Yesterday I delivered a paper for the LexisNexis family law summit in Brisbane. Here it is:
PROCEDURES UNDER THE SURROGACY
ACT 2010:
The role of lawyers
LEXIS NEXIS 9th
ANNUAL FAMILY LAW SUMMIT
BRISBANE
7 June 2012
by
Stephen
Page[1]
Harrington
Family Lawyers
1. Concepts
1.1
What is surrogacy?
Surrogacy is when a woman agrees
to be pregnant and carries someone else’s baby until birth. In this paper I will use two internationally
accepted terms: “surrogate”- although
the Surrogacy Act 2010 (Qld) refers
to “birth mother”, and “intended parents” – although the Surrogacy Act refers to “intending parents”.
1.2
Traditional surrogacy
This occurs where the surrogate
is genetically the mother of the child.
In the past the child would have been conceived naturally. More recently, artificial insemination has been
used via a syringe or a turkey baster.
Traditional surrogacy is legal in Queensland, but will not be
facilitated by an IVF clinic. Doctors
however render assistance after the surrogate is pregnant. Traditional
surrogacy is not recommended.
1.3
Gestational surrogacy
The surrogate has no genetic relationship
to the child. She is merely the
surrogate. IVF is used to ensure that
conception occurs. Gestational surrogacy necessitates the use of an IVF clinic.
The egg and sperm may not be that of the
intended parents. There is no
prohibition in Queensland to use both donor egg and sperm. In reality it may be very difficult to use a
donor egg as delays of between 2 and 7 years have been cited as to the waiting
list for donor eggs.
1.4
Altruistic surrogacy
The surrogate acts as surrogate
through a sense of altruism. It is to be
contrasted with commercial surrogacy.
Altruistic surrogacy is legal in Queensland and, provided it is legal
elsewhere, for a Queenslander to participate in it elsewhere. There is a form of regulation of altruistic
surrogacy under the Surrogacy Act 2010
(Qld).
1.5 Commercial surrogacy
Typically the surrogate is paid a
commercial fee. A brokerage may be
involved. Commercial surrogacy is
available in India, Thailand, and parts of the United States. It is illegal here for anyone ordinarily resident in Queensland to engage in
commercial surrogacy whether in Queensland or anywhere else in the world,
including in India, Thailand or parts of the US, even though commercial
surrogacy may be legal there.
2. How do we regulate surrogacy in Australia?
3. Issues for lawyers
2.1
Legal minefield
When a child is conceived other
than naturally it can be a legal minefield as to the rights and interests of
each party involved.
2.2
Role of lawyers: no criminality
Our role is two-fold. First, we must actively discourage those who
are ordinarily resident in Queensland from engaging in commercial surrogacy
overseas. There are many Queenslanders
who still are engaged in this practice.
Commercial surrogacy has been banned since 1988 including extra-territorially.[2]
We need to be aware of relevant
offences and advise our clients accordingly.
I will touch on these below.
2.3 Some do’s
Secondly, in respect of
altruistic surrogacy we need to take a different approach to that traditionally
taken by family lawyers. In essence we
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 be severely to the detriment of any child and of the other
players.
The role of a lawyer is in my
opinion to balance the protection of the client’s interests (which of course is
a lawyer’s primary focus), but also, especially in a surrogacy matter, act in a
spirit of trust, cooperation and collaboration.
An owner of a highly successful
surrogacy clinic in the US[3] has described the process of surrogacy as
being successful when there is flexibility between the parties, open
communication between them, and an awareness and sensitivity to the needs of
the others. It is essential that we as lawyers foster this approach to be used
by our clients. The process of trust between the surrogate, her partner and the
intended parents, is vital. If it’s gone, then it is almost impossible to
restore.
Surrogacy is a process of love in
which a baby is hopefully conceived and born.
It is easy for us as lawyers to destroy that love and we must be mindful
not to do so.
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.
When these clients have come to
you, they have discovered the holy grail: most likely the last and only chance
that they have to conceive and raise their own child.
2.3 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. You should
expect to turn around work quickly.
2.4 Clients talk
We 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.
You should expect that your
clients will show your letters of advice to them to the other side.
