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University of Technology Sydney Law Research Series |
Last Updated: 7 March 2017
Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy
This is a pre-publication version of an article
forthcoming in (2013) 27(2) Australian Journal of Family Law
Jenni
Millbank[◊]
Introduction
Surrogacy
is increasingly accepted as a form of treatment for
infertility,[1]
in particular for women who are unable to carry a pregnancy to term for reasons
that include absence of a uterus, hysterectomy as
a result of cancer treatment
or pregnancy complications, repeat miscarriage or a range of medical
conditions which may make pregnancy
life-threatening.[2]
Surrogacy is also increasingly sought by gay men who want to have
children of their own as a family unit. Another factor influencing increasing
demand for surrogacy in Australia is the marked and continual decline in
availability of young children for both domestic and international
adoption.[3]
Commercial surrogacy, variously defined as involving payments above
reasonable expenses to the surrogate and/or payment to an intermediary
to
arrange surrogacy, is criminalised throughout
Australia.[4] It appears that overseas
commercial surrogacy is the most common mode of surrogacy undertaken by
Australian citizens. In 2010, there
were 16 recorded surrogacy births within
Australia as a result of regulated IVF
treatment[5], while 394 babies were
born in India to Australian citizens in 2011, the majority of them almost
certainly via commercial
surrogacy.[6]
The Department of Immigration and Citizenship (DIAC) has stated that it,
is aware of over 420 citizenship applications by children born through
surrogacy [from 2008 to 2012]. However, the number may be
larger as surrogacy
may not be declared, detected or manually reported in all
cases.[7]
There is no automatic data collection for surrogacy applications;
all cases are recorded by DIAC Citizenship Policy Branch manually.
Generally a
case will only be notified when the face of the documentation reveals or
suggests surrogacy, for example where a birth
certificate lists two male names
or there are other details such as travel dates to the country of birth very
close to the date of
birth.[8]
More detailed information such as the nationality of the surrogate, whether
there was also an egg donor, or whether a case was accompanied
by DNA testing,
is simply not
available.[9]
The trend towards offshore commercial surrogacy has developed
irrespective of extra territorial criminal bans on residents of the
Australian
Capital Territory (ACT), Queensland and New South Wales (NSW) undertaking such
arrangements.[10]
The proliferation of professional brokers and specialised clinics in conjunction
with the speed of information exchange and travel
means that despite all of the
inherent risks and legal complications, the pathway of international surrogacy
is perceived by many
Australian intended parents as more accessible than
domestic surrogacy. The major destination countries for Australians appear to
be
India, the USA and Thailand,[11]
with smaller numbers travelling to
Canada.[12]
The Australian approach to legal parentage is particularly complex in the context of trans-national surrogacy arrangements. Australian law does not recognise parental status granted in other jurisdictions unless specifically prescribed under legislation for particular purposes. Overseas commercial surrogacy arrangements are also excluded from specifically enacted domestic surrogacy laws that enable transfer of legal parentage in certain circumstances. In the absence of Australian parentage the child would, in some circumstances (such as birth in India), be both stateless and parentless; in others the child would have the citizenship of the birth country (USA, Thailand) but no parents (California, British Columbia); or only a mother there (Thailand).[13]
Thus Australian administrators and judges have had to grapple with the claims
of Australians trying to return to Australia with a
foreign born child with whom
they usually have a genetic link and a primary caregiving role, but no legally
recognised relationship.
Recognition has occurred through ad hoc liberalisation
of interpretations of ‘parent’ and ‘child’ in particular
pieces of legislation, which has left parents in a state of ambiguous,
labyrinthine and ‘limping’ legal
parentage.[14]
In recent years many hundreds of intended parents have returned to Australia
under a process which accords citizenship by descent
to the child but does not
allow for legal parentage to be regularised more broadly. While it is entirely
understandable for decision-makers
to try to ‘find’ a parent in
order to avoid outcomes such as leaving children stateless orphans abroad, this
result also
flies in the face of clear legislative wording and intent of
domestic assisted reproduction and surrogacy laws.
This article presents
an analysis of the problems posed by the current situation as well as those
generated by the ad hoc judicial
and administrative solutions that have occurred
in response, before going on to explore the risks and potentiality of possible
reforms
to federal law. This is not a field in which any solution is simple or
obvious. Rather, every change to domestic law involves a tangled
interplay of
state and federal provisions, and in the international context has to be
evaluated by reference to social impacts including
the inequitable treatment of
parents who undertake surrogacy at home or abroad and the potential creation or
fulfilment of international
‘demand’ for surrogacy practices in the
countries of destination.
The analysis in this article is informed
throughout by my own view of surrogacy as a valid method of family formation
which should
be respected. I believe that the State has a legitimate objective
in trying to ensure that surrogacy is undertaken with the informed
and
continuing consent of all the parties, and most particularly the surrogate,
given the unique impact and significance of the gestational
relationship. I
concur with Pamela Laufer-Ukeles that, ‘gestating a fetus may not lead to
motherhood, but it is also not like
building a cabinet’ and that a
feminist focus on the gestational relationship reflects the significance of
pregnancy,
not as some critiques have argued because of a belief that women
“should” gestate their children, but rather recognition
of the
unique and valuable contribution of gestation when it is
provided.[15]
Surrogacy is not a harmful practice to women who make an informed
decision to undertake a pregnancy for a surrogacy arrangement and
willingly
relinquish a baby they do not regard as their
own.[16] In a feminist analysis, a
baby created via surrogacy is not the baby of the birth mother, not because of
the operation of contracts,
or genetic link to intended parent(s) combined with
lack of genetic link to the surrogate; rather the baby is not hers because she
says so and believes this to be so, before, during and after the pregnancy in
which she gestates that child into
life.[17] This is not to ignore the
fact that women’s choices can be constrained or debilitated by a range of
external factors, including
law itself.
Because of my concern to centre
the surrogate, I argue for continuation of the foundational principle in
Australian law that the birth
mother is a legal parent at birth, whether or not
she is a genetic parent. This position is not one supported by many surrogacy
lawyers
and advocates who argue that intention (as evidenced in the terms of the
surrogacy agreement) and genetic links should be the basis
for legal rules
presumptively granting status to the intended parents with minimal or no
oversight.[18] While agreeing that
the current lacuna is unfair and unsustainable, this article argues for a
co-ordinated and accessible federal
system which provides for a consensual
post-birth transfer process within Australia that is capable of addressing
international commercial
surrogacy arrangements. Ultimately, I argue for
specific jurisdiction for the Family Court of Australia to
transfer (rather than declare) legal parentage where state
surrogacy regimes render parents ineligible, and a new process for immigration
in which citizenship
by descent flows from parentage orders rather than precedes
them.
The Legal Problem
Australian law determines the parentage of children, regardless of the laws
in operation in the country of birth and irrespective
of any birth documentation
issued elsewhere, unless that documentation is expressly recognised through
Australian legislation.[19] The
Family Law Act 1975 (Cth) (FLA) s 69R provides a rebuttable presumption
of parentage based on registration. Under the FLA s 69S there are both
rebuttable (s 69S(1A)) and conclusive presumptions (s 69S(1) in conjunction with
s 69U) of parentage arising from the finding of a court. However all of these
presumptions only operate if an overseas jurisdiction is prescribed
in the
regulations. No overseas jurisdiction is prescribed for the purpose of s
69R[20] nor for s
69S(1).[21] Under the s 69S(1A)
rebuttable presumption, several jurisdictions are prescribed under the
regulations (directed largely towards international child
maintenance and Hague
Abduction Convention cases, but not expressly limited to these
purposes).[22] None of the main
surrogacy destination countries presently utilised by Australians is
prescribed.
Laws put in place throughout the states and territories in the
1970s and 1980s provide that the woman who gives birth to a child is
a parent
and the de facto or married partner of a woman who conceives a child
through assisted reproduction is a parent of that child by virtue of their
consent to the conception
attempt.[23]
These parentage laws apply regardless of whether the birth mother or her partner
is a gamete provider. Surrogacy arrangements generally
involve assisted
conception, which may entail simple home insemination in genetic surrogacy (in
which the surrogate uses her own
egg) or IVF in the more common mode of
gestational surrogacy (in which the intended mother’s egg or a donor egg
is used).[24] In either case, state
and territory law is clear that it is the birth mother and partner who are
parents, not the intended parents
- whether or not they are genetic parents.
The state approach was partially reflected in the FLA, which in 1983 included
similar
provisions to the state laws ascribing parentage status under
assisted reproductive technology (ART), and prescribing state laws on point, but
did not include mirror provisions
severing the status of the gamete
donor.[25]
This inconsistency was addressed in 2008 amendments to the FLA, and will be
discussed below.
Through the 2000s all states and territories (except
the Northern Territory) introduced specific parentage transfer regimes for
surrogacy
with a complex and varied range of procedural and substantive
requirements.[26]
All of these regimes exclude commercial arrangements from eligibility and many
also exclude arrangements where the conception was
undertaken outside of the
jurisdiction.[27]
They therefore exclude international commercial arrangements.
Current
responses by the Federal Government and the Family Court
The Department of Immigration and Citizenship faces a conundrum when Australian parents abroad apply for citizenship of a child born through surrogacy in order to obtain an Australian passport and return with the child. The Australian Citizenship Act 2007 (Cth) s 8 expressly adopts s 60HB from the FLA, thus recognising the parent-child relationship in surrogacy if it has been previously granted through state orders transferring parentage.[28] As noted earlier, all of the state and territory regimes exclude commercial arrangements, most exclude children born outside of the jurisdiction, and it is doubtful that any could grant orders concerning parents who were not at the time within the jurisdiction. Thus DIAC has quite literally sidestepped the provision by declaring that this section is inapplicable to overseas arrangements.[29] DIAC practice, made transparent through recent incarnations of the Citizenship Instructions, is to grant citizenship by descent to children born overseas if there is one Australian genetic parent (and possibly in very limited circumstances if there is no genetic link).[30] This approach is one of administrative convenience. While the Full Court of the Federal Court has determined that ‘parent’ in the context of the Citizenship Act is a question of ‘ordinary meaning’ which can go beyond traditional understandings,[31] it is hard to justify bringing surrogate parenthood under this umbrella when express provision of the same Act contradicts it.[32]
Grants of citizenship by descent are taking place at a low level of administrative operation, often in the space of one or two weeks.[33] In making their decision, officers utilise documentation from fertility providers (sometimes in conjunction with, but sometimes in place of, DNA results) and surrogacy contracts. While Australian administrators have directed themselves to the question of recognition of the intended parents, the non-recognition of the surrogate, or the severing of her status, has often gone unquestioned. While formally precluded from recognising foreign laws of parentage, DIAC practice has in fact incorporated deference to them, through for example, taking into account whether surrogacy agreements are enforceable under local laws and whether the surrogate or intended parents are regarded as legal parents in the country of birth. This implicit deference to local law even though it is in direct conflict with Australian law[34] (which holds that the surrogate is always a parent at birth) is evidenced in the contrast between the approach of the department to applications from Thailand (where the surrogate is a parent at birth and cannot relinquish her status in local law) compared to India (where the surrogate is not regarded as a parent at birth) and the US (where pre-birth orders transfer parental status in many states).[35] Through 2009 and 2010 DIAC would not grant citizenship by descent to Australian intended parents in Thailand, and required Family Court orders to be made in Australia extinguishing the surrogate’s parental responsibility before considering applications onshore.[36] In 2011 this practice changed such that applications would be granted in Bangkok but only if the surrogate was interviewed in person by DIAC,[37] a requirement that is not applied by Australian consular officials to surrogates in the US and India.[38]
The non-extinguishment of the surrogate’s parental status in Australian
law was belatedly acknowledged by the Department of
Foreign Affairs and Trade
(DFAT). In April 2013, DFAT implemented a change in practice, now requiring that
a surrogate mother consent
in writing to the issue of an Australian passport to
the child (after the conferral of citizenship by descent by DIAC) and
explicitly consent to removal of the child from the country of
birth.[39]
For many Australian
parents their attempt to gain legal status begins and ends with citizenship.
This is for several reasons. Parents
commonly misunderstand the granting of
citizenship (which applies for that sole legislative purpose) and believe that
it is a grant
of parental status applicable to all state and federal law.
Indeed, as parents take their child’s passport and successfully
use it to
apply for a Medicare card, parenting payments and child care rebate, it is
understandable why they would think this. When
an Australian passport is backed
up with a birth certificate naming both intended parents, these are unlikely to
be challenged in
everyday life. Even if parents are made aware of their lack of
formal status, the expense and uncertainty of available (and partial)
recognition avenues, combined with stigmatisation of their family form,
including the threat of criminal sanctions in three jurisdictions,
renders it is
highly undesirable to seek formal
status.[40] It is therefore not a
coincidence that all of the international surrogacy cases to date in the Family
Court involved arrangements
in which birth documentation was not in the
names of both intended parents and/or citizenship by descent had not yet been
granted: ie arrangements from Thailand and cases
involving gay
men.[41]
The first three
decisions handed down by the Family Court between 2003 and 2010 concerning
overseas commercial arrangements[42]
were brought by gay male couples with arrangements from the US and
India.[43] In 2010 and 2011 several
applications arose within a short time, all of which were brought by the same
lawyer, involving children
born in
Thailand[44] and a mix of intended
parents who were straight and
gay.[45] In response to one of these
applications in the case of Ellison and Anor & Karnchanit, Justice
Ryan was the first to appoint an independent children’s lawyer (ICL), to
represent the child’s interests and
to assist the court to elicit more
complete and detailed evidence.[46]
The Human Rights Commission (HRC) was also invited to participate. Handed down
in 2012, Ellison provides a comprehensive overview of the difficulties
faced by decision-makers in these circumstances and concludes with a detailed
outline of best practice steps to provide guidance for future approaches to
decision-making in international surrogacy.
