With their eyes wide open…
Wednesday, August 17, 2011
Last week I presented to Dr Glenn Sterling and his colleagues and staff at Life Fertility Clinic in Brisbane…
With Their Eyes Wide Open
Presentation to Life Fertility Clinic
11 August, 2011
by Stephen Page
Partner, Harrington Family Lawyers[1]
Partner, Harrington Family Lawyers[1]
Introduction
Queensland, like all the other States and Territories, has recently legislated to allow and to regulate altruistic surrogacy. It does so in the Surrogacy Act 2010 Qld. Commercial surrogacy remains illegal. This paper will describe how we got to the Surrogacy Act 2010 and a guide to some key provisions of that Act.
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 Walesis 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 three 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.”
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
Section 6 of the Act states that there are guiding principles:
“(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;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(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 deal 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 ss.2:
“Publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.” (emphasis added)
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
(c) consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.[21]
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]
Typically, the counsellor will be both an ANZICA member who is also a member of the Australian Psychological Society. In one of my recent cases, one of my clients was a psychologist who objected to attending another psychologist for counselling. I arranged for the parties, instead, to attend upon a social worker who is a member of the AASW for their counselling.
Counselling is not required for any donor, according to the Act. However, that counselling will be required in any gestational surrogacy, due to the requirements of the NHMRC Ethical Guidelines[25]. There is no difficulty with the same counsellor seeing all parties. There is no difficulty with the counsellor being associated with the clinic.
Before conception
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.[26] 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. 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.[27] 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.[28] 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.[29]
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;
(c) all parties were at least 25 years old when the surrogacy arrangement was made.
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.[30]
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[31]
There are a number of key steps that need to be taken to obtain the parentage order.
1. The child is born and handed over to the intended parent/s.[32]
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.[33]
3. The order is for the wellbeing and the best interests of the child[34], this being the paramount consideration[35].
4. The intended parent/s make the application together.[36]
5. The birth mother and her spouse and any other birth parent all consent to the making of the parentage order.[37]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.[38]
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.[39] 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.[40] 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.[41]Typically, it will be organised by the solicitor for the intended parents. Because of the need for independence, it is not organised by the clinic.
9. There must be evidence of a medical or social need for the surrogacy arrangement.[42] 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 the intended parents are a lesbian couple, then it needs to be shown for both.[43] 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.[44]
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
(C) a child whose health is likely to be significantly affected by a pregnancy or birth.”
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.[45]
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”.[46] There is also a dispensation if the birth mother or a spouse has died, loses capacity or cannot be located.[47]
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.[48] 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 not 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[49].
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.”
Interstate clients, but Queensland 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.
Example
Barney and Betty live in Tweed Heads. Betty is a patient of Life Fertility. Betty is unable to carry a pregnancy to term. Fred and Wilma, Barney and Betty’s friends across the road in Coolangatta offer to help Barney and Betty achieve their aim of parenthood by Wilma being a gestational surrogate. There would be no impediment to Life Fertility providing surrogacy services to Wilma. Barney and Betty however could not obtain a parentage order in Queensland, but would need to obtain one from the Supreme Court of NSW in Sydney. The form of the surrogacy arrangement would need to comply with the Surrogacy Act 2010 NSW, and also have to comply with the Surrogacy Act 2010 Qld. It would need to comply with the NSW Act so that a parentage order could be made in NSW. It would need to comply with the Queensland Act so that there was no issue that anyone in Queensland was engaged in offences relating to commercial surrogacy.
If the child, Bam Bam, were born in Queensland, then an order would be made in the Supreme Court of NSW, transmitted to the Queensland Registrar of Births, Deaths and Marriages. The birth certificate would then be altered to show the parents of Bam Bam as Barney and Betty.
Any surrogacy arrangement 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.