You should expect that sometimes
there will be a difference of opinion between lawyers about legal issues. I
normally become aware of this problem in surrogacy matters when my client tells
me what the other lawyer has advised the other parties. Assuming that the
apparent difference is significant, it may need to be raised with the other
lawyer in as sensitive manner as possible. Using the telephone is often the
best solution.
2.5 The option of no surrogacy
arrangement
This is perfectly legal, provided
that the surrogacy is altruistic, not commercial. However, without a written
surrogacy arrangement in place, a clinic will not treat, and the Children’s
Court will not make a parentage order. It is not recommended.
2.6 Some don’ts
Handled sensitively, the process
of surrogacy should proceed smoothly. I
will give two examples of where we as lawyers could have done better:
- The surrogate insisted as a term of the surrogacy arrangement that the intended parents not be present during the birth of the child or on any occasion when she might have a medical appointment when she might be naked or partly naked. In essence, this may well mean that the intended parents have no bond with the child prior to the birth of the child, with potential long term damage to the parent/child relationship, relationship between the intended parents, the relationship between the surrogate and the intended parents, and most importantly to the child.
The upshot of that case has been
that after she gave birth, the surrogate handed over the child, signed a form
to register the birth with the child to have the surname of the intended
parents, and co-operated with the surrogacy guidance report process. One might
think that it was all plain sailing at that point. It wasn’t: the surrogate
changed solicitors (so there wasn’t the continuity of engagement and advice),
and the surrogate has refused to sign the paperwork to enable a parentage order
to be made.
- The lawyer for the surrogate advised the surrogate that she could and should insist, as it was her right, to the intended parents not having access to her medical records and that she could and should insist, as it was her right, to the intended parents not being present at the birth. Both pieces of advice were no doubt legally correct. The surrogate was most upset, thinking that the lawyer missed the point about surrogacy and the building of trust and love, and immediately reported the conversation to the intended parents who were as deeply upset about the advice that had been given. It is essential in my view that the surrogate is aware that she has such a right but is also aware that by insisting on that right will inevitably harm the relationship with the intended parents and potentially with the child.
2.7 Counselling, counselling and
more counselling
The Surrogacy Act requires there to be counselling of all parties
before signing the surrogacy arrangement, and that a surrogacy guidance report
be obtained after the child is handed over. It is strongly advised that the
parties get a decent amount of counselling beforehand. This would be in the
range of 4 to 8 hours each. Some clients are reporting to me that they have
received as little as 1 or 2 hours. In my view this is nowhere near enough.
The Australia and New Zealand
Infertility Counsellors Association has issued draft guidelines about surrogacy
counselling. It is important that counsellors discuss the full range of what
can go wrong with clients. Sometimes they don’t, which can be a shock to
clients when they have had counselling, and then hear from a lawyer for the
first time as to what can go wrong.
If an egg or sperm donation is
required, counselling is also needed for that process. Usually, the one
counsellor should cover both. If a change of plan occurs, so that a donation is
needed, it is best to avoid having to double up counselling, and if at all
possible go back to the original counsellor for top up counselling. Otherwise
there could be another four to eight hours of counselling!
It is also advisable that clients
speak to others who have been through the process such as members of the
community group Surrogacy Australia[4].
It is important that clients pick
a good counsellor. A counsellor who, for example, crosses himself repeatedly in
a religious fashion during counselling is not a good pick. It must be said I
was fairly amazed when told this by clients. Clients have their own personal
demons in undertaking surrogacy. The process of surrogacy is not for the faint
hearted. The last thing that they need is to have their personal circumstances
judged.
It is a case of horses for
courses. A new client of mine, a psychologist, had chosen the counsellor, who
as it turns out was a psychologist. My client asked: “What is the point of doing the MMPI? It’s completely useless for this
stuff.” I sent her and her husband to a social worker for counselling.
A safe bet is for the client to
select someone who is a member of ANZICA, the Australian and New Zealand
Infertility Counsellors Association.
It is a good idea for this
initial counsellor to see all the parties. They are more likely to get to the
nub of whatever issues might arise in the surrogacy arrangement and
subsequently. There is no prohibition to the one counsellor seeing all.
