FERTILITY NURSES OF AUSTRALASIA CONFERENCE

BROADBEACH 26 MAY 2018

MY DANCE CARD IS FULL – SURROGACY UPDATE

By Stephen Page

FERTILITY NURSES OF AUSTRALASIA CONFERENCE

BRISBANE, 26 MAY 2018

MY DANCE CARD IS FULL – SURROGACY UPDATE

By Stephen Page1

Why my dance card is full?

The simple fact remains that in part due to our acceptance or non-acceptance of surrogacy

and because of our legal settings both as to egg donation and surrogacy, there is a shortage of

egg donors across the country and a shortage of surrogates across the country. Before the

Victorians jump and down and say well there isn’t a shortage of egg donors in Victoria, the

simple fact of the matter is that the reports I continue to receive from clients is that if they

can’t get an egg donor through their networks, their clinic may tell them that there are no

donors available, they may be unwilling to go to one of the clinics that have egg banks and

instead they go overseas. In March 2016, I attended a clinic in Cape Town where the clinic

was seeing 3-5 Australian heterosexual couples seeking egg donation every business day.

I am sure it is no surprise to you, but Aussies have been all over the world for egg donation,

including Argentina2, US, Canada, Greece and Spain, as well as countries where surrogacy

occurs, such as the Ukraine, Russia and Georgia.

Of course, one of the issues about Australians going overseas for egg donation is that the

child may never know who the donor was. In the case of South Africa, the current legal

settings are that children cannot find out who the donor was. One can have great confidence

1 Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He was admitted as a solicitor in 1987 and

has been a Queensland Law Society Accredited Family Law Specialist since 1996. Stephen is a Fellow of the

International Academy of Family Lawyers including being a member of its Parentage/Surrogacy and LGBT

Committees. Stephen is the only Australian Fellow of the American Academy of Adoption and Assisted

Reproduction Attorneys. Stephen is one of three international representatives on the ART Committee of the

American Bar Association. He is a member of the Fertility Society of Australia. He has written and presented

around the world concerning fertility law issues, most recently in Sydney and before that, Nashville.

2 https://america.cgtn.com/2016/07/07/more-couples-heading-to-argentina-for-fertility-tourism, seen 21 May

2018.

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that clinics there will keep good records as to the identity of the donor. Currently the South

African Law Reform Commission is looking at a proposal to, in essence, copy what we have

done in Australia and has occurred in the UK amongst others - so that the child will be able to

find out the name of the donor. How long this may take and whether it is retrospective, I

don’t know, but there is a clear move to change the settings there.

The numbers of babies born to Australian citizens outside Australia via surrogacy each year

have always been consistently greater than the number of babies born through domestic

surrogacy. I am told that there is currently a domestic surrogacy boom happening, but we

shall see. Most recent figures that I have seen for the number of babies born domestically

through surrogacy is about 40 babies a year.

The most reliable figures I have seen for international surrogacy has typically been about 250

babies born overseas each year who become Australian citizens. That number is understated

because:

there will always be people who tell fibs to the Department of Immigration, typically

heterosexual couples who say they went overseas and had a child, and

visa holders, such as permanent residents, who undertake surrogacy overseas. Their

children will not be counted in the citizenship figures.

Nevertheless, in the 2016/2017 year the number of citizenships granted to children born

through international surrogacy dropped to 142. Time will tell whether that figure is an

anomaly or if it’s the beginning of a trend.

The other feature about Australia is that we are a migrant country. Australians are world

travellers. Just under 50% of our population are migrants or the children of migrants3.

Therefore, there are Australians who have migrated from overseas and wish to undertake

surrogacy in their home country.

3 As of the 2011 census, 26% of Australian residents were born overseas, 8.9% reported that both their parents

were born overseas, and a further 11% reported that one parent was born overseas; a total of 45.9% of the

population: https://www.homeaffairs.gov.au/ReportsandPublications/Documents/research/migrants-

contemporary-australia.pdf seen on 21 May 2018. As of the 2016, 28.5% of Australian residents were born

overseas: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/3412.0Main%20Features32015-

16?opendocument&tabname=Summary&prodno=3412.0&issue=2015-16&num=&view= seen on 21 May

2018.