In Ellison, the court
summarised with approval the submissions of the ICL and HRC that a best practice
approach to international surrogacy applications
requires:
While these
safeguards have been characterised as excessive by some
commentators,[47]
they are important not least because all of the international commercial
arrangements before the Family Court have involved undefended
proceedings[48] and resulted in an
order granting parental responsibility to the intended parents and removing such
responsibility from the surrogate.
As noted by Ryan J in Ellison,
The position of the birth mother requires close attention to ensure that
she has given free and informed consent and has not been
subjected to
exploitation, coercion or undue influence and that her rights have been
adequately protected. This can be problematic
in cases that involve cross-border
arrangements in which the birth mother may be difficult to locate and in which
there may be complexities
with
communication.[49]
In
many Family Court cases orders were sought on the basis that the intended
parents had standing as a person concerned with the ‘care,
welfare and
development’ of a child under s 65C(c); however in some cases the genetic
father applied on the basis that he was
a legal parent, or sought orders
declaring him as such, with mixed results. Some judges have rejected this claim
as excluded by the
FLA provisions on parentage in assisted conception, while
others have taken a liberal or ‘enlarging’ view of parenthood
in the
FLA in order to find that a male genetic parent in surrogacy arrangements is
a legal parent without the need for a transfer process. Mostly this has
resulted in a finding (even on occasion an assumption without
an express
finding) that the male parent is a parent under the FLA, although in
Ellison the court made a declaration of parentage under s 69VA that is
effective through all Commonwealth
law.[50]
The
‘enlarging’ view of legal parentage was followed in 2013 in
Blake, a decision of the Family Court of Western Australia interpreting
the terms of state adoption
legislation.[51] The intended
parents were a gay male couple, one of whom, Mr Marston, was a genetic parent to
twins born from a surrogacy arrangement
in India. The applicant, Mr Blake, was
the non-genetic intended parent who wished to apply for step-parent adoption by
virtue of
his de-facto relationship with Mr Marston. Mr Blake applied to the
court for orders to dispense with the requirement of consent of
the birth mother
and of an adoption plan under the Adoption Act 1994 (WA). The court, in
granting these orders, determined that Mr Blake was indeed a step-parent under
the Act by first holding that the
genetic father was a ‘birth
parent’ for the purposes of the Adoption Act. The court had regard to the
terms of the surrogacy
agreement in dispensing with the requirements of consent
and adoption plan. Crisford J also had regard to the grant of citizenship
by
descent by DIAC and the support given to the application by the Department of
Child Protection.[52]
An
‘ordinary’ or ‘enlarging’ approach to legal parentage in
surrogacy is not a solution, and indeed creates
a number of additional problems,
for reasons which include: inconsistency with state and federal rules on
parentage in assisted conception
families; unintended consequences; sex
discrimination; subversion of the clear legislative intent for parentage
transfer in surrogacy;
and limping legal parentage. These are addressed in turn
below.
Inconsistency with State and Federal Laws on Parentage in Assisted Conception
State parentage law is clear that gamete providers, both male and female, in surrogacy arrangements utilising assisted reproduction, are not legal parents.[53] The parents of a child are the birth mother and her de facto or marital partner. While ‘inconsistency’ may seem a classically abstract legal cry of complaint, there are many reasons why this is a real and substantial problem. The regularisation and consistency of parentage in assisted conception took the federal and state governments several years to achieve for heterosexual families in the 1980s, and another decade to include female partners in lesbian-led families through the 2000s, such that a coherent national approach appeared to be finally in place by 2008.
The uncertainty which gave rise to the ‘enlarging’ approach resulted from the fact that the FLA has no overarching definition of parent or child, and the assisted conception parentage provisions originally reflected some but not all of the state rules (recognising non-biological parents but not explicitly severing the status of sperm and egg providers). Yet the original disagreement between the judges in the surrogacy case of Re Mark and the lesbian parent and known sperm donor case of Re Patrick as to whether the FLA allows for an ‘enlarging’ approach to who is a legal parent in assisted conception[54] was overtaken by legislative amendment.[55] In 2008, s 60H(1)(d) was amended to clarify that a ‘provider of genetic material’ is not a legal parent unless they are the consenting partner of the woman who gives birth. The 2008 amendments also included for the first time a specific section on surrogacy, s 60HB, which provides that the intended parents through surrogacy are the parents of a child under the Act if there is an order of a court to that effect made under prescribed state law.[56]
While some state legislation expressly spelt out the relationship between parentage laws on assisted conception and surrogacy provisions,[57] the FLA amendments did not do so. The legislative drafting is thus arguably still not crystal clear, the intention, however - to provide that if there is the provision of egg or sperm to a woman otherwise than via sex, it is the birth mother and her partner who are legal parents, and in cases of surrogacy that a state based transfer process must be undertaken - is manifest. Ryan J asked in Mason,
[W]hy would Parliament simultaneously introduce two different provisions; one general [s 60H] and one specific more limited than the general [s 60HB]? The answer would appear to be that Parliament intended to adopt the same scheme that operates in the states and territories. Namely a scheme for the declaration of parentage and, for children born of a surrogacy arrangement, the transfer of parentage in accordance with an order made by the Supreme Court of NSW.[58]
The 2008 reforms involved a tranche of three Bills to accord rights to same-sex couples and to parents in surrogacy, arising out of the report of the (then) Human Rights and Equal Opportunity Commission.[59] The Bills originally contained a ‘catch-all’ definition of the parent and child relationship intended to cover both same-sex couples and surrogacy parents through allowing courts and administrative decision-makers to find that a child was a ‘product of the relationship’ under certain Acts if they were living in the same household with one genetically related adult in a de facto couple or marriage. When the Bills were referred to a Committee process by the Senate in 2008 the Committee rejected this definition in strong terms.[60] Parentage in lesbian-led families formed through assisted conception and in surrogacy families was uncoupled, as existing assisted conception provisions were extended to female partners. Declarations were eschewed by the Committee in favour of a clear process of parentage transfer in surrogacy with court oversight.[61] The government tabled amendments, accepted by the opposition, to enact a specific new section, s 60HB, to achieve this.[62] The 2009 discussion paper issued by the Standing Committee of Attorneys-General to harmonise surrogacy laws throughout Australia was entirely premised on the basis that neither intended parent in surrogacy is a legal parent in the absence of a state-based transfer process to achieve it.[63]
Yet following the 2008 amendments, differently constituted courts have made
contrary findings about whether the male genetic parent
in a surrogacy
arrangement is a parent under the
FLA,[64]
including in two separate cases concerning the same
family[65] and more recently in
two decisions concerning different families by the same
judge.[66] The impossible confusion
generated by this was reflected in the 2013 case of Schone in which the
Magistrate referred the case to the Family Court because the conflicting
decisions from the court about who a parent
is meant that he was not confident
in making a decision.[67] Intended
parents are also left uncertain about whether they are able to approach the
court to, for example, seek s 60G orders to
enable them to pursue adoption under
state law.
The window provided for the use of a ‘natural’ or
‘ordinary meaning’ of parent to include a male genetic parent
utilising assisted conception arises from the fact s 60H has a complex and
repetitive structure:[68] subsection
(1) refers to a woman who is married or in a de facto relationship and
determines whether the child is a child of the
woman and her partner by
reference to both the wording of the Act and prescription of state
law[69]; subsection (2) refers to a
woman and determines whether the child is the child of that woman; and
subsection (3) refers to a woman
and whether the child is the child of a man.
Subsections (2) and (3) operate by prescription of the state law on
point;[70] whereas subsection (1) in
a belt and braces approach operates either by reference to the consent of the
partner or by prescription
of the state law on point (which also requires
consent of the partner). In a piece of particularly poor drafting that has added
to
the melee, the 2008 amendment explicitly severing parental status of a gamete
provider was inserted into subsection (1) rather than
included as an overarching
provision. Thus, despite the fact that subs (2) and (3) only operate by
reference to state law (which
does conclusively sever a gamete
provider’s legal status) it was technically possible to characterise the
severance as only applicable
to single women, which is what Ryan J did in
Ellison. More recently, however, Ryan J doubted the correctness of her
decision on this point in Ellison and revisited her interpretation of ss
60H and 60HB, concluding in Mason that a genetic parent in surrogacy via
assisted conception could not be found or declared to be a legal parent
under the FLA.
... The application of these principles to s 60H and s 60HB was not discussed in this hearing. It follows, that without the benefit of argument, a cautious approach to the issue is necessary. However, it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.
The effect of this is that unless an order is made in favour of the
applicant pursuant to the Surrogacy Act, the provisions of the
Act do not permit
this Court to make a declaration of parentage in his favour. Thus, on
reflection, I am inclined to respectfully
agree with Watts J in Dudley and
Anor & Chedi [2011] FamCA 502, where at [29] his Honour determined that
ultimately state law will govern the determination of parentage [of children
born under
surrogacy arrangements] and that state law will be recognised by
federal law.[71]
It
remains to be seen whether the combined weight of Ryan and Watts JJ’s
analyses on this point will sway other members of the
court in their
interpretation. As all of the cases involve undefended proceedings brought by
genetic fathers with no contrary view
put, even in the few cases in which ICLs
have been appointed, it appears that there is no one to vigorously agitate this
question
in Family Court litigation. There is also the prospect, raised in
Blake, of other courts extending this approach to creatively interpret
‘birth parents’ in adoption legislation in uncontested
proceedings.
Thus, in addition to the arguments I have made above about legislative intent, I
raise several policy concerns below
about ‘finding fathers’ in this
way.
Unintended Consequences
There are serious unintended consequences of finding the existence of legal
status of a male genetic parent in assisted conception
when the birth mother is
not in a relationship with him. Two contexts are noted here; single women within
Australia using sperm donors
and surrogate mothers in destination countries
engaging in surrogacy with Australian intended parents.
Many thousands of
women in Australia who have utilised donor sperm in an assisted conception
procedure under the belief that they
are the sole legal parent would suddenly
have a legal father to their child under the enlarging interpretation of
the FLA (despite the provisions of state law in place for decades which clearly
severed such status)[72] with all of
the attendant presumptions, mandatory considerations and restrictions that
follow from this. Because this approach is
premised on genetics and the
inconsistent drafting in 60H, it extends to sperm donors in every assisted
conception procedure that
has taken place to date in Australia in which the
birth mother was not married or in a de facto relationship at the time of
conception.
This was in fact the result in the recent known donor case of
Groth & Banks in which Cronin J applied the enlarging approach and
went so far as to determine the provision of Victorian state law severing
parental
status for sperm donors invalid by virtue of s 109 inconsistency with
the
FLA.[73]
This approach could also encompass donors who had no involvement with the child
and even unknown donors who were later identified,
for example donors with whom
a mother has made contact via her clinic’s voluntary contact system in
order to satisfy her own
or her child’s curiosity or need for more
information.[74] Single mothers by
choice through assisted conception are therefore rendered extremely vulnerable
by the enlarging
approach.[75]
The enlarging approach also exacerbates adverse conditions for surrogate
mothers. According legal recognition to a male genetic parent
only if the
surrogate is unmarried creates demand driven pressures for overseas surrogates
to be unmarried or divorced. This is of
concern because single and divorced
surrogates are less likely to have emotional and financial support avenues
available to them;
this both impairs the likelihood of informed consent and
increases the chance of adverse long term consequences from the surrogacy
arrangement. Creating demand for single surrogates is troubling because they are
less likely to have had children of their own and
have completed their family
(which is established practice in the US both to ensure informed consent to the
process and to decrease
the likelihood of regret or difficulty with
relinquishment). Creating demand for divorced surrogates means that some married
surrogates
may be pressured to obtain a divorce in order to proceed with
arrangements with Australians. It is notable that there was conflicting
evidence
about the relationship status of the surrogate in Ellison as well as a
number of hasty divorces in the other Thai cases that could be queried in this
light.[76] Even if women undertaking
surrogacy work remain cohabiting with their former husbands, they are placed at
risk in terms of future
economic and legal status because a ‘show’
divorce is unlikely to be accompanied by a property settlement.
Inconsistent Treatment of Male and Female Genetic Links
An ‘enlarging’ approach to parenthood in surrogacy has only ever been applied to male genetic parents. Thus the reification of ‘natural’ parenthood in the dozens of surrogacy applications by consent has been a very partial, gendered and uncritical one.