Example
Bill and Ben are a gay couple in Western Australia. Their good friend, Little Weed, who lives in Brisbane, offers to be their gestational surrogate. Bill and Ben, being a gay couple in Western Australia, do not have an entitlement under the Surrogacy Act 2008 WA to obtain a parentage order.[50]It is not an offence for them to enter into surrogacy arrangements outside Western Australia. Little Weed would be eligible to obtain surrogacy treatment in Queensland.The surrogacy arrangement would need to comply with the Surrogacy Act 2010 Qld, primarily to show that the surrogacy is altruistic, not commercial. As Bill and Ben reside in Western Australia, they cannot obtain a parentage order in Queensland. Because they are not eligible to obtain a parentage order in Western Australia, they cannot obtain one there either. Bill and Ben cannot adopt in Queensland. They may be able to adopt in Western Australia. If for some reason they cannot adopt in Western Australia, they may have to apply to the Family Court of Australia in Brisbane, or the Family Court of Western Australia in Perth for parenting orders. If they do so, there may be complications. Even if they were to obtain a parenting order from the Family Court, Little Weed would be shown as the mother of the child, and would be potentially liable to pay child support.
Practical issues
I just wanted to set out some practical issues that have arisen since the enactment of the Surrogacy Act 2010:
1. There may be no conception.
Intended parents who have been trying for many years to fall pregnant, get excited when, through the possibility of surrogacy, they might be able to fulfil their age old dream of having children. Their excitement levels increase through the chicanes of legal advice, attending the clinic, discussions with the surrogate and her partner, and attending counselling. Suddenly it all has a certain inevitability about it. Because all of these steps have happened, no longer is having a child a mere chimera, but is real. These couples need to be alerted to the possibility that things might go wrong (they have figured most of these out before coming in to see me), and especially that the surrogate might not fall pregnant- something that they had not even contemplated.
2. Counselling and more counselling.
Although the Surrogacy Act 2010 only requires counselling before signing up, and a report after the child is born, in my view much more counselling should take place. I would endorse the approach taken by the Canberra Fertility Clinic, and in turn endorsed by Michael Condon of Queensland Fertility Group of counselling at 12, 28, 35 weeks of pregnancy, and 6-8 weeks post-partum, and 3, 6, 12 months after delivery and that “that the patient or surrogate is able to contact the clinic nurse or counsellor at any time if concerned.”[51]
3. Share and share alike.
It is important that the parties to the surrogacy arrangement build up trust and confidence between them. This includes basics such as knowing their respective relevant medical histories. Without such basic information, trust cannot be built. Without trust, the arrangement is likely to lead to a disaster.
4. It’s easier to catch flies with honey than with vinegar.
Lawyers dealing with surrogacy arrangements need to take a different approach to that traditionally taken by family lawyers. In essence lawyers need to take a collaborative approach. I do not mean through the strictures of a collaborative law agreement. What I mean is that the process of obtaining a child through surrogacy is ultimately a cooperative one, built on layers of trust that will hopefully last the lifetime of each of the players. It is very easy for a lawyer, in the zealous protection of that lawyer’s clients, to sow distrust, which ultimately may well be severely to the detriment of any child and of the other players.
The role of a lawyer is in my opinion to balance not only the protection of the client’s interests (which of course is a lawyer’s duty and primary focus), but also act in a spirit of trust, cooperation and collaboration.
Surrogacy is a process of love in which a baby is hopefully conceived and born. It is easy for lawyers to destroy that love.
The process of altruistic surrogacy is an uneasy mixture of the practice of law, IVF technology, counselling, human emotions and the natural process of pregnancy and childbirth. Mixed into this brew, is often the pent up desire of many years of frustration and cost on the part of the intended parents, together with the desire of friends or family to provide them with the joy of a child.
Some intended parents have tried for many, many years to conceive a child. Following unsuccessful attempts au naturel, they may have tried IVF for 15 years. To put that into perspective, they might have tried to conceive a child from the ages of 22 to 38, before trying surrogacy. The attempts to conceive a child, with its rollercoaster of hardship, has in many ways dominated their relationship. The process in which these clients have been through can be a soul destroying one. Lawyers need to be aware of the potential harmful impact of their views and actions in dealing with such sensitive matters.
5. Don’t forget the cycle
One of the curious features about surrogacy is that the timetable of the parties is often predicated on the surrogate’s cycle, so as to maximise the chances of pregnancy. Lawyers should expect to turn around work quickly.
6. Clients talk
Family lawyers have all had cases where two warring family law clients talk to each other, sometimes comparing the advice of each of their lawyers, and at other times comparing the bills. With surrogacy, the intended parents talk to each other about the process. It is not unusual for all of the parties to attend each lawyer, at least initially. What is necessary about this process is to be absolutely clear about who is and who is not the client, and about the potential waiver of privilege.