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Example

Prakesh and Indira are migrants to Australia from India. They are Indian citizens. India does

not allow dual citizenship. Therefore if they became Australian citizens, they would have to

cease being Indian citizens. They are permanent residents of Australia. Prakesh and Indira

wish to become parents through surrogacy. They seek to undertake surrogacy in India. They

comply with relevant Australian law and successfully complete their journey. If they were an

Australian couple, they would not be able to undertake surrogacy in India (due to Indian

regulations banning surrogacy for citizens of countries other than India).

In the last two years, clients of mine have considered, attempted or completed surrogacy in

the following countries:

America

Brazil;

Canada;

United States.

Europe

Georgia;

Greece;

Russia;

UK (UK residents);

Ukraine.

Asia

Bangladesh;

Cambodia (where surrogacy has been banned since October 2016);

China (where surrogacy is banned);

India (where surrogacy is only available to Indian citizens);

Iran;

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Laos/Thailand (where by an under the counter method surrogacy is happening in

Laos, but controlled from Thailand);

Nepal (where surrogacy has been banned since August 2016);

Sri Lanka.

Africa

Ghana;

Kenya;

Nigeria;

South Africa.

Oceania

Australia;

New Zealand.

Light at the end of the tunnel

I want to emphasise that we are lucky to be practising in this area. It is an absolute honour

and privilege to help people become parents. Whilst there have been some bad surrogacy

journeys, surrogacy well-handled is an absolutely magical journey where magic dust spreads

in every direction. Luckily for me some of it happens to fall on me as a bystander.

I tell my clients that it is a certainty that they will become parents through surrogacy. Of

course there are four circumstances in which that won’t occur:

1. They die before the child is born;

2. They don’t have enough patience to persevere if things turn tough;

3. They don’t have enough money to fund the journey;

4. If they are in need of a donor, that they are not prepared to use the assistance of a donor.

On top of whatever other IVF costs they might have incurred previously, from continually

asking our client, the overall cost of surrogacy is:

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In Australia - $30,000 to $70,000 (the main variant being the cost of IVF);

Canada – A$80,000 to A$120,000 but ball park figure I would budget for A$120,000;

USA – A$145,000 to A$300,000.4

To put some meat on the bones, the kind of costs that are incurred by intended parents in

Australia for the surrogate we have seen have been in the order of usually $9,000 to $15,000.

In one case they were as high as $30,000. That was because the clients had not obtained

disability insurance. The surrogate had to cease work and our clients had to pay for her loss

of wages.

The kind of expenses that a surrogate in Canada would be paid are typically A$20,000 –

A$22,000.

A surrogate in the United States is paid a remarkably diverse fee from as low as US$20,000

to US$60,000 plus.

There is an assumption that if Australians are undertaking surrogacy in Canada, that because

surrogacy in Canada is altruistic that therefore as a matter of course they are compliant with

the law of Australia. That assumption is not right. They might be compliant with the law of

Australia, but it is quite possible that if proper checks haven’t been taken that the couple may

have breached local laws in Australia. Usually these things are easily fixed before signing of

documents.

Similarly, there is an assumption that if a couple are going to the US for surrogacy that they

must be undertaking commercial surrogacy. As I set out below, that assumption in light of a

court case in 2016 may not be accurate either. I cannot emphasise enough how important it is

for those contemplating surrogacy overseas to get expert legal advice about their surrogacy

journey before they commence.

4 The sources are from continually asking my clients, and reviewing retainer agreements for lawyers, IVF

clinics, surrogacy and egg donor agencies, as well as surrogacy arrangements, gestational carrier and egg

donor agreements.

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Overview of surrogacy in Australia

I am sure that everyone listening today or reading this paper will be aware that surrogacy in

Australia is allowed if it is altruistic. Each of the States and the ACT have laws in place to

ban commercial surrogacy.