It is hard to see how the enlarging approach to legal parenthood could ever be applied to a female intended parent who is a genetic parent, because among other things, s 60H is structured around ‘a child who is born to a woman’ and each of the subsections ascribes parental status to the woman that the child is born to. (It is even less likely that an intended mother would be recognised if she were not a genetic parent.[77]) I suggest that it would be impossible to declare a female genetic intended parent to be a legal parent if this meant displacing the surrogate as legal mother, because of the wording of s 60H, the common law approach to maternity in law generally and the clear intent in surrogacy legislation across Australia to preserve the legal status of the birth mother.[78] In this case the only option for an ‘enlarging’ approach would be to add the intended mother as a third parent.[79] This would be a wholly new approach for Australian law, and furthermore would not address the problem of only partially effective or ‘limping’legal parentage identified above, as it would not sever the status of the birth mother.
It is important to register the uneven genetic links in surrogacy as well as
the inequitable way they are regarded in law. While many
arrangements with
heterosexual couples[80] will
involve both partners’ gametes, a third or more involve an egg
donor.[81] I suggest that
international arrangements are even more likely than domestic ones to involve an
egg donor, due to difficulty in accessing
donor eggs within Australia and the
added difficulty for parents of negotiating gestational surrogacy arrangements
involving both
a surrogate and an egg
donor.[82] It is problematic that
the ‘enlarging’ approach to parenthood has led to declarations that
a male genetic parent is a
legal parent while the position of the female genetic
parent who is an egg donor in such arrangements has been universally ignored.
Applying the same reasoning to an egg donor’s status would require that
she sign citizenship and DNA testing documentation
and take part in proceedings
at the very least. I am not suggesting that this is a desirable approach; rather
that this contrast
exposes the unstated role of ‘intention’ in
treating the provider of sperm as a parent and the provider of the egg as
someone who is of no interest whatsoever. Intention is relevant to
parenting, particularly in assisted conception, not least of all because it
flows through into the practice of caregiving.
However, care should be taken
about the way that it is accepted and translated into legal determinations of
parental status for a
number of reasons. At present, the forum of the Family
Court is precisely not the one chosen by the legislature to carry surrogacy
agreements into effect, and it is doing so in consent proceedings in which the
only evidence of intention is presented by the applicant.
The unexamined manner
in which ‘intention’ comes into play in these cases is therefore
troubling.[83] An exclusive focus on
the sperm provider has also led to an implicit acceptance of anonymous egg
donation in international arrangements,
a practice prohibited in regulated
assisted conception in Australia on the basis that it is clearly in
children’s interests
that they should be able, if they chose, to access
this information later in life.
Looked at in this way the
‘enlarging’ interpretation of the ‘natural’ and
‘ordinary’ approach
to parenthood is in fact a position which
privileges fatherhood through the male genetic link of intended parents (and by
extension
sperm donors) and completely excludes motherhood based on female
genetic links, whether of intended parents or egg donors. What does
it mean to
recognise male genetic parents and not female ones? No Australian court has
openly grappled with this question.
The discriminatory consequences of
this approach are largely masked in the context of consent applications to the
Family Court in
which female intended parents support their male partner’s
application for parental status and either make do with parental
responsibility
or utilise his status to access the avenue of step parent
adoption.[84] However her lack of
status will have a profound effect if the couple separate without her having
obtained parental rights, for example
she will not have any of the presumptions
or mandatory considerations that flow from parental status in the FLA or child
support
legislation. Legal parenthood is the ‘gateway for children through
which many legal rights and obligations
flow’.[85] The mother’s
own family also lack a legal relationship with the child, for example as
grandparents. The exclusive focus on
the male intended parent’s status may
also contribute to power imbalance within the relationship as he is the legally
recognised
parent and she is not, despite the fact that mothers continue to
undertake the bulk of caregiving.
Subversion of Legislative Intent in
Domestic Surrogacy Regimes
Simply declaring male genetic parents to
be legal parents through the enlarging approach creates the perverse result that
legal parentage
may ultimately be simpler and less costly to obtain for parents
in overseas surrogacy arrangements compared to domestic arrangements.
Blake is a case in point. The arrangement in Blake met none of the
requirements of the Surrogacy Act 2008 (WA), not only because of formal
barriers to paid arrangements and the exclusion of gay male couples from
infertility treatment
and surrogacy orders in that state. There was no evidence
in Blake of counselling, legal advice, records of donor identity or a
contact plan with the surrogate that would be required in domestic surrogacy.
Yet the intended parents were able to utilise the Adoption Act through
application of the enlarging approach to parentage taken in Ellison,
without meeting any of the best practice guidelines laid out in
Ellison. It is also a notable inconsistency that the parents in
Blake were able to access the domestic adoption legislation without any
of the counselling, screening, contact plans and consent safeguards
(including
cooling off period) that would apply to a domestic adoption. It is hard to see
how the court could have made the same
decision had a domestic surrogacy
arrangement taken place. If intended parents have access to a simpler parentage
process by virtue
of overseas arrangements this generates a substantial
incentive for Australians to undertake overseas surrogacy. It is possible that
the entire clinical and legal process for the intended parents in Blake
was less costly than a local surrogacy
arrangement.[86]
Indeed the
approach of the Family Court of Australia and Family Court of Western Australia
in declaring male genetic parents to be
legal parents may render it even less
likely that any domestic court process at all is invoked by reinforcing popular
misunderstandings
that male genetic parents (especially if listed on birth
documentation) are and always have been legal
parents.[87] This may have the
unintended effect of deterring parents from seeking Family Court orders,
because it affirms male parentage through genetic link alone, as does the grant
of citizenship.
It is hard to understand why parents would undertake the
exacting steps outlined in Ellison if they believe that the male parent
already has parental status.
This approach also provides the opportunity
for legal advisers to utilise mechanisms such as parenting plans (FLA s 63C)
between the
birth mother and the intended father to formalise (or purport to
formalise) the relinquishment of care of the child and exclude the
surrogate’s parental responsibility. This could permit a private and
essentially contract-based approach between ‘the’
mother and
‘the’ father that completely sidesteps all legal safeguards
concerning oversight of the validity of the surrogate’s
informed and
continuing consent. It is notable that such plans, purporting to extinguish the
surrogate’s parental responsibility,
were used (although not commented on)
in a number of the Thailand cases preceding, and including,
Ellison.[88]
Children
and their parents should not be disadvantaged or denied recognition of their
relationship simply because they have undertaken
overseas surrogacy arrangements
that involved payment.[89] But nor
should the Australian system generate procedural or substantive advantages for
those overseas arrangements compared to domestic
surrogacy,[90] or contribute to
perverse incentives towards social and legal practices that are potentially
harmful.
‘Limping’ Legal Parentage
The enlarging approach centres the birth mother and genetic father in an unrealistic ‘birth parent’ dyad that reflects neither the genetic nor intended parenthood involved. Ad hoc decisions to ‘add’ a (male) parent as discussed above apply only to limited statutes, may not translate into state law,[91] and do nothing to recognise a female intended parent, whether genetic or not. This approach also fails to address the severing of the parental status in Australian law of the surrogate (and partner if any). This creates a form of partial or limping legal parentage. Thus we see DIAC grant citizenship by descent, but as noted earlier, DFAT through the passports office continues to recognise the parental status of the surrogate and now instructs intended parents that the surrogate must consent not just to the issue of the child’s first passport but to every subsequent passport (at five year intervals) until the child reaches the age of 18.[92]
Simply ‘adding’ a father does not grapple with the reality that a child is born into one family and will be raised in another, with a mix of genetic, gestational and social parentage that cuts across these families. It also does not resolve the web of legal relationships involved in the child’s extended family, including siblings and grandparents.
Some Possible Solutions: A Federal Role
A fair regime of parentage in surrogacy must
treat both intended parents equally and not privilege male parents at the
expense of
female parents. Any reform solution should also treat domestic and
overseas arrangements with parity and as far as possible provide
the same level
of safeguards and protections to participants. These are simple principles to
state but tremendously difficult to
actualise. In addition, any federal action
has to be considered in light of Constitutional constraints and, if within
power, the
possibility of invalidating inconsistent state law.
While
there may be some benefits to a national system of parentage, birth registration
is currently in the hands of the states. The
states have largely harmonious
systems of according parentage in assisted conception. In recent years all of
the states have introduced
regimes for the transfer of parental status in
surrogacy which, while they differ in many of the substantive eligibility
requirements
and procedural details, have broadly similar frameworks of
post-birth transfer with court oversight. I have argued elsewhere that
these
systems are too complex and not flexible
enough.[93] Hopefully they will be
improved in the near future through, for example, the introduction of greater
discretion, as state governments
become aware of how little used they are in
comparison to the Family Court. I suggest that the role of the Commonwealth is
to augment
the state based regimes for transfer of parental status and
specifically to co-ordinate the approach to legal parenthood and citizenship
which until now has been unhinged.
Whether any future reforms would be constitutionally valid will depend
upon a more detailed analysis when the scope of the reforms
is determined; as,
for example, the High Court might take a different view of provisions which
purported to cover all children born
via surrogacy, compared to one which
addressed only those excluded by state surrogacy regimes or only those born
abroad. Equally,
it might take a different view of a provision which purported
to declare genetic parentage as compared to one which transferred parentage,
or
which reflected foreign parentage. For present purposes it is sufficient to note
that there are a number of possible bases of
Commonwealth power to allow the
Family Court to make a range of orders affecting parental status in surrogacy
families. These include
the court’s current powers to make parenting
orders and orders for the ‘welfare’ of children as a matrimonial
cause
or a matter concerning the ‘custody and guardianship’ of
children of unmarried parents, and ancillary matters, through
the states’
referral of powers that took place between 1986 and
1990.[94] An additional basis for
Commonwealth power concerning children born overseas would be the citizenship
power, because parentage is
inextricably linked to the grant of citizenship by
descent. If there were any lingering doubt, the external affairs power could be
invoked in the future through a specific Hague Convention on International
Surrogacy or through present conventions guaranteeing
more general rights such
as nationality and parental status.
At the outset there is the
fundamental question of whether a federal regime should take the narrower
approach of only addressing offshore
births or a broader approach to grant the
Family Court what is effectively a supplementary jurisdiction in surrogacy if it
is in
a child’s best interests to do so when there is no Australian parent
and state law makes no provision for the intended parents
to acquire parental
status.[95] The benefit of this
latter approach is that it could catch domestic surrogacy arrangements which
fall outside of eligibility (eg
couples who have undertaken surrogacy in another
Australian state and are unable to use the law of that state or their own to
transfer
parentage).[96] The
disadvantage of this approach is that it could lead to an unclear demarcation of
federal and state powers.[97]
There is likely to be some conflict and varied impact in terms of the
effect on state law whichever path is taken, in part because
the states
themselves have different approaches to the recognition of federal orders
concerning parentage. A declaration of parentage
under s 69VA is conclusive in
all Commonwealth law, but a declaration, finding or order of parentage from the
Family Court does not
necessarily carry through to state law and it is the
states which register births and control birth records. Under the parentage
laws
of NSW, the ACT and Queensland, a previous finding of parentage made by any
other state or Commonwealth court gives rise to
a conclusive presumption of
parentage.[98]
In Tasmania and the Northern Territory parentage laws contain similar provisions
but these only apply to the findings of a prescribed court, and none are
prescribed in the relevant regulations in either
jurisdiction.[99]
In South Australia the Act refers only to findings of paternity by a
‘court of competent jurisdiction’ and only concerning a child born
outside
marriage.[100]
In Victoria the statute refers to findings ‘made outside Victoria’
by a state or Commonwealth court as ‘prima facie
evidence’ of
parentage, but the provisions on assisted conception are said to prevail over an
inconsistent court
order.[101]
Thus it appears that any new form of parentage transfer or recognition of
parents in surrogacy in the Family Court, just like the
declarations made under
the previous ‘enlarging approach’, would have the effect of flowing
into only a few state laws,
unless by reason of inconsistency the federal
provisions were held to invalidate the state
provisions,[102] or if the states
introduced a specific new recognition measure. In effect, this latter option
would be a mirror of the current approach
of s 60HB which involves the FLA
recognising the state parentage transfer order. This would be more simply
achieved if each jurisdiction
were covering different children, ie the states
addressed domestic births and the federal laws addressed offshore
births.
Below I consider the apparently simple pathway of offering
statutory recognition through the FLA of foreign parentage through birth
registration or court orders, before going on to consider the more unwieldy but
principled solution of federal transfer of parentage
through the Family Court.
Recognition of Foreign Birth Certification or Court Orders in
Surrogacy
As noted at the outset of this paper, the FLA already
provides for the possibility of recognition of foreign parentage law in two
provisions: a rebuttable presumption of parentage from a prescribed jurisdiction
under s 69R and a conclusive presumption of parentage
based on the finding of a
court from a prescribed jurisdiction under s 69S(1). Either, or both, of these
provisions could be utilised
to provide recognition of parentage in overseas
surrogacy arrangements in the FLA through the simple mechanism of prescription
of
certain destination countries in the Family Law Regulations.