It is essential, in my view, that
there be staged regular follow up counselling for the surrogate, her partner
and intended parents during the pregnancy and after the birth. This is not a
legislative requirement, but in accordance with the practice of Australia’s
pioneer of surrogacy, Dr Martyn Stafford-Bell. Dr. Stafford-Bell suggests
counselling at 12, 28, 35 weeks of pregnancy, and 6-8 weeks post-partum, and 3,
6, 12 months after delivery. He also recommends that the patient or surrogate
is able to contact the clinic nurse or counsellor at any time if concerned.[5]
2.8 Who wants to be a surrogate?
Typically the surrogate is a
family friend or relative. The surrogate
(and if she has a partner, her partner) has a firm view that those who are
childless ought to have the joy and privilege of children. Typically the surrogate falls pregnant
easily, gives birth easily and has few complications. For her pregnancy is a breeze and a joy by
which she can share the joy and privilege of the birth of children with others.
Of interest, from discussions I
have had with the owners of surrogacy clinics in California, although
surrogates are being paid there, the typical surrogate there matches the
profile of surrogates here. Those who
are primarily motivated by money are excluded.
Clinic owners there suggest that women who are primarily motivated by
money are much more likely to abort or not relinquish the child, than those
motivated by a sense of altruism.
4. The risks of
surrogacy
The
belief of all who take part is that it will be happily ever after. It is our
duty as lawyers to tell our clients what might go wrong.
In
my view there are three types of risk:
- Medical risks
- Relationship risks
- Legal risks
4.1 Medical risks
As
one of an ART clinic told me: “Any woman
who would willingly be a surrogate, because of the medical risks, must be mad.
Intended
parents, in their desperation to have children, do not want to harm others. The
reality of pregnancy and childbirth is that there are risks, and these are
slightly higher than for children conceived naturally.
The
risks include:
- The surrogate does not become pregnant.
- More than one child is conceived.
- The surrogate could die.
- The baby could die, or if twins, one could die. This could be a miscarriage or a stillbirth, or shortly after birth.
- The surrogate could be disabled or have permanent medical problems, such as hypertension, diabetes, back injury or depression.
- The baby could be disabled. While clients might have thought: “We would take a disabled baby”, there are levels of disability!
- The surrogate could have an abortion or refuse one.
Evidently,
appropriate life, disability and health insurance for the surrogate is highly
desirable, but may not be able to be obtained (especially for disability and
health insurance).
4.2 Relationship risks
There
are risks associated with relationships, such as:
- The surrogate splits up from her partner, and doesn’t want to proceed.
- The intended parents split up, and don’t want to proceed.
- One or both intended parents die.
- There is a breakdown in the relationship between the surrogate and the intended parents.
- The surrogate wants to keep the child, or put it up for adoption.
4.3 Legal
risks
These
include:
- A surrogate or her partner refusing to co-operate in obtaining a parentage order application.
- An inability to obtain a parentage order.
- An inability to name the intended parents as the parents of the child on the birth certificate.
- The inability to fix matters by not being able to adopt.
- Litigation in the Family Court.
- Inheritance issues not being clarified.
- Child support risks.
4.4 More detail: The surrogate does not relinquish
Intended parents who have focused
for so long about having a child focus on what they consider to be the biggest
risk, the risk that the surrogate ultimately will not hand over the child.
I was once involved in such a
case. Over 20 years ago a woman attended
upon me for advice. She told me that she
had been paid $10,000 by a couple to have a child and she had decided to both
keep the money and the child. She had
figured out that the couple would likely be prosecuted under the then Surrogate Parenthood Act 1988 and therefore would not go to
authorities to seek repayment of the money.
Ultimately as far as I am aware there were no court proceedings
concerning the child, so she was probably right in her confidence.
Re
Evelyn [1998][6]
was a Brisbane case in which a Brisbane childless couple were approached by
their Adelaide friends to have a child by surrogacy. The husband from Adelaide was a doctor, who
facilitated the whole procedure.
Surrogacy at the time was illegal both in Queensland and South
Australia.