The Northern Territory still has no laws about surrogacy. One might think therefore that

there is a free for all in the Northern Territory. In reality, residents of the Territory will go

interstate or more likely overseas. The only IVF clinic in the NT, Repromed, if it decided to

provide surrogacy services, would be limited in doing so to only altruistic surrogacy because

of the NHMRC Ethical Guidelines. The absence of laws in the NT means that parentage

cannot be transferred from the surrogate to the intended parents. Repromed therefore has

taken the decision not to provide any surrogacy services in the NT.

A reminder – surrogacy is not a medical process. IVF, or more correctly ART, is a medical

process. Surrogacy is a legal process to transfer the parentage of a child from a surrogate

(and if she has a partner or spouse from them) to the intended parent or parents.

A recap on history

Just to take you back through some recent history, about 13 years ago then ALP Senator

Stephen Conroy, from Victoria, and his wife Paula Benson were unable to access surrogacy

in Victoria. She was unable to carry a child. Instead they travelled to Sydney to undertake

surrogacy. The story was taken up by the Sydney Morning Herald 5which then prompted the

then Federal Attorney-General Philip Ruddock to poke the States to ensure that there were

adequate surrogacy laws in place. A consensus was developed through SCAG, the Standing

Committee of Attorneys General, that there would be reforms to allow altruistic surrogacy to

occur, but that commercial surrogacy would be banned.

5 https://www.smh.com.au/news/national/and-baby-makes-five--the-senator-his-wife-and-the-surrogate-

mothers/2006/11/06/1162661615860.html seen on 21 May, 2018.

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Before these changes occurred, surrogacy on an informal basis was able to occur in New

South Wales. Since 2004 the ACT allowed altruistic surrogacy to occur under its Parentage

Act.

There was then a veritable gold rush while each of the States held their own inquiry and

passed laws to enable altruistic surrogacy:

Assisted Reproductive Treatment Act 2008 (Vic);

Surrogacy Act 2008 (WA);

Surrogacy Act 2010 (Qld);

Surrogacy Act 2010 (NSW);

amendments to the Family Relationships Act 1975 (SA) in 2011;

Surrogacy Act 2012 (TAS).

Regrettably, we don’t have a uniform model of regulation in Australia.

Each of the States thinks pretty well that what they have legislated is great and wonderful and

marvellous. If only that were the case.

Whilst in broad terms each of the States and the ACT have legislated for altruistic surrogacy

and a banning of commercial surrogacy, there are great variants in the law which add cost

and complexity to the journey for any intended parents. They can make that journey either a

lawful one or a criminal one.

Example

Matthew and Mark are a couple who want to be parents. They lived in Queensland. Their

long term friend Mary, who lived in New South Wales, offered to be a traditional surrogate.

The three parties entered into a Queensland surrogacy arrangement. Although the then New

South Wales Attorney-General John Hatzistergos said that New South Wales liked the

Queensland model and would copy the Queensland Surrogacy Act, New South Wales did so

but with changes and additions!

The result? When the surrogacy arrangement was drafted, two clerks of my office had to

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read the relevant expenses provisions of the New South Wales and Queensland Acts side by

side to determine therefore what the differences were. If we didn’t identify those differences

properly, then the parties would have entered into a commercial surrogacy arrangement by

accident, and therefore have committed offences in either or both Queensland and New South

Wales – and it is likely that each of the lawyers by acting for them would also have been

committing offences in either or both places.

The conclusion? Although drafted differently, the expenses provisions of both Acts were

identical!

When the matter came before the Childrens Court at Queensland, the Judge agonised about

how he was able to make an order concerning a child born interstate. What may have been a

short appearance became a long appearance, but nevertheless orders were made. The orders

were then transmitted to the New South Wales Registrar of Births, Deaths and Marriages.

New South Wales legislation specifically allows for the recognition of interstate parentage

orders, such as the order my clients had obtained.