The simplicity of a recognition approach prescribing overseas
jurisdictions is very attractive to lawyers and parents who are caught
in the
Gordian knot that the current conflict of laws produces. However, I argue that
it should not be adopted because none of the
major destination countries
currently utilised by Australians have an approach to the regulation of
surrogacy or oversight of legal
parentage that meets even the most basic
standards of Australian law. The parentage provisions for surrogacy in the laws
of India,
Thailand, the US and Canada are briefly outlined below to illustrate
the gulf that exists between their laws and those of Australia,
which, while
imperfect and inconsistent in themselves, evince a common commitment to a
post-birth process entailing court oversight
to ascertain the consent, and
evaluate the welfare, of all parties
involved.
India
Assisted reproduction is not regulated by
law in India at present,[103]
although there are established policies and practices in operation by virtue of
the National Guidelines for Accreditation Supervision and Regulation of ART
Clinics (2005)[104] and
Guidelines by the Indian Council of Medical Research under the Ministry of
Health and Family Welfare (2008).
Surprisingly, given the high
incidence of surrogacy in India, there is no express legislative basis for the
determination of parentage
and registration of surrogacy births. The practice of
listing intended parents on birth certificates is a result of the application
of
health and ART guidelines to genetic intended
parents.[105]
This practice was then extended informally to record intended mothers in
heterosexual couples on birth registers where the absence
of a genetic link to
her was not necessarily apparent. In a 2008 decision the Gujarat High Court held
that it was not correct to
record a non-genetic intended parent and made an
order that the non-genetic intended mother’s name be removed from the
birth
certificate and replaced by the (non-genetic) surrogate’s
name.[106] Much litigation
followed that decision and it was taken to the Supreme Court of India but did
not ultimately result in a judicial
determination.[107] It is my
understanding that in instances in which there is only one genetic intended
parent and the surrogate is not herself a genetic
parent it is common in India
to produce birth certificates that record only the genetic parent and either
leave the other space for
parent blank or enter the word
‘Surrogate’.
The Assisted Reproductive Technology
(Regulation) Bill 2010 was developed by the Indian Council of Medical
Research[108] and approved by the
Minister of Health. The Bill has not yet been
enacted.[109] The Bill provides
for commercial surrogacy agreements to be enforceable and provides for the birth
certificate to be issued in the
names of the intended parents with no judicial
process.[110] The Bill provides
that the identity of the surrogate or the egg donor cannot be released to anyone
without a court
order.[111]
Thailand
There is no specific law on surrogacy in Thailand. An egg donor has no
legal status as a parent and current practice favours anonymity.
In
Ellison the court accepted expert evidence from a Thai lawyer on issues
of parentage which was to the effect that this will vary depending
upon whether
the surrogate is married or not. If the surrogate is married, a child is
presumed to be the child of the surrogate and
her husband. If she is unmarried,
a father can gain legal status only through marriage, a court order or through
an application with
the consent of both mother and child when the child is a
minimum of 7 years old.[112] The
expert attested a male genetic parent applying to extinguish the
surrogate’s parental rights would have limited prospects
of success.
In 2010 draft law 167/2553, the Assisted Reproductive Technologies
Bill, was approved by Cabinet, but to date it has not been
enacted.[113] Secondary sources
state that the Bill will restrict the practice of surrogacy but will also
provide for recognition of parentage.
If passed, the Bill would prohibit payment
to surrogates of sums above expenses and restrict who may be a surrogate (only
married
women who have previously given birth and who may not use their own eggs
in the surrogacy) as well as who may be a commissioning
parent (legally married
and medically infertile couples). The Bill would provide in these limited
circumstances that the child is
deemed the legal child of the intended parents,
but it is not clear whether a court or administrative process is required to
achieve
this.[114]
USA
Surrogacy is regulated on a state by state basis
in the United States. While the US has the longest established international
practice
in surrogacy, most states still do not have specific legislation
concerning
surrogacy[115]
and have simply adapted existing parentage declaration rules. Many states have
developed judge made law that allows for pre-birth
declarations of
parenthood for the intended parents (where the court elects among the competing
presumptions of maternity and paternity) and/or
summary post-birth declarations
with streamlined second parent adoption processes. In a 2011 overview of US law
by Hinson and McBrien
they identify 22 ‘vacuum’ states with no
specific law on surrogacy, and divide them into those in which pre-birth
parentage
orders in surrogacy can usually be obtained, those in which practice
is unpredictable, and those in which such orders are typically
not
granted.[116]
In general,
court processes in the US differ from those in Australia in that they do not
transfer legal parentage under specific surrogacy legislation, rather
they consider competing presumptions concerning parentage under general
parentage laws, and declare legal parentage. In many US states,
therefore, if both intended parents are genetic parents, only one birth
certificate is ever issued
- in the names of the intended parents. This is in
contrast to Australian states where the presumptions concerning parentage in
assisted
conception are conclusive and the birth mother is always a legal parent
at the time of birth. The original birth certificate in all
Australian states is
therefore issued in the name of the surrogate and her partner, if any.
The laws of parentage in three major surrogacy states of the US are
outlined briefly below to illustrate the extent of this
difference.
California
California has a long history of
commercial surrogacy despite having had no legislation expressly governing
surrogacy until 2013.
The general California Family Code permits
pre-birth declarations of parentage, which have been utilised for consent based
orders
in commercial surrogacy arrangements for
decades.[117]
Express
legislative regulation of parentage in surrogacy occurred in a new provision in
the California Family Code (§7960-7962) effective from 1 January
2013.[118] The new provision
requires that agreements for gestational surrogacy are in writing, dated and
witnessed and must be entered into
prior to the conception
attempt.[119] As long as both
intended parents and surrogate are independently legally represented and all
parties attest to the accuracy of the
agreement (under penalty of perjury) then
the statute renders the agreement presumptively valid (3(f)) and, once
filed with the court, establishes the parent-child relationship to the exclusion
of any general parentage presumptions
(3(e), (f)). Pre-birth orders are
explicitly provided for (3(f)(2)) and both genetic and non-genetic
parents in a gestational surrogacy arrangement are equally eligible for a
pre-birth parentage declaration
utilising the summary
process.
Massachusetts
Like California, Massachusetts has
had a long history of surrogacy and developed case law in the absence of any
statutory provision.
Although the general family law provides that ‘in the
case of any complaint brought prior to the birth of the child’
no final
judgment on paternity can be made, the Massachusetts Supreme Court has granted
uncontested applications for pre-birth parentage declarations in a number
of cases involving gestational surrogacy where both intended parents
were
genetic parents.[120] Snyder and
Byrn suggest that a non-genetic parent would need to utilise second parent
adoption provisions, as was the case in California
prior to the recent
legislative
changes.[121]
Illinois
Illinois
introduced comprehensive surrogacy legislation almost a decade
ago.[122] Like the new Californian
Act, the surrogacy agreement is presumed enforceable in Illinois if it is valid.
The Illinois Act is considerably more detailed in its requirements than
the Californian Act, or any other US state law, with strict
eligibility
requirements set for both the surrogate (minimum age of 21, previous child) and
intended parents (at least one genetic
link, certified medical need for
surrogacy) as well as detailed procedural requirements (medical and mental
health evaluation for
surrogate, health evaluation for intended parents,
independent legal advice for all parties, agreement in writing, witnessed,
payment
to be made only through an independent trust account).
In this
sense the Illinios Act looks a lot more like the Australian approach to
regulation of surrogacy than any other US state. However,
Illinois is unique in
the US in that the Act allows for parentage to be established immediately upon
birth through the surrogacy
agreement alone, without any court process at all
(although the Californian process is a simple filing
requirement).[123] This places the
provision of legal advice[124] and
pre-conception counselling as the only safeguards, with no avenue for a
post-birth change of mind.
Canada
Commercial surrogacy
brokers are permitted in Canada, as long as the surrogate herself is not paid
above expenses. The determination
of permitted expenses in Canada is extremely
unclear because the legislative provision requires regulations, and no
regulations have
been
proclaimed.[125] Brokerage
practice has been characterised as
‘murky’[126]
and commentators contend that there is a significant underground practice of
commercial
surrogacy.[127]
Case
law has developed in most provinces to allow for streamlined declarations of
parentage in surrogacy through summary processes.
Karen Busby has summarised the
Canadian position as follows:
The general approach in Canada of legislators, courts and administrators,
with the exception of Quebec, has been to attach few evidentiary,
substantive or
procedural requirements to surrogacy-related parentage applications. In the
absence of statutory reform, judges and
administrators have nonetheless made
parentage declaration orders in favour of intended parents. No jurisdiction
requires formal
judicial or administrative approval prior to conception.
Inquiries are neither required nor made into the circumstances of the surrogacy
arrangement under either statutory or judge-made law, such as the surrogate
mother’s capacity to consent or the financial arrangements
or the intended
parent or parents’ fitness. While applications can be made immediately
after birth, in most jurisdictions the
surrogate mother must give consent
post-birth and she must be given notice of the proceeding and would therefore
have an opportunity
to express any concerns. Parentage applications can be made
regardless of where the child was born as long as the parents are domiciled
in
the province where the application is
made.[128]
Parentage
has largely been determined in favour of intended parents using court based
post-birth processes, whether or not specific
legislative provision was
made.[129] In contrast, courts in
British Columbia developed a practice more akin to a number of US states whereby
intended parents could apply
prior to birth for an order regarding birth
registration so that birth documents would be immediately issued in the names of
the intended
parents.[130] On 18
March 2013 the new Family Law Act (BC) came into effect, which changed
the approach in British Columbia, with a provision which expressly determines
parentage in surrogacy.[131] If
the agreement is in writing and made prior to conception, and the surrogate
gives written consent to surrender the child into
the care of the intended
parents on the day of birth or shortly thereafter, and the child is in the care
of the intended parents,
then the intended parents will be directly registered
on the birth record.[132] As in
the US state of Illinois, there is no requirement for any form of court process.
In summary, parentage laws in destination countries differ from
Australia in that summary processes are common and courts, when involved,
do not
transfer legal parentage under specific surrogacy legislation, rather
they declare legal parentage, often prior to birth and almost universally
by favouring genetic parents over the birth mother, regardless of her
consent to
the application.[133] While a
handful have specific legislation with safeguards (including legal advice prior
to the arrangement in Illinois and California
in the US, and a requirement of
written post-birth consent in British Columbia in Canada), these provisions are
minimal efforts at
informed consent. Moreover, such legislation renders the
arrangements presumptively valid and enforceable. This is without court
oversight in Illinois and British Columbia and without any provision for express
post-birth consent in Illinois
or California. The vast majority of women who
undertake surrogacy will not change their minds following birth, but for
surrogacy
to involve a meaningful choice for relinquishment, every arrangement
should allow for this
prospect.[134]
Even a
cursory appraisal of the destination legal regimes discussed here should raise
concerns about their ability to appropriately
assess and safeguard
children’s interests or the surrogate’s informed and continuing
consent. Mere absence of protest
should not be taken to signify a real and
informed choice. For this reason, introducing recognition measures into
Australian legislation
which formally or informally defer to foreign law on
parentage, is not a solution.[135]
However, the use of recognition mechanisms could be very useful in the
future if there were an overseas jurisdiction which met the requisite Australian
standards, through for example
a post-birth consent based transfer with
associated counselling, legal advice and court oversight.
Transfer of Parentage as a Precondition to Citizenship by Descent
The current approach to granting citizenship by descent does not entail any inquiry into the informed consent of the surrogate or the best interests of the child. For most Australian surrogacy families this is their first and last attempt to gain State recognition of their parental relationship. I argue that citizenship should follow and not precede a transfer of parental status. This would help to ensure that most surrogacy arrangements gain court oversight, not just the ones where parents don’t have matching birth documentation or Australian passports. It would also address the problem of limping legal parentage.
A system would need to be developed to enable parents and children to enter Australia and apply for orders, and to address their status until orders were granted. Close co-operation would be needed between the Family Courts, DIAC and DFAT to enable this process to happen with efficiency and clarity. In the UK, where post birth onshore orders are also required, Ministerial discretion to enter was originally used, but has been replaced by a standard six month visa and, since 2010, citizenship by descent automatically follows from parental orders.[136]
In order to distinguish surrogacy from international adoption, evidence of a
pre-conception agreement and a genetic link with one
or both intended parents
would usually be a pre-condition (except in exceptional
circumstances).[137] In
Ellison the court emphasised the need to use a DNA test to establish
genetic link undertaken in compliance with the
regulations.[138] Fraudulent
documentation is not a remote
risk,[139] nor is the prospect of
mistakes and mix-ups in clinic
practice.[140] Both Thailand and
India have been subject to sustained criticism about ethical standards in
assisted reproduction and adoption, including
concern about trafficking in
children, and as discussed above, continue to operate in uncertain legal
frameworks.[141]
The
experience of Australian state regimes to date should caution against the
imposition of inflexible rules or overly complex processes.