It is not uncommon that there might be a difference of opinion between lawyers about legal issues. Surrogacy is a new area of the law, and with any new area of the law, grey areas of uncertainty abound. I normally become aware of the different views of the other lawyer when my clients tell me what the other lawyer has advised the other parties. I adopt a practice of trying to resolve the difference with the other lawyer, not inflame it.
7. Medical appointments
In my view, the intended parents should, as far as is possible, attend the medical appointments of the surrogate, and should be at the birth.
8. There are hospitals, and hospitals.
Just as I had not expected to be thinking about when life begins when I entered legal practice, nor had I expected to be discussing choices of hospitals. Hospitals are still getting their heads around whether or not they will facilitate surrogacy births. Issues for me are: whether or not the intended parents can attend the birth, whether the intended parents can stay alongside the baby, whether the hospital will recognise the role of the intended parents when providing care to the baby at hospital, such as holding and bathing the baby, and whether the baby can leave the hospital before the surrogate is able to.
9. To feed, or not to feed.
It is important that the issue of breastfeeding is discussed. Is the child to be breastfed, or bottle fed? Is the intending mother to take medicine to enable her to breast feed? Is there an issue with enabling a bond to develop between the surrogate and the child by allowing breast feeding?
10. Working together in harmony
Because the process of surrogacy is a process driven by love, it is important in my view that the various professionals working during that process: doctors, nurses, clinical staff, lawyers and counsellors, do so- subject to their own professional duties– in as harmonious manner as possible. It is one thing for anxious clients to unwittingly create dissension, it is another for us to heap that unnecessarily upon them. I sometimes call this the doctor/lawyer twostep: each of us is engaged in a part of the dance for the same clients.
11. It may not be happily ever after.
I have at times been chided by clients for giving them the bad news of what can go wrong with a surrogacy arrangement: medical possibilities, relationship issues and legal issues. They wanted me to tell them only the good news. Of course, as I explained, my obligation is to set out not only the good news, but what can go wrong. It is my duty to do so. If I breach that duty, as I explained to them, then they could sue me. I said that all I wanted was for my clients (whether intended parents or the surrogate and her partner) to consider carefully as to whether it is a good idea for them to enter into the surrogacy arrangement, with all that flows from that, and if they do decide to do so, that they do so with their eyes wide open.
Summary
Surrogacy practice is a new area of medical and legal practice. It remains an uncertain area of the law, in which the ship of good intentions may founder on the rocks of uncertainty. Doctors and lawyers should work as closely as they can, subject to their differing professional duties and obligations, to assist their mutual clients achieve the aim of parenthood.
Stephen Page
Harrington Family Lawyers
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, a boutique family law firm in Brisbane. Stephen is a member of various professional bodies, including the Fertility Society of Australia. Stephen has assisted clients from throughout Australia and overseas about surrogacy.
[1]Stephen Page is an accredited family law specialist. Admitted in 1987, is author amongst others of the Australian Gay & Lesbian Law Blog http://lgbtlawblog.blogspot.com and the Surrogacy & Adoption Blog http://surrogacyandadoption.blogspot.com.
[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.
[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
[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]National Health and Medical Research Council, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research, 2007, guideline 9.3. See also chapters 6 and 7.
[26]Section 22(2)(e)(iv).
[27]Letter to the writer 16/11/10.
[28]Section 22(2)(e)(v).
[29]S.15.
[30]Cf see note to s.7.
[31]S. 22(2).
[32]S. 22(2)(b).
[33]S.22(2)(b).
[34]S. 22(2)(a).
[35]S.6.
[36]S. 22(2)(c).
[37]S. 22(2)(h).
[38] Ss. 16, 17; Status of Children Act 1978 Qld
[39]S. 22(2)(g).
[40]S. 22(2)(i) section 32.
[41]S. 32, 19.
[42]Section 22(2)(d).
[43]S.. 14(1)(b)(iii), 14(2).
[44]S. 14.
[45]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.
[46]Section 23(2).
[47]Section 23(3).
[48]Section 21(5).
[50]S.19
[51]Condon, M, Surrogacy Counselling, presentation to Fertility Nurses Australasia, May, 2011.