As it was the first order of its kind sought to be registered in New South Wales, it took –

unbelievably and ironically – nine months for the parents’ details to be altered on the birth

register so that my clients were recognised as the parents and the surrogate was no longer

recognised as a parent.

Differences in the model of regulation

There are essentially two separate models of regulation:

The agreement model;

The regulator model.

The agreement model

Everywhere in Australia if a surrogacy arrangement is entered into, it is not legally binding,

except perhaps if the surrogate doesn’t hand over the child and consent to the order, in which

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case she may have to repay money spent on her expenses, or on the other hand if the intended

parents don’t pay then they might be obliged to do so. Whilst some laws are clear about that,

such as the Surrogacy Act of Queensland, other places are not.

Under the agreement model, certain things are done before a surrogacy arrangement is

entered into, namely counselling and legal advice. Depending on the model, post birth there

may be counselling, a report or reports or none at all before going to court and seeking an

order. This model varies dramatically to the regulator model.

The regulator model

This exists in Victoria and Western Australia. In each of those States approval must be

gained by the relevant State regulator – in Victoria the Patient Review Panel, and in Western

Australian the Reproductive Technology Council – before the surrogacy arrangement can

proceed. There is built-in delay with each of those models, but particularly in Western

Australia.

These figures from Western Australia are telling. Western Australia has just under 10% of

Australia’s population at 2.4 million people of a population of 25 million. In recent years on

average one surrogacy arrangement a year has been approved by the Reproductive

Technology Council. If the WA population is reflective of the national whole, then

approximately 25 surrogacy arrangements a year in most years6 are entered into by WA

residents. Twenty-four of those are overseas. A regulatory regime that regulates 1 in 25 birth

smacks of the episode of Yes, Minister, when bureaucrat Sir Humphrey Appleby lauds the

Minister, Jim Hacker about a particular hospital for having the best statistics in the country-

but the hospital has no patients.

Oral agreements

As I once heard a Family Court Judge say:

“An oral agreement is worth the paper it’s written on.” 6 On the basis that 250 children are born to Australian citizens overseas through surrogacy.

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Nevertheless, both the ACT and Victoria allow oral agreements. It seems extraordinary that

one must need regulatory approval in Victoria for a surrogacy arrangement, but the

arrangement need not be put in writing.

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So what is commercial surrogacy?

We know that commercial surrogacy is something that is not altruistic surrogacy. One might

think that there is a common definition of what is commercial surrogacy and what is altruistic

surrogacy. As Oscar Wilde said “to assume is to make an ass out of you and me”. To make

that assumption is to make a fundamental mistake. The devil is in the detail. There are

widely differing definitions of what is commercial and what is not.

Going overseas comparison

Those going overseas for egg donation or surrogacy may be committing offences back

home7.

Committing offences by going overseas?

Jurisdiction Human tissue Payment of

donor’s expenses

above reasonable

Surrogacy

Commonwealth No No No

Qld Yes Yes Yes-commercial

NSW Yes Yes Yes-commercial

ACT Yes Yes Yes-commercial

Victoria No No No

Tasmania No No No

South Australia Yes Yes Yes- if contract,

even if altruistic

WA Yes Yes Yes-commercial

NT Yes No No

7 Every case is different. The laws in this area can be finely nuanced. Expert legal advice should be obtained by

intended parents looking at going overseas for ART or surrogacy- before they sign anything or make any

payment.

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Queensland

Surrogacy Act 2010 (Qld)

Surrogacy is regulated under the Surrogacy Act 2010 (Qld).

The offences are:

To advertise: section 55;

To enter into or to offer to enter into a commercial surrogacy arrangement: section 56;

To give or receive consideration, i.e. make or receive payment under a commercial

surrogacy arrangement: section 57;

To provide technical professional medical services to a surrogate of a commercial

surrogacy arrangement before she becomes pregnant: section 58.