Yet the particular
complexity of overseas arrangements, especially where they involve structural
power imbalances including those
of access to income and information, as well as
language barriers, also means that summary processes are ineffective and
dangerously
misleading.
I suggest the introduction of a two track court
based process to facilitate decision-making, which would occur according to the
same
overarching principle of the child’s best interests and rules on
consent, but reflect reliance upon a better standard of evidence
in certain
arrangements.
Streamlined or expedited court proceedings could be
utilised for arrangements that broadly meet minimum safeguards for informed
consent
that are common across the surrogacy regimes in Australia, or
other established clinical and ethical
standards,[142]
including for example, drawing on the Ellison guidelines or other
standards yet to be
developed.[143] For instance,
standards could be developed by Australian fertility regulators. Other
commentators have suggested a formal accreditation
process for specific
providers, akin to that used in inter-country
adoption.[144] Intermediaries such
as agencies play a pivotal role in international surrogacy; one which is wholly
unregulated at
present.[145]
In essence a
‘fast track’ could provide clear guidance on best practice and an
incentive for parties to meet such practice
from the start (if well
communicated). I have expressed reservations elsewhere about the renewed role of
legal parentage as a means
to ‘reward’ or punish particular kinds of
pre-conception behaviour in surrogacy laws, and have doubted the utility of
any
post-birth process to achieve such
ends.[146] I stand by these
criticisms, yet am aware that there are ‘demand driven’ changes in
the practices of surrogacy providers
in destination countries and have come to
believe that intended parents (and their States) can play a role in alleviating
as well
as exacerbating practices of concern. The regime I suggest here would
offer a simplified form of process, not a difference in substantive
rights, to
parents who can comply with established standards, and would operate without
excluding those who cannot.
Informed consent of the surrogate to the
arrangement would require evidence of independent therapeutic counselling and
legal advice
in advance of the conception attempt in the destination country.
Informed consent to the relinquishment of parental status would
require post
birth consent to the Australian court proceedings from the surrogate such that
her participation in proceedings (through
affidavit at a minimum) would be
required. If the surrogate’s first language is not English this
necessitates evidence of translation
of all documents into her first language,
including reading and audio recording those documents if she is not
literate.[147] Even stating these
bare minimums highlights further difficulties: how, for example, to ascertain
the independence (and quality) of
‘independent’
counselling[148] and legal advice?
In most destination countries provision of such crucial services (where provided
at all) is closely tied to brokers
and clinics, who are effectively the repeat
client.
An ICL provides an important protection where evidence is
incomplete in undefended proceedings or where questions of fact or law are
left
open. The approach suggested in Ellison, requiring an ICL to represent
the child in every application and a Family Report for every case, could be
reconsidered. Arrangements
that met minimum standards might not require such
safeguards, for example if the evidence of the child’s identity and the
surrogate’s
informed consent was robust, and all parties had undertaken
pre-conception information-giving, advice and counselling.
Equally, it
is worth considering whether a Family Report should be dispensed with in cases
where the evidentiary basis is sound and
standards met, as well as exploring
what role a Family Consultant could play in cases where this was less clear. To
date, the Family
Consultant has been utilised rarely in surrogacy cases in the
Family Court, and only to provide a report on the intended parents
who are
already the child’s primary
caregivers.[149] Consideration
could be given to utilising the Family Consultant to interview the surrogate
(even if she is not present, for example
through use of video conferencing
facilities) as well as to whether the Consultant could have a role earlier in
the process.
As the Australian state and territory processes are loosely
based on the UK system,[150] and
have not yet been independently evaluated, recent UK research into the role of
the court consultant is germane. In the UK parentage
transfer process the
‘Parental Order Reporter’ prepares a report for the court after
having interviewed both surrogate
and intended parents in domestic arrangements,
or just the intended parents in offshore
arrangements.[151] Research by
Marilyn Crawshaw and colleagues found that reporters were uncertain about which
aspects of the arrangement they should
comment on and were very concerned that
they had limited access to earlier assessments (if any) carried out by surrogacy
agencies,
with most feeling that they had entered the process too
late.[152] Notably, those
interviewed reported that orders were still granted in every case in which they
expressed reservations. These findings
suggest a need for continued reflection
about the utility of post-birth processes.
Any future changes to substantive law or to legal processes should be accompanied by transition arrangements and public education to enable parents and their advisers time to adjust. There has been considerable confusion and uncertainty in this field and it would be unfortunate if any future reform added to it. If new laws entail broader coverage or other beneficial effects then they should also build in flexibility to accommodate past surrogacy arrangements. So, for example, if parents wish to obtain parentage transfer for existing or older children born prior to the amendments this should be possible (rather than applying a rigid age limit as the UK still does).[153]
Conclusion
In considering whether the transfer of the physical custody and legal parentage of children in surrogacy can be done fairly and safely, trans-national arrangements pose particular challenges. Like many other commentators, I believe that the best response to problematic practices in transnational surrogacy is to develop measures to make surrogacy more accessible on a domestic basis.[154] In the meantime, courts and governments must struggle to keep up with the development of increasingly complex international arrangements in an ever widening range of countries.[155] This is challenging not least because some practices evolve in response to attempts at legal oversight and seek to evade regulation or to capitalise on ‘loopholes’.
To date, the Family Court has witnessed only the tip of the iceberg in terms of the number of children being brought into Australia as a result of international surrogacy arrangements. A pragmatic response has been to chase these developments, granting parental responsibility and at times ‘finding fathers’ along the way. These solutions have been developed on the run and have themselves contributed to further problems of uncertainty, inequitable results and perverse incentives for harmful social practices. It is important to face the challenge of parentage in international commercial surrogacy in a direct and holistic manner. The Family Law Council is currently considering a response to these challenges,[156] but without a co-ordinated approach across government any response will fail.
In this article I have tried to articulate a proposal for a system which continues to centre the gestational relationship in legal parentage while providing for recognition of surrogacy families. In doing so I recommend a clear demarcation between state and federal jurisdictions with both empowered to grant post-birth consent based transfer of parentage with court oversight using broadly similar principles. There is a constant and inescapable tension between the concern to guard against unsafe practices and the goal of creating an environment of legal certainty for children born into this minority family form; one which can accord caregiving relationships legal status without undue interference or punitive effect. If recognition measures are inflexible or stigmatising, they are likely to be underutilised, as the Australian state systems arguably are at present.
[◊] Professor of Law, UTS.
This research was funded through ARC Grant DP0986213 and UTS: Law. Thanks to Sam
Everingham, Alex Harland,
Stephen Page and Michaela Stockey-Bridge for
discussion of the issues, Anita Stuhmcke and the two journal reviewers for their
comments
on an earlier version of this paper, and Emma Butler for research
assistance.
[1] Surrogacy is an
‘arrangement by which one woman (the surrogate mother) carries and bears a
child for another woman or couple
(the commissioning mother, or commissioning
parents) to whom she will transfer custody at or shortly after birth’:
National
Health and Medical Research Council, Ethical Guidelines on the Use
of Assisted Reproductive Technology in Clinical Practice and Research
(2007), 92. In this article I generally refer to the birth mother as ‘the
surrogate’ although I accept that such terminology
is contested. I
understand the desire of both surrogates and intended parents to drop the word
‘mother’ given that she
is not going to perform a maternal role
beyond pregnancy (see eg Elly Teman’s detailed discussion of terminology
including
the common use of ‘innkeeper’ in Hebrew in: E Teman,
Birthing a Mother: The Surrogate Body and the Pregnant Self (2010), Ch
2). Like Teman, I refuse to adopt the common US terminology of
‘gestational carrier’ whereby pregnant women are characterised
as
things not people.
[2] H Jones, I
Cook, R Kempers, P Brisden and D Saunders, ‘International Federation of
Fertility Societies’ Surveillance
2010: Preface’ (2011) 95
Fertility and Sterility 491.
[3] See Australian Institute of
Health and Welfare, Adoptions Australia 2011-12, AIHW, Canberra (2012).
Michaela Stockey-Bridge notes that many of the intended parents in her
ethnographic study of Australians
undertaking surrogacy in India had explored
adoption and were either ineligible or had been deterred by long waiting times
and uncertainty:
M Stockey-Bridge, Submission to Family Law Council
Surrogacy Inquiry, June 2013. The Inquiry is due to conclude in December
2013 and has stated that it will publish submissions on its website at that
time: http://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Pages/FamilyLawCounciltermsofreference.aspx
(accessed 28 July 2013).
[4] See A
Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia: A Call
for Review’ (2011) 18 Journal of Law and Medicine
601.
[5] A Macaldowie, Y Wang, G
Chambers and E Sullivan, Assisted Reproductive Technology in Australia and
New Zealand 2010, AIHW, Canberra (2012), 45. The previous year there were 19
surrogacy births in regulated treatment: Y Wang, A Macaldowie, I Hayward,
G
Chambers and E Sullivan, Assisted Reproductive Technology in Australia and
New Zealand 2009, AIHW, Canberra (2011),
41.
[6] Department of Immigration
and Citizenship (DIAC), ‘Citizenship by Descent Applications Granted to
Infants by India and USA
Posts’ (5 May 2012). This data shows grants of
citizenship to children abroad aged less than 60 days. While it is not possible
to identify which of these children were simply born to Australian citizens
living abroad, it is notable that while the figure for
the US remained stable
from 2008 to 2011, the figure for India more than doubled in that time. Research
into both Australian parent
reports and foreign clinic and agency reports by
parents’ group Surrogacy Australia also indicates a dramatic increase in
overseas
surrogacy births to Australians over this period and that they are
mostly occurring in India: see S Everingham, ‘Australians’
Use of
and Attitudes to Altruistic and Commercial Surrogacy: Results of a National
Survey’ (2013) Australian Institute Of Family
Studies Publication Series,
forthcoming.
[7] DIAC, Email
Communication to the Author, in response to FOI request, 11 June
2013.
[8] DIAC,
‘International Surrogacy Arrangements’ Submission to Family Law
Council Surrogacy Inquiry, June 2013,
5.
[9] This is not a problem
unique to Australia, see M Crawshaw, E Blyth and O van den Akker, ‘The
Changing Profile of Surrogacy
in the UK: Implications for National and
International Policy and Practice’ (2012) 34 Journal of Social Welfare
and Family Law 267. Based on scant information drawn from parental orders,
they note that in 2009 4% of orders concerned births overseas, while in 2011
the
figure was 26%, 271.
[10] See A
Stuhmcke, ‘Extraterritoriality and Surrogacy: The Problem of State
and Territory Moral Sovereignty’ forthcoming
in A Sifris & P Gerber
(eds), Law in Context, Federation Press, Sydney (2013); Everingham
above n 6. I argue elsewhere that
overseas surrogacy will continue to dominate as long as the domestic approach
(which varies from state to
state but which broadly entails bans on payment,
advertising and brokerage) continues to make it hard for intended parents to
match
with surrogates outside their immediate circle of family and friends: J
Millbank, ‘Rethinking Commercial Surrogacy in Australia’
forthcoming
2014.
[11] See DIAC above n 8. The major countries of overseas births
noted by Crawshaw et al in UK parental orders from 2010-2012 were India, the US
and the Ukraine:
above n 9,
271.
[12] In Canada, payments
above expenses to surrogates are prohibited but (ostensibly) non-commercial
arrangements may be arranged by commercial
brokers, discussed
below.
[13] For discussion from a
US perspective see R Storrow, ‘The Phantom Children of the New Republic:
International Surrogacy and
the New Illegitimacy’ (2012) 20 American
University Journal of Gender, Social Policy & the Law 561.
[14] Discussed in Hague
Conference on Private International Law, Preliminary Report on the Issues
Arising from International Surrogacy Arrangements (2012) available at http://www.hcch.net/upload/wop/gap2012pd10en.pdf
(accessed 27 July 2013).
[15] P
Laufer-Ukeles, ‘Mothering for Money: Regulating Commercial Intimacy’
(2013) 88 Indiana Law Journal 1, 15 and
34.
[16] See for example an
overview of the sociological research on (domestic) surrogacy from a legal
perspective in A Campbell, ‘Law’s
Suppositions About Surrogacy
Against the Backdrop of Social Science’ (2012) 43 Ottawa Law Review
29; K Busby and D Vun, ‘Revisiting the Handmaid’s Tale: Feminist
Theory Meets Empirical Research on Surrogate Motherhood’
(2010) 26
Canadian Journal of Family Law 13. For a more detailed ethnographic
account see Teman, above n 1. Nor is
there any evidence that children are harmed, or indeed develop any differently
to other children, as a result of being born
through surrogacy, see eg: S
Golombok, L Blake, P Casey, G Roman and V Jadva, ‘Children Born Through
Reproductive Donation:
A Longitudinal Study of Psychological Adjustment’
(2013) 54 Journal of Child Psychology and Psychiatry
653.
