can be reimbursed her prescribed costs ‘actually incurred’ as a direct consequence of entering into the surrogacy arrangement.”

Those prescribed costs are[96]:

(a) any reasonable medical expenses associated with the pregnancy or birth that are not recoverable under Medicare, health insurance or another scheme;

(b) any legal advice obtained for the purpose of section 43(c) of the Act (ie before the matter goes to the Patient Review Panel);

Numerous other costs that are allowed in New South Wales and Queensland are not allowed in Victoria. For example in Queensland there is an open ended list of what can be paid provided that it is “reasonable”. Examples of expenses that can be included not mentioned in the Victorian list are:

. a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;

. reasonable cost of counselling;

. the value of the birth mother’s actual lost earnings not greater than 2 months;

. other legal costs associated with the surrogacy arrangement and parentage and transfer of parentage.

There is a prohibition on certain publications by section 45:

45. Prohibition on certain publications

(1) A person must not publish, or cause to be published, a statement,

advertisement, notice or document-

   (a)  to the effect that a person is or may be willing to enter into a

        surrogacy arrangement; or

   (b)  to the effect that a person is seeking another person who is or may be

        willing to enter into a surrogacy arrangement or to act as a surrogate

        mother or to arrange a surrogacy arrangement; or

   (c)  to the effect that the person is or may be willing to arrange a

        surrogacy arrangement; or

   (d)  to the effect that a person is or may be willing to accept any benefit

        under a surrogacy arrangement, whether for himself or herself or for

        another person; or

   (e)  that is intended or likely to counsel or procure a person to agree to

        act as a surrogate mother; or

   (f)  to the effect that a person is or may be willing to act as a surrogate

        mother.

Penalty: 240 penalty units or 2 years imprisonment or both.

(2) In this section-

publish means-

   (a)  publish in any newspaper; or

   (b)  publish by means of television, radio or the Internet; or

   (c)  otherwise disseminate to the public.

Unlike NSW or Queensland, there is no extra-territorial prohibition in Victoria about commercial surrogacy.

There does not appear to be any offence to advise a Victorian resident by a doctor practising in Victoria that an option might be to attend an overseas commercial surrogacy clinic.

7. The parties are prepared for the consequences if the arrangement does not proceed in accordance with the parties’ intentions, including –

(1) the consequences if the commissioning parent decides not to accept the child once born; and

(2) the consequences if the surrogate refuses to relinquish the child to the commissioning parent.

8. The parties are able to make informed decisions about proceeding with the arrangement.

Before the Patient Review Panel makes a decision it must have regard to a report from the counsellor and an acknowledgement by the parties that they have undergone counselling and obtained legal advice as required.

The Patient Review Panel is entitled to approve a surrogacy arrangement where it does not comply if there are exceptional circumstances as reasonable to approve the arrangement.[97]

Further steps prior to treatment

Five further steps:

1. A criminal records check is undertaken.[98]

2. A child protection order is undertaken.[99]

3. The commissioning parents, the surrogate and her partner must sign the prescribed form for the undertaking of the procedure.[100]

4. That with any commissioning parent who is a woman (and if a lesbian this is both women) a doctor must be satisfied on reasonable grounds that in the woman’s circumstances, the woman is unlikely to become pregnant other than by a treatment procedure or the woman is unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure or the woman is at risk of transmitting a genetic abnormality or genetic disease to a child born as a result of a pregnancy conceived other than by a treatment procedure, including a genetic abnormality or genetic disease for which the woman’s partner is the carrier.

A presumption against treatment does not apply to the surrogate or any commissioning parent who is a woman. The presumption against treatment is if a criminal record check specifies that a charge has been proven against a woman or a partner for a sexual offence referred to in clause 1 of schedule 1 to the Sentencing Act 1991 (child’s sex offences rape, indecent assault and such like), or that the woman or a partner has been convicted of a violent offence referred to in clause 2 of schedule 1 to the Sentencing Act 1991 (amongst others murder, manslaughter, child homicide, threats to kill, kidnapping, grievous bodily harm).

5. A child protection order check specifies that a child protection order has been made removing a child from the custody or guardianship of the woman or a partner.

Court application

The Status of Children Act 1974 governs the court process. Application is made to the Supreme or County Courts.[101]

The requirements of the application for a substitute parentage order are[102]:

· Copy of the birth certificate is required

· Child was conceived in Victoria

· Commissioning parents must be living in Victoria at the time of the making of the application

· The application must be filed not before 28 days before and not 6 months after the child is born (and a longer period if leave is obtained).