Going overseas

The offences are committed either for acts done in Queensland or acts done outside

Queensland if the person was ordinarily resident in Queensland: section 54. Queensland has

a long arm provision: section 12 of the Criminal Code 1899 (Qld). What is a commercial

surrogacy arrangement is defined in section 10 but the essence is that the surrogacy

arrangement involves payments that is more than the reimbursement of the birth mother’s

surrogacy costs. They in turn are defined under section 11:

“(1) A

"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated

with any of the following matters —

(a) becoming or trying to become pregnant;

(b) a pregnancy or a birth;

(c) the birth mother and the birth mother’s spouse (if any) being a party to a

surrogacy arrangement or proceedings in relation to a parentage order.

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

costs —

(a) a reasonable medical cost for the birth mother associated with any of the

matters mentioned in subsection (1);

Example: a cost incurred before conception if the birth mother consults a medical

practitioner to find out if she is capable of carrying a pregnancy before undergoing a

fertilisation procedure

(b) a reasonable cost, including a reasonable medical cost, for a child born as a

result of the surrogacy arrangement;

(c) a premium payable for health, disability or life insurance that would not have

been obtained by the birth mother if the surrogacy arrangement had not been

entered

The key to section 11 is that the cost must be reasonable. It is very hard to define what is

reasonable because there have been no prosecutions to date. The great shopping list of

expenses under 11(2) is just that, a list of examples. To work out whether something is a cost

that is within section 11, it is necessary to go to section 11(1).

Example

Annabelle is the proposed surrogate for James and Charlotte. Annabelle lived in Queensland

with her husband David. James and Charlotte, the intended parents, lived in New South

Wales. Annabelle ran her own business, being a dog walker. She did so wearing inline

skates.

During the course of the surrogacy, she wanted, as she had had with her previous

pregnancies, both acupuncture and massages.

I acted for Annabelle. The solicitor for James and Charlotte initially was opposed to

massages and acupuncture because these would render the surrogacy arrangement a

commercial surrogacy arrangement. They were not listed in section 11(2) and the equivalent

provision in the New South Wales Act (remembering that the NSW and Qld Acts are very

similar on this issue). I said that they were reasonable costs often incurred by pregnant

women, did not render the surrogacy arrangement to be commercial and should occur. The

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solicitor relented.

Annabelle wanted to engage a locum for her business during the course of the pregnancy. The

solicitor for the intended parents was opposed to this because it wasn’t within section 11(2)

and the equivalent provision of New South Wales, and taking time off under section 11(2)(f)

entailed:

“The value of the birth mother’s actual lost earnings because of leave taken –

(i) for a period of not more than 2 years during which a birth happened or was

expected to happen; or

(ii) for any other period during the pregnancy when the birth mother was unable

to work on medical grounds.”

Aside from dealing with (ii) I noted that my client was self-employed and therefore was

outside the ordinary scope of (f). In any event, I was not going to have my client, pregnant

with someone else’s child, being hauled by a bunch of dogs up and down hills whilst on roller

skates. She was not profiting by employing a locum, but preserving her business.

The other solicitor relented.

The surrogacy proceeded and ultimately orders were made in the Supreme Court of New

South Wales without drama.

Example 2

One Saturday morning:

The sun was shining. The flowers were blooming. Birds were chirping. Bees were going

about their business. Stewart was digging in the garden and his wife Rosalie was happily

singing in the house when into this paradise, came three plain clothes detectives walking

down the driveway. Australia’s anti-money laundering agency, Austrac, had detected a

payment by the couple to an overseas IVF clinic. The agency referred the matter to the

Australian Federal Police, who quickly found out when the couple had left Australia and

returned to Australia. The Australian Federal Police referred the matter to local police on

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suspicion that the couple had engaged in child trafficking or international commercial

surrogacy.

The police then interviewed the couple. Subsequently, I spoke with the police. Given the

facts of the case, the police decided to take no further action.

The myth that police will never prosecute for surrogacy offences is clearly just that – a myth.

The police officer told me that there is great agitation in Canberra about Australians engaging

in commercial surrogacy overseas. Whilst the actions by Austrac were unprecedented, if they

have happened once, they will happen again.