The surrogate gave birth to the
child and handed it over to the intended parents. Within a few weeks, when she and her husband
went to visit the child, she did not let go of the child and was allowed by the
intended parents to take the child with her.
The matter ended up in the Family
Court. Jordan J ordered that the child
live with the surrogate and her husband in Adelaide. An appeal to the Full Court was unsuccessful
and leave was not obtained from the High Court.
The key feature about Re Evelyn in my view is that unlike the
thorough procedure required under the Surrogacy
Act, no-one had counselling or legal advice before entering into the
arrangement and in many ways therefore the whole arrangement had a high risk of
failure.
The one reported case under the Surrogacy Act, BLH
& HN v SJW & MW [2010][7],
which I discuss below, involved a child
conceived and born prior to the commencement of the Surrogacy Act in 2010. A
parentage order was made in favour of the intended parents. Most significantly, the Courier-Mail reported
several weeks ago that the surrogate, whom the Courier- Mail nicknamed “Rosie”,
regretted handing over the child.
Reading the Courier-Mail’s story was akin to hearing the stories of
women who had their children adopted out in the 1970’s. What struck me about the surrogacy process
entered into by the surrogate and the intended parents was that it was entered
into before the Surrogacy Act was
enacted.
More detail: Risk: Abortion
As
will be outlined below, the surrogate is like any other mother. She can control
her body. An injunction to prevent the abortion will be very hard, if not impossible,
to obtain.
5. Pre 1 June 2010
There are two 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.[8]
(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 ceased on 31 May, 2012[9].
6.
From 1 June 2010
The Surrogacy Act 2010
commenced on 1 June 2010. 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.[10]
7.
Lavarch Inquiry
Former family lawyer and Attorney-General,
Linda Lavarch, headed 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, Anna Bligh,
the then Premier, 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[11]
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.”[12]
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.
8.
The Bills
Subsequently there were two 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.[13]
It is not known with certainty if
the LNP Government is intending to amend the Surrogacy Act 2010 to
exclude single and same sex couples as intended parents. The LNP indicated
before the election that it was not seeking to amend the Act. However, with:
·
Confusing
sounds made by the Government about the nature of the repeal of civil
partnerships;
·
The
unprecedented axing of almost all funding to the body closest associated with
gay issues, the Queensland Association of Healthy Communities;
·
The
new composition of committees in the Parliament, giving Government control;
·
The
super majority of the Government in the Parliament;
in my view there is a real chance
of legislative risk that amendments may be passed that prevent singles and same
sex couples from becoming intended parents. Those intended parents should
consider undertaking surrogacy now, rather than later.
9.
Surrogacy
practice under the Surrogacy Act 2010
9.1
Guiding principles
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;
(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.”
Practitioners should be eternally
grateful. The government did not accept the committee’s recommendation that
there be a surrogacy review panel of similar nature to Victorian Assisted
Reproductive treatment Authority (VARTA) or the Western Australian regulator.
By not doing so, the Government not only lightened the burden of the taxpayer,
but also sped up the process of surrogacy, and enabled it to be considerably
cheaper for the parties.
9.2 Two steps:
before/after
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.
a. Requirements
of an altruistic surrogacy arrangement
9.3.1 Not commercial surrogacy
Commercial surrogacy arrangements
are prohibited.[14]
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.”(emphasis added)
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[15]
makes plain that every person who enables or aids another person to commit an
offence, 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.[16]
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.[17]
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.”
9.3.2 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.
9.3.3 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.[18]
The intended parent/s also need
to have independent legal advice before the surrogacy arrangement is signed.[19]
9.3.4 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.[20]
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.[21] There is no definition of conception. The
explanatory memorandum and the Attorney’s second reading speech do not assist.
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. If so, then conception will have
occurred before the surrogacy arrangement was signed, meaning that a parentage
order cannot be made. There is no ability to dispense with this provision.
Counselling is not required for
any donor, although a requirement of the clinics is that donors are counselled.
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.[22] Whether a court will hold the same view is a
moot point. Although I have had a preliminary view expressed by Judge Everson
DCJ on point, there has been no finding on this point to my knowledge.