· That the child was living with the commissioning parents when the application was made.[103]

· If the parties did not go to a registered ART provider, the surrogate must be at least 25, and the surrogate, her partner (if her partner is a party to the arrangement)and the commissioning parents must have had counselling and legal advice.[104] It is clear that Victoria does not compel the surrogate’s partner to be a party to the arrangement, although that would be the usual approach.

· An order is in the best interests of the child.[105]

· The surrogate consents to the arrangement, as does her partner if her partner is also a party to the arrangement. [106]

· The Patient Review Panel has approved.[107]

· That it is not a commercial surrogacy arrangement.[108]

There are provisions for dispensation of consent of the surrogate and her partner in case of loss of capacity, death or disappearance.[109]

Summary

Each of the Queensland, NSW and Victorian laws at first blush set out a scheme to deal with altruistic surrogacy. Unfortunately, each has its own procedures which appear to make the process unnecessarily difficult, especially with cross-border issues, or for clinics like City Fertility Centre that operate across State boundaries.

Stephen Page

Harrington Family Lawyers

www.harringtonfamilylawyers.com

Phone: 61 7 3221 9544

Fax: 61 7 3221 9969

Stephen was admitted as a solicitor in 1987. He has practised wholly or predominantly in family law since then. He has been an accredited family law specialist since 1996 and is a partner of Harrington Family Lawyers.

Stephen authors:

· Australian Divorce Blog http://australiandivorce.blogspot.com

· Australian Gay & Lesbian Law Blog http://lgbtlawblog.blogspot.com

· Australian Surrogacy and Adoption Blog http://surrogacyandadoption.blogspot.com

He is also a keen tweeter: http://twitter.com/stephenpagelaw.

[1] Partner, Harrington Family Lawyers, accredited family law specialist.

[2] Genesis 16: story of Sarah and Abraham, Hagar being the surrogate

[3] S.3.

[4] S.7

[5] S.7

[6] S.7

[7] S.43

[8] Territorians, however, have relied upon their ART services being provided by South Australian licensed doctors.

[9]

[10] SMH 8/11/06

[11] SMH 8/11/06, Sunday interview with Laurie Oakes 1/4/07, The Australian 13/4/07

[12] S.3 Surrogate Parenthood

[13] S.63

[14] Births, Deaths and Marriages Registration Act 2003 Qld, s.10A

[15] www.parliament.qld.gov.au/view/committees/documents/SURROGACY/Report.pdf

[16] Introduction

[17] Hansard 11/2/10, I was also present and witnessed the vote.

[18] Section 56. This applies both in Queensland and to those ordinarily resident in Queensland engaging in commercial surrogacy arrangements overseas: s. 54. See also: s. 22(2)(e)(vi).

[19] Section 7.

[20] Section 55.

[21] Section 10.

[22] Section 22(2)(e)(i)(A).

[23] Section 22(2)(e)(i)(B).

[24] S.19, and Section 22(2)(e)(ii) Section 22(2)(e)(vi)??..

[25] Section 22(2)(e)(iv).

[26] Letter to the writer 16/11/10.

[27] Section 22(2)(e)(v).

[28] S.15.

[29] Cf see note to s.7.

[30] S. 22(2).

[31] S. 22(2)(b).

[32] S.22(2)(b).

[33] S. 22(2)(a).

[34] S.6.

[35] S. 22(2)(c).

[36] S. 22(2)(h).

[37] Ss. 16, 17; Status of Children Act 1978 Qld

[38] S. 22(2)(g).

[39] S. 22(2)(i) section 32.

[40] S. 32, 19.

[41] Section 22(2)(d).

[42] S.. 14(1)(b)(iii), 14(2).

[43] S. 14.

[44] Section 13. It provides for the transfer of custody and guardianship from the birth mother (and her spouse if any) to the intending parent/s and alters the details on the birth registry so that the intending parents will be shown as the parents of the child.

[45] Section 23(2).

[46] Section 23(3).

[47] Section 21(5).

[48] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QDC/2010/439.html

[49] S.19

[50] http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/6468d3af7b117a6cca2575c3000883d6/$FILE/090525%20Final%20Report%20-%20Legislation%20on%20altrusitic%20surrogacy%20in%20NSW.pdf

[51] Page 14 report.

[52] Page 14 report.

[53] Section 8.

[54] Section 11.

[55] Section 10(2).

[56] Section 10(3).