Re Halvard [2016] FamCA 10518

The common view has been that those who go to the United States must, by definition, be

engaged in commercial surrogacy. Re Halvard demonstrates that that assumption may be

false.

The intended parents lived in the United States. The husband was an Australian citizen and

the wife a US citizen. They underwent surrogacy in the US. Prior to the birth of the child an

order was made, the effect of which was that they were the parents under the law in the US

where the child was born.

The child was born and obtained Australian citizenship. The couple sought to register the US

surrogacy order in Australia, the effect of which would be that the couple would for all

purposes be the parents of the child under Australian law. They were successful. This is the

first time that any surrogacy order was able to be registered.

A previous attempt had been made in 2013 in Carlton and Bissett9, which involved a South

African man who obtained a pre-birth order naming him as the father under the Childrens Act

8 http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2016/1051.html seen on 21 May 2018.

9 www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/143.html seen on 21 May 2018.

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prior to his twins being born. He had migrated to Australia and then sought that he be

recognised as the parent. He ultimately succeeded under a comity argument but his first

argument was that the South African order be registered in Australia because it was an

overseas child order, a phrase that appears in the Family Law Act. An order can only be

registered if it is an overseas child order. The court in that case held that the South African

court order was an overseas child order, but it was unable to be registered because South

Africa was not a prescribed overseas jurisdiction, as South Africa was not named in the list

contained in the Family Law Regulations. It is still not named. 48 of the 51 US jurisdictions

are named.

Justice Forrest was of the view that the pre-birth order was of its nature similar to a post birth

order made in New South Wales or Queensland.

In the exercise of discretion as to whether or not the court should register the US order, the

solicitor for the parents said that the surrogacy arrangement was commercial within the

meaning of both the Queensland and New South Wales Surrogacy Acts, but nevertheless it

should be registered, in the best interests of the child. His Honour was of the view that the

solicitor was mistaken and that it was not commercial surrogacy, but altruistic and that

although generous, the costs for the surrogate were still reasonable within the meaning of the

NSW and Queensland Acts. As it was altruistic, it was therefore able to be registered. If it

had been commercial it may not have been able to be registered. The court ordered that the

names of the solicitors who acted for the applicants not be published.

New South Wales

Surrogacy Act 2010 (NSW)

There are two offences in New South Wales:

1. To advertise (except there it is an altruistic surrogacy arrangement and no money has

been spent on the advertisement);

2. Entering into or offering to enter into a commercial surrogacy arrangement.

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There is no specific offence for assisting someone, but if you are aware that someone is

entering into a proposed commercial surrogacy arrangement and you assist them, you may be

a principal offender by virtue of general provisions of criminal law. If in doubt, get legal

advice first!

New South Wales has two alternate tests about extending jurisdiction:

1. Section 10C of the Crimes Act 1900 (NSW);

2. Section 11(2) Surrogacy Act.

The offence is committed by a person ordinarily resident or domiciled in New South Wales,

wherever the surrogacy arrangement might be: section 11(2) Surrogacy Act.

Most States have a long arm law. This is the law that extends the jurisdiction of the State

outside the State for criminal offences, i.e. like the long arm of the law. In New South Wales

it is section 10C of the Crimes Act which provides that if the circumstances for an offence

arise and part of the act occurs in New South Wales that constitutes the offence or the effect

of the act occurs in New South Wales that constitutes the offence, then the offence occurs in

New South Wales.

There is limitation as to how section 10C will apply to surrogacy. In the Family Court in

2011 a judge delivered on the one day four judgments relating to two couples from

Queensland and two couples from New South Wales who underwent surrogacy in Thailand.

Justice Watts referred the two Queensland couples to Queensland authorities for

consideration of prosecution10. His Honour did not refer the New South Wales couples. His

Honour found that they fell within the Assisted Reproductive Technology Act, as they had

signed their surrogacy agreements before the Surrogacy Act commenced. His Honour

10 Dudley and Chedi [2011] FamCA 502 http://www.austlii.edu.au/cgi-

bin/sinodisp/au/cases/cth/FamCA/2011/502.html; Findlay and Punyawong [2011] FamCA 503

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/503.html both seen 21 May 2018.