9.3.5 Surrogacy
arrangement needs to be written
The surrogacy arrangement needs
to be signed by the birth mother, her spouse and the intended parent/s.[23] It does not need to be signed by any donor.
9.3.6 Generally not
legally binding
Generally an altruistic surrogacy
arrangement is not legally binding, except as regards the birth mother’s costs.[24]
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.[25]
I have found that it is important to set out, for the protection of surrogates,
an explicit statement that the surrogate has the right to manage the pregnancy
as does any other woman. While the document is not binding, the message that
the surrogate has control of her own body is a powerful one.
By comparison, in In the marriage of F and F (1989)[26],
Lindenmayer J refused an application by a husband for an injunction to restrain
the wife from having an abortion. His Honour found, in part, that the common
law right to procreate did not extend to the husband having a right to force
the wife to continue with the pregnancy contrary to her wishes. His Honour also
found that under the Family Law Act
that there was a basis for an injunction under s.114(1), as it arose out of the
marital relationship, but that in the circumstances of the case it was not
“proper” to grant the injunction.
In the recent case of Talbot and
Norman (2012)[27],
Murphy J rejected the ability of a de facto husband to obtain an injunction to
prevent an abortion, in part because of the statutory jurisdiction of the
Family Court, and in part because of the foetus not having legal standing until
it was born. His Honour left open the possibility of a similar injunction being
obtained in the Supreme Court.
9.4 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. Clinics are insistent, quite rightly, on
having a copy of the surrogacy arrangement before treatment can commence.
9.5 Step
2: Obtaining the parentage order[28]
9.5.1 Key Steps
There are a number of key steps
that need to be taken to obtain the parentage order.
- The child is born and handed over to the intended parent/s.[29]
- For post 1 June 2010 surrogacy arrangements, the 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.[30]
- The order is for the wellbeing and the best interests of the child[31], this being the paramount consideration[32].
- The intended parent/s make the application together.[33]
- The birth mother and her spouse and any other birth parent all consent to the making of the parentage order.[34] 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.[35]
- The birth mother and her spouse were at least 25 years when the surrogacy arrangement was made.
- The intended parent/s were at least 25 years when the surrogacy arrangement was made and at the time of the application are resident in Queensland.[36] 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.
- A surrogacy guidance report has been obtained.[37] 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.[38]
- There must be evidence of a medical or social need for the surrogacy arrangement.[39] In essence, whilst there might be evidence of medical need for any male intended parent (including any gay couples) social need is sufficient.
- 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 the medical need needs to be shown for both.[40] 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.[41]
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.
9.5.2 Documents required
The documents required to enable
the parentage order application to be successful are:
- a copy of the child’s birth certificate;
- a 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.
9.5.3 Parentage order
A parentage order is made by the
Children’s Court.[42]
It transfers custody and guardianship to the intended parents, and authorises
changes to the birth certificate to reflect the change of legal parentage.
9.5.4 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”.[43] There is also a dispensation if the birth
mother or a spouse has died, loses capacity or cannot be located.[44]
9.5.5 Categories that can be
dispensed with
. The 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.[45] The definition of couple in section 9(2) as
spouses therefore means that if a married couple have separated, they remain a
couple until divorce.
. 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.
9.5.6 Case example
There has only been one reported
case in Queensland: BLH & HN v SJW
& MW [2010] QDC 439[46].
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.
10 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. However, at
least one of our leading clinics will not treat where the intended parents live
outside Queensland.
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. Interstate
legislation may prohibit surrogacy that is allowed in Queensland. For example, a gay couple in Western
Australia does not have an entitlement under the Surrogacy Act 2008 (WA) to obtain a parentage order.[47]
It is a quirk of our Federal
system that if the intended parents live in the Tweed, but treatment were at
the John Flynn Hospital, then the parentage order 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 might be transmitted to the
Registry of Births, Deaths and Marriages in Brisbane, to be recorded on the
Queensland birth certificate. The issue of children being born interstate is
problematic, and symptomatic of the failure of the States to have complementary
laws.