[17]A detailed feminist
argument for a textured understanding of women’s ‘choice’ in
the context of ‘ostensibly
self injurious’ decisions such as
undertaking commercial surrogacy or sex work is made by A Campbell, Sister
Wives, Surrogates and Sex Workers (forthcoming Ashgate, London 2013). Issues
of structural inequality, particularly in transnational practices, are
ever-present, but
this does not justify a failure to attend to women’s
lived experiences: see A Bailey, ‘Reconceiving Surrogacy: Towards
a
Reproductive Justice Account of Indian Surrogacy’ (2011) 26 Hypatia
715. I follow Amrita Pande’s approach that surrogacy is not a moral
dilemma to be solved, it is a structural reality to be
understood, see A Pande,
‘Commercial Surrogacy in India: Manufacturing a Perfect
Mother-Worker’ (2012) 35 Signs
969.
[18] See eg S Page,
Submission to Family Law Council Surrogacy Inquiry, June 2013; Surrogacy
Australia, Submission to Family Law Council Surrogacy Inquiry,
June 2013.
[19] See discussion in
Re Mark [2003] FamCA 822; (2004) 31 Fam LR
162.
[20] An omission not
observed in the decision of McGee & Duchampes & Ors [2010] FamCA
1230.
[21] And note that the
regulations expressly provide that any prescription under 69S(1) would be
rebuttable: Family Law Regulations 1984 (Cth) Reg
39B(4).
[22] See Family Law
Regulations 1984 (Cth) Reg 39BA; Schedule 4,
4A.
[23] See Status of
Children Act 1996 (NSW), s 14; Status of Children Act 1974 (Vic), ss
10A-E, ss 11-16; Artificial Conception Act 1985 (WA), ss 5-6A;
Parentage Act 2004 (ACT), s 11; Status of Children Act 1978 (Qld),
ss 15-23; Status of Children Act 1974 (Tas), s 10C; Status of Children
Act 1978 (NT), s 5A-F; Family Relationships Act 1975 (SA), s 10C. See
discussion of the extra-territorial effect of these provisions in Mary Keyes and
Richard Chisholm, ‘Commercial
Surrogacy: Some Troubling Family Law
Issues’ this issue, page 10 of draft, fn
35.
[24] Mason & Mason
[2013] FamCA 424, [28].
[25]
Discussed in J Millbank, ‘De facto Relationships, Same-Sex and
Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal
Relationship Reforms’
(2009) 23 Australian Journal of Family Law
160.
[26] Parentage Act
2004 (ACT) Divs 2.4–2.5; Surrogacy Act 2010 (NSW) Pt 3;
Surrogacy Act 2010 (Qld) Ch 3 Pt 2; Family Relationships Act 1975
(SA) Pt 2B Div 3; Surrogacy Act 2012 (Tas) Pt 4; Status of Children
Act 1974 (Vic) Pt 4; Surrogacy Act 2008 (WA) Pt 3. Discussed in J
Millbank, ‘The New Surrogacy Parentage Laws in Australia: Cautious
Regulation or ‘25 Brick
Walls’?’ [2011] MelbULawRw 5; (2011) 35 Melbourne
University Law Review 165.
[27] See M Keyes, ‘Cross
Border Surrogacy Agreements’ (2011) 26 Australian Journal of Family
Law 28.
[28] See
Parliamentary Debates, Senate Hansard Same-Sex Relationships (Equal
Treatment in Commonwealth Laws-General Law Reform) Bill 2008 in Committee,
24 November 2008, 19: ‘The amendments I have outlined also insert a
revised section in the Australian Citizenship Act to provide for recognition of
children born to same-and opposite sex couples as a result of artificial
conception procedures and
surrogacy arrangements’ (Senator
Wong).
[29] Australian
Citizenship Instructions (‘ACI’) (2013) 4.9.4. See also DIAC,
‘Fact Sheet 36a – International Surrogacy Arrangements’ (2012)
http://www.immi.gov.au/media/fact-sheets/36a_surrogacy.htm
(accessed 17 July 2013).
[30]
Ibid 4.12.3, 4.12.4. See also DIAC above n 8.
[31]
H v Minister for Immigration and Citizenship [2010] FCAFC 119,
[127].
[32] And see discussion of
the generalia specialibus rule of statutory construction concerning
exactly this question in parentage provisions of the FLA in a recent
international surrogacy
case: Mason & Mason [2013] FamCA 424,
[27]-[35].
[33] This is based
on reports of parents and agencies at the 2013 Surrogacy Australia Conference.
[34] And see eg Dennis and
Pradchaphet [2011] FamCA 123, [18] and Collins and Tangtoi [2010]
FamCA 878, [16] referencing the Thai birth certificate as a basis for finding
that the genetic father was a parent, as did McGee & Duchampes &
Ors [2010] FamCA 1230 concerning a South African birth certificate, with no
discussion of s 60H or 60HB.
[35]
See also discussion of earlier versions of instructions on the Australian High
Commission website in New Delhi referring to the terms
of contracts and Indian
law as the basis upon which parentage was determined: Millbank above n 26, 202-203.
[36] See eg discussion in
Collins and Tangtoi [2010] FamCA 878, [9]-[10], where the parents spent
three months in Thailand until they were able to obtain visas for the children
to enable them
to return to Australia; and Dennis and Pradchaphet [2011]
FamCA 123, [6]-[8], a delay of nine
months.
[37] See http://www.thailand.embassy.gov.au/bkok/DIAC_Children_surrogacy.html
(accessed 28 July 2013).
[38] In
neither India nor many US states does the surrogate’s relinquishment of
status involve anything more than the surrogacy
contract itself; there is no
process and no court oversight that would meet any Australian standard for the
permanent relinquishment
of parental status. This is discussed
below.
[39] DFAT, ‘Applying
for a passport for a child born through surrogacy’ http://www.dfat.gov.au/passports/surrogacy/
(accessed 7 August 2013). While this is an indication of post birth consent,
which was not previously required, it still involves
no more than notarised or
witnessed signature on a form filed by the intended
parents.
[40] Note that Watts J
did in fact refer files for prosecution in two cases and considered doing so in
a number of others, discussed in
Millbank above n 26, 206. In Ellison and Anor &
Karnchanit [2012] FamCA 602, Justice Ryan responded by granting a
certificate under the Evidence Act 1995 (Cth) s128 so that the parents
could give detailed and complete evidence without fear of criminal
prosecution.
[41] Gay men are
unable to both be listed as parents on birth documentation issued in India,
Thailand and most US states. (Although some
US states will list both men, it is
still apparent from the documentation that they are not both genetic parents.)
Documents from
India list both genetic parents in a heterosexual couple as
parents, but may not do so if an egg donor was utilised (in which case
the mother’s space may be listed as ‘surrogate’ or left
blank).
Birth documents from Thailand always list the birth mother and will list
the male genetic parent if the surrogate does not have a
husband.
[42] Domestic non-commercial cases include: Lowe & Barry and Anor [2011] FamCA 625; Re Michael: Surrogacy Arrangements [2009] FamCA 691; Hutchens & Franz [2009] FamCA 414; King & Tamsin [2008] FamCA 309; Raines and Anor & Curtin [2007] FamCA 1295. See also McQuinn & Shure [2011] FamCA 139 (Canada).
[43] Re Mark [2003] FamCA 822; (2004) 31 Fam
LR 162 (California); Cadet and Scribe [2007] FamCA 1498 (Ohio) and
Wilkie and Mirkja [2010] FamCA 667
(India).
[44] Many more cases
have arisen since, in which India is the dominant country. See eg Ronalds and
Victor [2011] FamCA 389 (India); Edmore and Anor & Bala [2011]
FamCA 731 (India); Gough and Anor & Kaur [2012] FamCA 79 (Thailand);
Blake & Department for Child Protection [2013] FCWA 1 (India);
Schone & Schone & Anor [2013] FMCAfam 1126 (India); Mason
& Mason [2013] FamCA 424 (India).
[45] Collins and Tangtoi [2010] FamCA 878; Dennis and Pradchaphet [2011] FamCA 123 and Dudley and Chedi [2011] FamCA 502 (Mr and Mrs Dennis are Mr and Mrs Dudley); O’Connor and Kasemsarn [2010] FamCA 987; Findlay and Punyawong [2011] FamCA 503; Johnson and Chompunut [2011] FamCA 505; Herbert and Juntasa [2011] FamCA 504.
[46] Ellison and Anor &
Karnchanit [2012] FamCA 602. But note that the Magistrate in Schone &
Schone & Anor [2013] FMCAfam 1126 (10 October 2012) suggested that an
ICL would not meet the funding guidelines of Victoria Legal
Aid.
[47] See K Busby, ‘Of
Surrogate Mother Born: Parentage Determinations in Canada and Elsewhere’
(2013) 25(2) Canadian Journal of Women and the Law, forthcoming
[48] There have been two contested proceedings in non-commercial arrangements: the first between the intended and birth parents in Re Evelyn [1998] FamCA 2378, (No 2) (1998) 23 Fam LR 73; and the second between the intended parents: Rusken & Jenner [2009] FamCA 282.
[49] Ellison and Anor &
Karnchanit [2012] FamCA 602,
[132].
[50] Ellison and Anor
& Karnchanit [2012] FamCA
602.
[51] Blake &
Department for Child Protection [2013] FCWA
1.
[52] ‘The Department has
instructed me that it is of the view that it is not in the best interests of X
and Y to further delay their
adoption and the Department wishes to agree with
the proposed dispensations without any enquiries being made in
India’: Blake & Department for Child Protection [2013] FCWA
1, [48] (emphasis added).
[53]
See eg, PJ v DOCS [1999] NSWSC 340; Re Births, Deaths and Marriages
Registration Act 1997 [2000] ACTSC 39; (2000) 26 Fam LR 234; A and B [2000] NSWSC 640; (2000) 26 Fam LR
317.
[54] See Millbank above n 25; A Sifris, ‘Known Semen Donors: To
Be or Not To Be a Parent’ (2005) 13 Journal of Law and Medicine
230.
[55] Inserted by the
Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cth) Sch 3. Thus if Re Mark were to be decided today, the
enlarging approach would be precluded by virtue of the fact that the surrogate
was married.
[56] See Family
Law Regulations 1984 (Cth) Reg 12CAA, prescribing the laws of Victoria,
Queensland, WA, ACT, SA and NSW. Tasmania’s 2012 law was only proclaimed
in June 2013 and was not yet prescribed at the time of writing (August
2013).
[57] See eg Status of Children Act 1974 (Vic) s 19 expressly providing that the parentage provisions apply to surrogacy (but do not prevail over a substitute parentage order from the state court).
[58] Mason & Mason
[2013] FamCA 424, [28]. Note also Watts J’s detailed analysis in Re
Michael: Surrogacy Arrangements [2009] FamCA
691.
[59] Human Rights and Equal
Opportunity Commission, Same Sex Same Entitlements Final Report
(2007).
[60] See SameSex
Relationships (Equal Treatment in Commonwealth Laws — General Law
Reform) Bill 2008
‘Explanatory
Memorandum’ (4 September 2008),
[20]-[39].
[61] See Senate
Standing Committee on Legal and Constitutional Affairs, Family Law Amendment
(De Facto Financial Matters and Other Measures) Bill 2008, Report (August
2008) Recommendation 1, discussed [3.99]-[3.123]; Senate Standing Committee on
Legal and Constitutional Affairs, Same-Sex Relationships (Equal Treatment in
Commonwealth Laws – General Law Reform) Bill 2008, Report (October
2008), [2.22], [3.40]-[3.65]; Senate Standing Committee on Legal and
Constitutional Affairs, Same-Sex Relationships (Equal Treatment in
Commonwealth Laws-Superannuation) Bill 2008, Report (October 2008),
Recommendation 2, discussed [3.40]-[3.69]; see also discussion in Millbank,
above n 25.
[62]
In tabling the amendments Senator Ludwig stated, ‘Where a
surrogacy arrangement is involved, opposite-sex married or
de facto couples and female or male same-sex de facto couples will be recognised
as the parents of a child if there is a state or territory court order
transferring parentage to them’: Parliamentary Debates,
Senate Hansard
Family Law Amendment (De Facto Financial Matters and
Other Measures) Bill 2008 in Committee, 16 October 2008, 6253. See
also note 28. The Supplementary
Explanatory Memorandum states that s 60HB will ‘expand the
definition of child to include a child born under surrogacy arrangements’
(emphasis added): Family Law Amendment (De Facto Financial Matters and Other
Measures) Bill 2008, ‘Supplementary Explanatory Memorandum’,
[67]. If the male genetic parent were already recognized under the FLA, the
amendment would arguably have narrowed rather than expanded the
definition of child.
[63]
Standing Committee of Attorneys-General, Australian Health Ministers’
Conference, Community and Disability Ministers’
Conference, Joint Working
Group, A Proposal for a National Model to Harmonise Regulation of Surrogacy
(2009), 3, 8-11, 22. In neither this document nor any of the parliamentary
materials is there any suggestion that male and female
genetic parents are
differently situated in regard to parental status under the FLA, or that male
genetic parents are differently
situated depending upon whether the surrogate is
single.