11
Discharging
parentage orders
It is possible to discharge
parentage orders. The grounds, as set out in section 46, are:
(a) the parentage order was obtained by
fraud, duress or other improper means; or
(b) a consent required for the making of
the parentage order was, in fact, not given or was given for payment, reward or
other material benefit or advantage (other than the birth mother's surrogacy
costs); or
(c) there is an exceptional reason why the
parentage order should be discharged.
12. Myths of surrogacy
Myth 1:
a written surrogacy arrangement is required
It is a myth that a surrogacy
arrangement is required. It is not. Residents of Queensland are perfectly
entitled to enter into an oral surrogacy arrangement, provided that it is not
commercial. The purpose of a written
surrogacy arrangement is two-fold:
- Without it, the doctor will not treat; and
- Without it, a parentage order will not be made.
A traditional surrogacy may not
need medical intervention and therefore a written surrogacy arrangement is not
required. Obviously anyone entering into
such an oral surrogacy arrangement would be extremely foolish.
Myth 2: a surrogacy arrangement
must comply with the Act
This is incorrect. The surrogacy arrangement has two purposes:
- To enable the doctor to treat (because without it the doctor may be open to a negligence claim or prosecution for facilitating a commercial surrogacy).
- To enable a parentage order to be made.
The doctor may be prepared to
treat if the proposed surrogacy arrangement evidences that it is not a
commercial one. This is despite the fact
that the surrogacy arrangement may provide for a surrogacy that will not permit
the making of a parentage order.
Lawyers preparing a surrogacy
arrangement that does not meet the parentage order requirements must warn their
clients clearly, and out of abundance of caution do so in writing.
Case
example: Bob and
Jane are married. They are unable to
successfully carry a child. Jane is
desperate to have a child and persuades Bob to consider surrogacy. Jane’s parents, John and Francine, propose
that Francine be the surrogate. All four
parties have counselling and then sign a surrogacy arrangement. Bob and Jane then separate because Bob no
longer wants to go through with the surrogacy.
Jane still wants to have a child.
Jane is aware that Francine’s biological clock is ticking. If Jane waits until
she is able to be divorced from John, it may be too late: she may never have a
child. They therefore decide to take the risk of trying to have a child but
without having the benefit of a parentage order. Jane, John and Francine can no
longer rely upon the surrogacy arrangement for treatment.
John, Jane and Francine enter
into a new surrogacy arrangement. They are aware, at the time of entering into
the new surrogacy arrangement, that the doctor will be prepared to treat but
the parentage order cannot be made. This
is because, as Bob and Jane are married, they are a “couple” within the meaning
of section 9(2) of the Surrogacy Act. Jane is therefore ineligible to apply for a
parentage order within the meaning of section 21(5). This is not a requirement that can be
dispensed with by a Children’s Court judge.
If Bob and Jane had been a de
facto couple there would have been no difficulty in Jane applying to obtain a
parentage order.
13. Ongoing relationship between the surrogate
and the child
It is the policy of the Surrogacy Act that the child knows as
soon as possible where it came from. Fertility counsellors have suggested to me
that the topic be broached in an age appropriate manner when the child is about
7 or 8. There needs to be given careful thought before entering into the
surrogacy arrangement as to what involvement, if any, the surrogate and her
partner have in the child’s life. It must be remembered that many altruistic
surrogates are family members or close friends.
14. Financial liability if the intended parents
do not take the child
An obvious issue for all to
consider is if the intended parents do not take the child for whatever reason,
for example, the child is severely disabled, what then? Invariably the surrogate and her partner are
making decisions that in that event they would keep the child. One option obviously is for the child to be
placed up for adoption.
If the surrogate and her partner
were to keep the child, they will not be eligible to obtain child support from
the intended parents. This is because
under the Status of Children Act 1978
(Qld) the birth mother will be the parent.
Her husband will be the other parent.
If she has a lesbian partner, her lesbian partner will be the other
parent.[48]
There is, however, the basis to
sue as to issue estoppel. As with all
legal monetary rights, they are only as good as the ability of the defendant to
pay, an issue to be considered by the surrogate and her partner before
proceeding with surrogacy.
In W v G (1996) [49]
a lesbian couple separated. At that time
in New South Wales the lesbian co-mother was not recognised as a parent. The parties set about having 2 children
together, using IVF. One of the parties
was the mother of both children.
Following their break up, the
woman who was not the mother of the children told the mother that she was not
liable for child support (as she was not covered by the Child Support (Assessment) Act), and was not liable for child
maintenance (as she was not covered by the Family
Law Act), and therefore no payments needed to be made by her for the
children.
Not surprisingly, the mother was
not very happy about not getting child support and sought as part of her claim
for property settlement under the New South Wales legislation a common law
claim based on issue of estoppel for the cost of raising the children. The mother was the plaintiff and the
co-mother the defendant. Hodgson J
summarised the mother’s case:
“The
Plaintiff’s claim for child support was put forward on the following basis. By
virtue of these statements and the conduct by way of support the plaintiff and
her participation in the actions leading to the impregnation of the Plaintiff
and by her silence as to any contrary view, the defendant created or encouraged
in the plaintiff a belief or assumption, or otherwise could be said to have
promised to the plaintiff, that she, the defendant, would accept the role of
parent to each of the children and would in so doing accept responsibility for
the material and general welfare of both children, and would support the
plaintiff in providing for the needs of both children and of the plaintiff as
their mother. In reliance on that promise or assumption, the plaintiff acted to
her detriment by going about the actions which led to her conceiving each child
and carrying each child to term. The defendant knew or intended that the
plaintiff would act in reliance on the assumption; and the plaintiff’s actions
in so relying will occasion detriment if the assumption or expectation is not
fulfilled , in that the plaintiff will be left to bear the cost of providing
for the material welfare of both children until they reach adulthood, otherwise
the plaintiff will suffer detriment in the form of income and opportunities
forgone by virtue of her pregnancies, and also by virtues of the obligation she
bears towards both children in terms of parenting in provision of care. The
Defendant had failed to act to avoid that detriment, her action was
unconscionable, and it was appropriate for the court to give effect to the
resulting estoppel by ordering payment of an appropriate lump sum by the
defendant to the plaintiff in respect of child support”.
Hodgson J sets out
the circumstances in which the children were conceived[50]
and therefore accepted[51]:-
“that,
although the initiative came from the plaintiff, the defendant did by her words
and actions conveyed to the plaintiff that the defendant would act with the
plaintiff as a parent of the children and would assist and contribute to the
raising of the children, so long as this was necessary.”
For the reasons that
His Honour gave, His Honour ordered[52]
that the defendant provide just over $150,000.00 towards the cost of raising
the children.
15. Options if a parentage order cannot be
obtained
15.1 Adoption
If a party cannot
obtain a parentage order, it may be next to impossible to obtain an adoption
order.
The inherent
jurisdiction of the Supreme Court was preserved under the Adoption of Children Act 1964[53],
but there is no clearly stated preservation under the Adoption Act 2009.
Only those who are married or in
heterosexual de facto relationships and who have lived together for 2 years
need apply for adoption, and must not be an “intended
parent under a surrogacy arrangement within the meaning of the Surrogacy Act
2010” or if the surrogacy arrangement has ended, that it ended not less
than 6 months earlier[54].
15.2 Parenting order under the
Family Law Act
The other alternative open to
clients is to make an application under the Family
Law Act, as in the manner of Re Mark:
Application relating to parental responsibilities (2003)[55]
in which a gay couple from Victoria underwent a commercial surrogacy
arrangement in California. One of the
parties was the father. Brown J made an
order for joint parental responsibility for both men and for the child to live
with them.
Given the recent difficulties
with a series of cases in the Family Court last year, and an outstanding test
case before Ryan J, it is wise to be wary about making any such application at
the moment, if it can be avoided.
16. Recognition under the Family Law Act
Section 60HB of the Family Law Act 1975 provides:
“
(1) If a court has made an order under a
prescribed law of a State or Territory to the effect that:
(a) a
child is the child of one or more persons; or
(b)
each of one or more persons is a parent of a child;
then,
for the purposes of this Act, the child is the child of each of those persons.
(2) In this section:
"this
Act" includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates Rules.”
Regulation 12CAA of the Family Law Regulations 1984 prescribes
s.22 of the Surrogacy Act as a
prescribed law for the purposes of s.60HB.