[64] For example the
court has held that a male genetic parent in surrogacy is not a parent under the
FLA in decisions by MacMillan J
in Gough and Anor & Kaur [2012] FamCA
79 and Watts J in Re Michael: Surrogacy Arrangements [2009] FamCA 691. In
two other cases Watts J declined the applicants’ request to make a finding
that the genetic father was a parents under the
FLA: Findlay and
Punyawong [2011] FamCA 503; Dudley and Chedi [2011] FamCA 502.
Justice Ryan held to the contrary that a male genetic parent is a legal parent
in Ellison and Anor & Karnchanit [2012] FamCA 602; as did Stevenson J
in Dennis and Pradchaphet [2011] FamCA 123; Louglan J in Collins and
Tangtoi [2010] FamCA 878; and Ainslie-Wallace J in O’Connor and
Kasemsarn [2010] FamCA 987. Most recently, Justice Ryan, in a considered
decision, reversed her view to agree with Justice Watts: Mason &
Mason [2013] FamCA 424.
[65]
Dudley and Dennis concern the same intended parents (differently
named by the court’s annonymisers), with children born to different
surrogates.
[66] See above n 64.
[67]
Schone & Schone & Anor [2013] FMCAfam
1126.
[68] Section 60H provides:
(1) If:
(a) a child is born to a woman as a result of the
carrying out of an artificial conception procedure while the woman was married
to, or a de facto partner of, another person (the other intended
parent ); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child
is biologically a child
of the woman and of the other intended parent,
for the purposes of this
Act:
(c) the child
is the child
of the woman and of the other intended parent;
and
(d) if a person other than the woman and the other intended parent
provided genetic material--the child
is not the child
of that
person.
(2) If:
(a) a child
is born to a woman as a result of the carrying out of an artificial conception
procedure; and
(b) under a prescribed law of the Commonwealth or of a
State
or Territory,
the child
is a child
of the woman;
then, whether or not the child
is biologically a child
of the woman, the child
is her child
for the purposes of this
Act.
(3) If:
(a) a child
is born to a woman as a result of the carrying out of an artificial conception
procedure; and
(b) under a prescribed law of the Commonwealth or
of a State or Territory, the child is a child of a man;
then, whether or not
the child is biologically a child of the man, the child is his child for the
purposes of this Act.
[69] See
Family Law Regulations 1984 (Cth) Reg
12C.
[70] All relevant state and
territory laws are prescribed under sub (2): Family Law Regulations 1984
(Cth) Reg 12CA. There are no laws prescribed under sub (3) (child of a man),
perhaps because under state law a male gamete provider
who is not in a
relationship with the birth mother is never the parent.
[71] Mason & Mason
[2013] FamCA 424, [33]-[34].
[73] See Groth & Banks
[2013] FamCA 430. In my view this is wrongly decided, not least of all because
there is no textual provision in the FLA granting sperm donors ‘a
right...that the state legislation...seeks to deprive’ such that,
‘the Acts are, therefore, directly inconsistent’:
Groth &
Banks [2013] FamCA 430, [38]. Rather there is much in the text and structure
of the s 60H provisions as well as the legislative materials suggesting efforts
at consistency and deference to the state regimes. See also note 62.
[74]
In Re Mark [2003] FamCA 822; (2004) 31 Fam LR 162 the court rejected this policy concern as
a reason, and in obiter comments adopted the enlarging approach. Recent research
into single
mothers by choice indicates that they are in fact the most likely
group to make such contact: see eg, T Freeman, V Jadva, W Kramer
and S Golombok,
‘Gamete Donation: Parents’ Experiences of Searching for their
Child’s Donor Siblings and Donor’
(2009) 24 Human
Reproduction 505; D Beeson, PK Jennings and W Kramer, ‘Offspring
Searching for their Sperm Donors: How Family Type Shapes the Process’
(2011) 26 Human Reproduction 2415; C Fletcher, ‘The Stories of
Australian Single Mothers by Choice Through Donor Conception’ (PhD Thesis,
UNSW, 2013).
[75] Both known and
unknown but identifiable sperm donors are also exposed to child support
liability.
[76] In Dennis and
Pradchaphet [2011] FamCA 123 the surrogate and her husband divorced only
weeks prior to the birth, thereby severing his status in Thai law: [13], [15],
[20].
[77] The Full Court has
doubted its ability to grant a declaration of parentage to a non-genetic parent
in cases concerning lesbian couples
since the 2008 amendments, even though the
parent-child relationship is explicitly recognised in s 60H(1) of the Act:
Simpson & Brockmann [2009] FamCAFC 73; (2009) FLC 93-403, [7]-[8]; Aldridge &
Keaton [ 2009] FamCAFC 229, [19].
[78] Moreover, as Laufer-Ukeles
notes in the US context, if law prioritises genetics over gestation in
determining motherhood, this leaves
women who have children through egg donation
unrecognised unless one reaches to ‘intention’ (contract): above n
15, 34. I concur with her conclusion
that ‘[t]he bottom line is that intent, genetics, gestation, and
functional care all matter
in determining parental ties, and it is difficult and
perhaps artificial to separate one out as the exclusive indicator of legal
parenthood’: 36.
[79] There
is only one case to my knowledge where a court has declared there were three
parents. In Ontario a court declared the co-mother
of a child (female partner of
the female parent) as a legal parent using parens patriae jurisdiction.
The sperm donor and birth mother were already legal parents: AA v BB
(2007) 278 DLR (4th) 519. The current Australian context differs in that the
birth mother and female partner would already be parents at
birth.
[80] For gay male couples
only one parent can have a genetic link; while some couples handle this
disparity by each entering a separate
arrangement with a surrogate (sometimes
simultaneously, and which may or may not involve the same egg donor) the result
is that their
children are legally unrelated as
siblings.
[81] See Everingham
above n 6. While ‘genetic’ surrogacy in which the surrogate utilises
her own egg is possible, this is
much less common than it was previously and is
generally disapproved by clinics.
[82] See Everingham
ibid.
[83] As Pamela
Laufer-Ukeles notes in the US context, ‘there is no real logical
distinction between determining motherhood based
on preconception intent and
determining motherhood based on a contract prepared to detail and certify such
intent’: Laufer-Ukeles
above n 15,
35.
[84] See eg McQuinn &
Shure [2011] FamCA 139.
[85]
Hague Conference Preliminary Report above n 14,
[33].
[86] Note also that the
cost of local surrogacy is increased as a result of the exclusion from IVF
treatment for surrogacy from Medicare
rebates.
[87] If followed,
Groth & Banks [2013] FamCA 430 would prove this correct, by
invalidating state law to the contrary: see note 73.
[88]
See eg Ellison and Anor & Karnchanit [2012] FamCA 602;
O’Connor and Kasemsarn [2010] FamCA 987; Collins and Tangtoi
[2010] FamCA 878; Dennis and Pradchaphet [2011] FamCA
123.
[89] I do not agree that
making parenting orders in such cases is ‘rewarding criminal
arrangements’: Keyes and Chisholm above
n 23, page 31 of
draft.
[90] A point also made by
Keyes, above n 27,
45-46.
[91] This can occur if a
federal court makes an order invalidating state law (as occurred in the recent
known donor case of Groth & Banks [2013] FamCA 430, see note 73), if state law expressly recognises a
federal court finding or order of parentage (see discussion below and notes 97, 98, 99, 100) or adoption law is engaged.
[92] DFAT, ‘Applying for a passport for a child born through surrogacy’ http://www.dfat.gov.au/passports/surrogacy/ (accessed 27 July 2013).
[93] See note 26.
[94]
See discussion in A Dickey, Family Law (5th ed) 2007, 39,
49-50, 287-290. The FLA s 64B(2)(i) is drafted in wide terms but still might not
encompass an explicit transfer of
parental status. The ‘welfare’
power under s 67ZC(1) is also broadly framed but to date has mostly been used to
invoke
power over ‘special medical procedures’ for children. See
discussion in Re Jamie [2013] FamCAFC
110.
[95] Prohibitions on payment
at state level and recognition of parentage at federal level can coexist in a
legal sense (although uncomfortable
politically) as the latter concerns the
rights and needs of the child which arise irrespective of the lawfulness of the
parents’
conduct.
[96]
While there is some flexibility to accord parentage in pre-reform arrangements,
in most states this does not extend to arrangements
entered into after the laws
came into effect: see eg C v B [2013] NSWSC
254.
[97] Since 2008 the FLA s4
definition of child includes the note, ‘in determining if a child is the
child of a person within the
meaning of this Act, it is to be assumed that
Part VII extends to all States and Territories’: inserted by the
Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cth) Sch 3.
[98] See
Status of Children Act 1996 (NSW) ss 12, 17; Parentage Act 2004
(ACT) ss 10(1)(a), 13(2); Status of Children Act 1978 (Qld) ss 26(1),
30(2).
[99] Status of
Children Act 1974 (Tas) s 8B; Status of Children Act 1978 (NT) s
9B.
[100] Family
Relationships Act 1975 (SA) s
7(c).
[101] Status of
Children Act 1974 (Vic) ss 8(5)(6), 10C(3), 10D(3), 10E(3), 14(2), 15(2),
16(2).
[102] As mentioned
earlier, the Family Court has only once, very recently, invalidated state
parentage provisions on the basis of inconsistency,
see note 73.
[103]
On the lack of regulation (although in the context of donation for research) see
J Gupta, ‘Exploring Appropriation of “Surplus”
Ova and Embryos
in Indian IVF Clinics’ (2011) 30 New Genetics and Society
167.
[104] Available at http://www.icmr.nic.in/art/art_clinics.htm
accessed 17 July 2013. The Medical Research Council of India
has recently started a National Registry of assisted reproduction clinics, but
has not yet
verified that they meet minimum standards: see http://www.icmr.nic.in/icmrnews/art/art.htm
(accessed 29 July 2013).
[105]
National Guidelines for Accreditation Supervision and Regulation of ART
Clinics (2005) at 3.5.4: ‘The birth certificate [issued by the
hospital] shall be in the name of the genetic parents’. See also
3.10.1.
See discussion in U Rengachary Smerdon, ‘Birth Registration and
Citizenship Rights of Surrogate Babies Born in India’
(2012) 20
Contemporary South Asia 341. The degree of acceptance of this practice is
well illustrated by Australian High Commission Instructions, which take it for
granted: http://www.india.embassy.gov.au/ndli/vm_surrogacy.html
(accessed 29 July 2013).
[106]
Balaz v Amand Municipality No 3020 (Gujarat HC
2008).
[107] Discussed in
Smerdon, above n 103.
[108]
Available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
(accessed 19 August 2013). See also Law Commission of India ‘Need for
Legislation to Regulate Assisted Reproductive Technology
Clinics as Well as
Rights and Obligations of Parties to a Surrogacy’ (2009) Report
228, http://lawcommissionofindia.nic.in/reports/report228.pdf
(accessed 29 July 2013).
[109]
The Bill was passed to the Ministry of Justice for approval: ‘Govt
Proposes to Bring Bill to Regulate Surrogacy: Azad’
The Hindu, 19
March 2013 http://www.thehindu.com/news/national/govt-proposes-to-bring-bill-to-regulate-surrogacy-azad/article4525557.ece
(accessed 9 August 2013), but more recently the Planning Commission of India
re-opened consultations: A Dhar, ‘Surrogacy Law
Will Wait for Experts to
Address Critical Issues’ The Hindu, 27 July 2013
http://www.thehindu.com/news/national/surrogacy-law-will-wait-for-experts-to-address-critical-issues/article4960608.ece
(accessed 9 August 2013).
[110]
Cl 34(10). Safeguards for the surrogate mother include a minimum age requirement
of 21 and a limit of no more than five successful
births (cl 34(5)). Note that
some other elements of the Bill (limiting eligibility to married intended
parents who can prove that
their home country will accept the child as their
citizen) have been given effect in the absence of legislation through visa
requirements
imposed in 2012: see Ministry of Home Affairs Circular, ‘Foreign
Nationals Intending to Visit India for Commissioning Surrogacy’ 9 July
2012 http://www.icmr.nic.in/icmrnews/art/art.htm
(accessed 29 July 2013).
[111]
See cl 34(12) and cl
26(12)-(14).
[112] Ellison
and Anor & Karnchanit [2012] FamCA 602, [24]. See also http://www.thailawonline.com/en/family/children/surrogacy-laws-in-thailand.html
(accessed 27 July 2013).
[113] As at April 2013, see: ‘Surrogacy Draft Laws: A Move Towards Safe Regulation’
http://www.thailand-surrogacy-law.com/author/admin/
(accessed 29 July 2013).
[114]
I have not been able to sight a copy of the Bill in
English.
[115] Snyder and Byrn
note in their overview that of the 27 US jurisdictions with statutes or case law
concerning surrogacy, only five
prohibit it. The District of Columbia is the
only jurisdiction in which entering into or arranging a commercial surrogacy
agreement
is actually a criminal offence. In four more states there are
legislative provisions rendering surrogacy contracts unenforceable
(New York,
Arizona, Michigan, Indiana). In some others, legislation prohibits payment of
surrogates (New York, Washington, Colorado)
but may still allow paid
intermediaries (Colorado) and grant legal parentage to intended parents in
surrogacy (Colorado, Washington).