17. The Future
Recent legislative change, media
attention and societal attitudes have now moved to such a point that
Australians will increasingly view surrogacy as an option. The demand for
surrogacy services has grown from a low base, and likely to increase. An aging
population, few children available either within Australia or from overseas via
adoption, and limits to the ability of IVF, together with the desire of gay couples
to have children combine to guarantee a demand for surrogacy.
If
the changes to enable de facto couples recognition as to property settlement
under the Family Law Act are any
guide, it will be many, many years before we have national laws concerning
surrogacy where parentage applications are made to the Family and Federal
Magistrates Courts. We are at the beginning of a very long road.
Stephen
Page
Harrington
Family Lawyers
23 May 2012
Phone:
61 7 3221 9544
Fax:
61 7 3221 9969
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
[1]
Stephen
Page is a partner of Harrington Family Lawyers, Brisbane. Admitted in 1987, Stephen has been an
accredited family law specialist since 1996.
Stephen is a member of the Fertility Society of Australia and of the ART
Committee of the American Bar Association. He is the author of the Australian
Divorce Blog http://australiandivorce.blogspot.com,
the Australian Gay & Lesbian Law Blog http://lgbtlawblog.blogspot.com and
the Australian Surrogacy & Adoption Blog http://surrogacyandadoption.blogspot.com. His Twitter avatar is: stephenpagelaw.
Stephen has advised clients about surrogacy who hail from near and far.
[2]
Then: Surrogate Parenthood Act 1988. Now:
Surrogacy Act 2010, ss. 54, 56.
[3]
Kim Bergman, co-owner of growing Generations, reputed to be one of the oldest
and largest in the world
[5]
M. Condon, “Surrogacy Counselling”, paper delivered at Fertility Nurses
Association training, Gold Coast (2011).
[6]
www.austlii.eu.au/cgi-bin/synodisp/au/cases/cth/FamCA/1998/2378.html
[7]
[2010] QDC 439.
[8]
S.3 Surrogate Parenthood
[9]
S.63
[10]
Births, Deaths and Marriages Registration Act 2003 Qld, s.10A
[12]
Introduction
[13]
Hansard 11/2/10, I was also present and witnessed the vote.
[14]
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).
[15]
Section 7.
[16]
Section 55.
[17]
Section 10.
[18]
Section 22(2)(e)(i)(A).
[19]
Section 22(2)(e)(i)(B).
[20]
S.19, and Section 22(2)(e)(ii) Section 22(2)(e)(vi)??..
[21]
Section 22(2)(e)(iv).
[22]
Letter to the writer 16/11/10.
[23]
Section 22(2)(e)(v).
[24]
S.15.
[25]
Cf see note to s.7.
[26]
(1989) 96 FLR 118; 13 Fam LR 189; (1989)
FLC 92-031
[27]
[2012] FamCA 96
[28]
S. 22(2).
[29]
S. 22(2)(b).
[30]
S.22(2)(b).
[31]
S. 22(2)(a).
[32]
S.6.
[33]
S. 22(2)(c).
[34]
S. 22(2)(h).
[35]
Ss. 16, 17; Status of Children Act 1978 Qld
[36]
S. 22(2)(g).
[37]
S. 22(2)(i) section 32.
[38]
S. 32, 19.
[39]
Section 22(2)(d).
[40]
S.. 14(1)(b)(iii), 14(2).
[41]
S. 14.
[42]
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.
[43]
Section 23(2).
[44]
Section 23(3).
[45]
Section 21(5).
[47]
S.19
[48]
Ss 17, 19D.
[49](1996)
NSWSC 43, www.austlii.edu.au/au/cases/nsw/supreme_ct/1996/43.html
[50]
Paragraph 70
[51]
Paragraph 71
[52]
Paragraph 107
[53]
Section 5B
[54]
Section 76
[55]
[2003] FamCA 822
2 comments:
Matters like surrogacy are really important and it will surely be necessary to seek the help of the legal professionals who can give light on the things that may appear complicated for you.
Very informative blog! I found lots of law info, thanks for the info.
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