A small number of states require that
surrogacy agreements are pre-authorised by the court prior to the conception
attempt taking
place (New Hampshire, Virginia, Texas, Utah). Of the remaining 24
states in which there is no statute or precedential case law (at
the time of
writing in 2005), commercial surrogacy was practised in many: S Snyder and M
Byrn, ‘The Use of Prebirth Parentage
Orders in Surrogacy
Proceedings’ (2005) 39 Family Law Quarterly 633.
[116] D Hinson and M McBrien,
‘Surrogacy Across America’ (2011) 34(2) Family Advocate 32
and see also D Hinson, ‘Surrogacy State by State: Actual Practices’
(2011) 34(2) Family Advocate
36.
[117] See Snyder and Byrn
above n 113. The provisions have also
been tested in a number of contested cases. In Johnson v Calvert 851 P2d
776 (Cal 1993) the Supreme Court of California held that the relevant pre-birth
provisions did apply to surrogacy where both intended parents
were genetic
parents and that both the surrogate and the genetic/intended mother benefited
from a valid presumption of maternity.
In determining between these competing
claims the court found that the original intent resolved the question in the
genetic/intended
mother’s favour. In cases where pre-birth orders were
sought but only one intended parent was the genetic parent, an order
could be
made in favour of the genetic parent, and then a post-birth step-parent adoption
process undertaken by the non-genetic intended
parent.
[118] California
Assembly Bill 1217
(2012).
[119] Genetic surrogacy
continues to be governed by judge made
law.
[120] Massachusetts
General Laws ch 209C §14 (1998). See eg Culliton v Beth Israel
Deaconess Medical Center 756 NE 2d 1133 (Mass 2001); Hodas v Moran
814 NE 2d 320 (Mass
2004).
[121] See Snyder and
Byrn above n 113,
647-649.
[122] Gestational
Surrogacy Act (2004)
750 ILCS 47.
[123] If
an agreement does not satisfy the Act it is possible for a declaration of
parentage to be made in favour of the intended parents;
this would require a
court order after the birth of the child: see Snyder and Byrn above n 113, 654-655.
[124] Judith Daar suggests this faith may be misplaced (in the context of the Californian reforms): J Daar, ‘California Surrogacy Bill Reacts to Lawyer Bad Acts’ Bill of Health Blog (September 2012) available at http://blogs.law.harvard.edu/billofhealth/2012/09/17/california-surrogacy-bill-reacts-to-lawyer-bad-acts/ (accessed 29 July 2013).
[125] Commercial surrogacy was
made a federal criminal offence in Canada under the Assisted Human
Reproduction Act SC 2004 C 2 which came into effect in March 2004. Although
much of the Act was struck down in 2010 as the result of a constitutional
challenge (Reference Re Assisted Human Reproduction Act (2010) SCC 61),
the criminal prohibition on paying, accepting payment, and brokering payment for
surrogacy in s 6 survived. Surrogacy agreements
are not enforceable, but the Act
provides in s 6(5) that provincial laws may allow for such
agreements.
[126] See T
Blackwell, ‘Pregnant Surrogates “Left in the Lurch” After RCMP
Raid Fertility Consultant’s Office’
The National Post, 1
March 2012 http://news.nationalpost.com/2012/03/01/pregnant-surrogates-left-in-the-lurch-after-rcmp-raid-fertility-consultants-office/
(accessed 9 August 2013) and ‘Canada’s Murky Legal World of
Surrogate-Consultants and Human-Egg Buyers’ The National Post, 9
March 2012 http://news.nationalpost.com/2012/03/09/canadas-murky-legal-world-of-surrogate-consultants-and-human-egg-buyers/
(accessed 9 August 2013).
[127]
Busby above n 47.
[128]
Ibid.
[129] Detailed in Busby,
ibid. Ontario, Saskatchewan and New Brunswick have established parentage in the
absence of legislation, while
Alberta, Newfoundland and Nova Scotia reformed
their parentage laws to provide for a streamlined court
process.
[130] Rypkema v
British Columbia, 2003 BCSC ; BAN v JH, 2008 BCSC
808.
[131] Section 29 requires
that the surrogacy agreement was made prior to conception, is in writing
((2)(a)) and provides that the surrogate
will not be a parent of the child, the
surrogate will surrender the child to the intended parents and the intended
parents will be
the child’s parents ((2)(b)). If these requirements are
met at birth, the child is the child of the intended parents provided
that: no
party to the agreement withdraws ((3)(a)); the surrogate provides written
consent to surrender the child after birth ((3)(b)(i));
and the intended parents
take the child into their care
((3)(b)(ii)).
[132] Discussed
in Busby above n 47. Family Law Act
2011 SBC.
[133] See eg
In re Baby, WL 245039 (Tenn CA,
2013).
[134] Pre-birth transfer
of parentage also undermines the right of the surrogate to manage the pregnancy
and birth, rights which surrogacy
contracts also purport to assign to the
intended parents: see Mason & Mason [2013] FamCA
424.
[135] Note that Keyes
suggests exploration of the option of allowing parents to elect the choice of
jurisdiction to govern their agreement,
including parentage, but even so adds
that this would be subject to minimum standards and safeguards: above note 27,
48-49.
[136] Human
Fertilisation and Embryology (Parental Orders) Regulations 2010 (UK) SI
2010/985; see also ‘Explanatory Memorandum’, Human Fertilisation
and Embryology (Parental Orders) Regulations 2010 (UK) SI 2010/985, 4
[8.7].
[137] While unusual,
there may be circumstances such as a donor arrangement where there is an
established family relationship which distinguishes
a non-genetic surrogacy from
international adoption. I am aware of two families where this arose in very
different circumstances.
In one, a married couple used both donor eggs and donor
sperm in an IVF process because they were both infertile. The woman gave
birth
to a child but subsequently had a hysterectomy and the couple wished to use the
remaining stored embryos. In that case any
child born through surrogacy,
although genetically unrelated to the woman or her husband, would be a sibling
to their existing child.
In another case in which both members of a heterosexual
couple were infertile and the woman was unable to carry a pregnancy, they
wished
to proceed with surrogacy utilising his brother as a sperm donor and her sister
as an egg donor. While neither partner would
therefore be a genetic parent to
the child, they would in fact be closely related.
[138]See detailed critique in
Keyes and Chisholm of this aspect of the decision, above n 23.
[139] See eg a disturbing case in which abusive parents purchased a baby in Russia and misrepresented it as surrogacy. Entry into the US, a Californian adoption order and Australian citizenship by descent all appear to have been granted without a DNA test to establish paternity: ‘US-Australian Citizen Sentenced to 40 years for Buying Boy’ Daily Mail, 2 July 2013 http://www.dailymail.co.uk/news/article-2355194/U-S-Australian-citizen-sentenced-40-years-buying-boy-sole-purpose-exploitation.html(accessed 7 August 2013). See also a recent UK case in which the doctor falsified the surrogate’s address: D & L [2012] EWHC 2631.
[140] See eg recent reports of
embryo mix ups in India: J Medew, ‘Surrogacy's Painful Path to
Parenthood’ The Age, 23 March 2013 http://www.theage.com.au/national/surrogacys-painful-path-to-parenthood-20130322-2glhn.html
(accessed 7 August 2013); A Banerjee, ‘Dubious Clinics Thriving in
Hyderabad’ Times of India, 16 July 2013 http://articles.timesofindia.indiatimes.com/2013-07-16/hyderabad/40612016_1_art-clinics-assisted-reproductive-technology-surrogacy
(accessed 7 August 2013).
[141] See eg A Whittaker,
‘Cross-Border Reproductive Care from Wealthy to Low Resource Countries: An
Overview of Implications for
Access, Equity and Ethics’ (2011) 19(37) Reproductive
Health Matters 107; A Whittaker and A Speier, ‘Cycling
Overseas: Care, Commodification, and Stratification in Cross-Border Reproductive
Travel’
(2010) 29(4) Medical Anthropology: Cross-Cultural Studies in
Health and Illness 363; Centre for Social Research, Surrogate Motherhood-
Ethical or Commercial (2012); N Sarojini, V Marwah and A Shenoi,
‘Globalisation of Birth Markets: A Case Study of Assisted Reproductive
Technologies
in India’ (2011) 7 Globalization and Health
27.
[142] For example the use
of gamete donors and surrogates who agree to be later identified by offspring,
either through record keeping
elsewhere or the use of Australian domestic
registers. See also P Thorn, T Wischmann and E Blyth, ‘Cross-border
Reproductive
Services − Suggestions for Ethically Based Minimum Standards
of Care in Europe’ (2012) 33 Journal of Psychosomatic Obstetrics &
Gynecology 1; and G Pennings and Z Gurtin, ‘The Legal and Ethical
Regulation of Transnational Donation’ in M Richards, G Pennings
and J
Appleby (eds), Reproductive Donation: Practice, Policy and Bioethics,
Cambridge University Press, Cambridge
(2012).
[143] It would be
useful to clarify that gamete providers are not required to participate in
proceedings, but that it is beneficial to
have a lasting record of their
identity.
[144] See eg
Laufer-Ukeles above n 15, 55-56; K
Trimmings and P Beaumont, ‘International Surrogacy Arrangements: An Urgent
Need for Legal Regulation at the International
Level’ (2011) 7 Journal
of Private International Law 627, 641-642. Trimmings and Beaumont make this
suggestion as part of a proposal for a Hague Convention on surrogacy comparable
to the
inter-country adoption convention. I expressly disagree with their
position that receiving countries responsible for setting ‘conditions
regarding the parental fitness of the intended parents ‘should be
equivalent to the requirements on adoptive parents...’ including marital
status requirements and deference to exclusions
based on sexual orientation:
642, emphasis added. On a general level I do not agree that the same level of
state intrusion is justified
in reproductive donation as compared with adoption.
On a specific level I object to the assumption that pre-existing discriminatory
practices in adoption should be maintained and extended, not least of all
because they have been a factor driving international surrogacy
for gay men and
are not supported by the social science evidence on outcomes for children: see
eg S Golombok, ‘Lesbian and
Gay Parenting: What Really Matters for the
Psychological Wellbeing of the Child?’ in M Thorpe and S Singer (eds),
Integrating Diversity, Jordan, London (2011).
[145] A point noted in the
Hague Conference preliminary Report: above n 14, [49]. Minimum standards or
accreditation could help to generate ‘demand driven’ incentives for
better practices such
as reduced incidence of multiple embryo transfer and
surrogate pre-conception counselling and
support.
[146] See Millbank
above n 26,
186.
[147] In Mason &
Mason [2013] FamCA 424 the court repeatedly noted concern that the surrogacy
agreement and the affidavit evidence of the surrogate was written in English
and
witnessed only by her thumb print. In that case Ryan J required translation of
all of the documents into Hindi and evidence that
they had been read aloud to
the surrogate in that language.
[148] Pennings and Gurtin
identify reasons for ‘less or less good’ counselling in cross border
care: communication difficulties
and commercialization: above n 141,
143.
[149] See eg Mason
& Mason [2013] FamCA 424. In many earlier cases the finding or
assumption that the male genetic parent was a legal parent also meant that there
was no consideration
of s 65G: see eg Ronalds & Victor [2011] FamCA
389.
[150] For a critical
overview, see K Horsey and S Sheldon, ‘Still Hazy After All These Years:
The Law Regulating Surrogacy’
(2012) 20 Medical Law Review
67.
[151] A factor which
reporters expressed concern over: M Crawshaw, S Purewal
and O van den Akker, ‘Completing the Surrogate Motherhood Process:
Parental Order Reporters' Attitudes
Towards Surrogacy Arrangements, Role
Ambiguity and Role Conflict’ (2012) 15 Human Fertility
94.
[152] M Crawshaw, S Purewal
and O van den Akker, ‘Working at the Margins: The Views and Experiences of
Court Social Workers on Parental
Orders Work in Surrogacy Arrangements’
(2012) British Journal of Social Work, online April 2012.
[153] See DIAC above n 8, 2, noting that a proportion of their
caseload involves surrogacy families with older children as they have lived
abroad for many
years.
[154]
See eg Laufer-Ukeles above n 15;
Millbank above n 10; John Pascoe,
‘The Rise of Surrogate Parenting: Family Law and Human Rights Implications
in Australia and Internationally’
(2011) http://www.federalcircuitcourt.gov.au/pubs/html/Speech%20-%20Pascoe%20-%20LawAsia%20-%202011.html
(accessed 29 July 2013); L Skene, ‘Why Legalising Commercial Surrogacy is
a Good Idea’ The Conversation 10 December 2012, http://theconversation.com/why-legalising-commercial-surrogacy-is-a-good-idea-11251 (accessed
29 July 2013).
[155] For
example the agency ‘New Life’, founded in Georgia, now operates
surrogacy brokerage, egg donation and IVF services
in Armenia, Estonia, Ukraine,
India, Thailand, Israel and Poland: see http://www.newlifegeorgia.com/
(accessed 29 July 2013). Patients, surrogates, gamete donors and gametes may
cross a number of national borders in a treatment process
undertaken with the
same agency.
[156] Above n 3.
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