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considered section 10C of the Crimes Act but considered that it was unlikely that they had

committed any offence11.

Intended parents from New South Wales can, in light of Re Halvard, undertake surrogacy

overseas lawfully if they engage in great care – and get expert legal advice first!

What is a commercial surrogacy in New South Wales is very similar to that in Queensland,

namely a surrogacy arrangement where the payment is greater than the birth mother’s

surrogacy costs. These are defined in section 7 of the Surrogacy Act 2010:

“(1) For the purposes of this Act, a

"birth mother's surrogacy costs" are the birth mother's reasonable costs associated

with any of the following matters:

(a) becoming or trying to become pregnant,

(b) a pregnancy or a birth,

(c) entering into and giving effect to a surrogacy arrangement.

(2) The reasonable costs associated with becoming or trying to become pregnant include

any reasonable medical, travel or accommodation costs associated with becoming or

trying to become pregnant.

(3) The reasonable costs associated with a pregnancy or birth include the following:

(a) any reasonable medical costs associated with the pregnancy or birth (both

pre-natal and post-natal),

(b) any reasonable travel or accommodation costs associated with the pregnancy

or birth,

(c) any premium paid for health, disability or life insurance that would not have

been obtained by the birth mother, had the surrogacy arrangement not been

entered into,

(d) any reasonable costs, including reasonable medical costs, incurred in respect

of a child (being the child of the surrogacy arrangement),

11 Hubert and Juntasa [2011] FamCA 504 http://www.austlii.edu.au/cgi-

bin/sinodisp/au/cases/cth/FamCA/2011/502.html ; Johnson and Chompunut [2011] FamCA 505

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/505.html both seen 21 May 2018.

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(e) the cost of reimbursing the birth mother for a loss of earnings as a result of

unpaid leave taken by her, but only for the following periods:

(i) a period of not more than 2 months during which the birth happened

or was expected to happen,

(ii) any other period during the pregnancy when the birth mother was

unable to work on medical grounds related to pregnancy or birth.

(4) The reasonable costs associated with entering into and giving effect to a surrogacy

arrangement include the following:

(a) the reasonable costs associated with the birth mother and the birth mother's

partner (if any) receiving counselling in relation to the surrogacy

arrangement (whether before or after entry into the arrangement),

(b) the reasonable costs associated with the birth mother and the birth mother's

partner (if any) receiving legal advice in relation to the surrogacy

arrangement or a parentage order relating to the surrogacy arrangement,

(c) the reasonable costs associated with the birth mother and the birth mother's

partner (if any) being a party to proceedings in relation to such a parentage

order, including reasonable travel and accommodation costs.

(5) A cost is reasonable only if:

(a) the cost is actually incurred, and

(b) the amount of the cost can be verified by receipts or other documentation.

(6) In this section:

"medical costs" does not include any costs that are recoverable under Medicare or

any health insurance or other scheme.”

The comments in Re Halvard apply to this legislation as they do to the Queensland Act.

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Australian Capital Territory

Parentage Act 2004 (ACT)

The offences are entering into a commercial substitute parenting agreement: section 41;

Procuring a commercial substitute parenting agreement: section 42.

The offence is committed if it occurs overseas when the party is ordinarily resident in the

ACT: section 45.

The ACT has a long arm provision similar to section 10C of the Crimes Act 1900 (NSW):

section 64 of the Criminal Code 2002 (ACT).

The ACT does not adequately define what are the expenses that can be paid to the surrogate?

In broad terms the definition is similar to that in Queensland or New South Wales, although

arguably narrower, as it refers to expenses connected with the pregnancy or the birth or care

of a child born as a result of that pregnancy: section 40 Parentage Act 2004.

The ACT doesn’t have as many barriers as other places because of its small size. It is

possible for someone who lives in the ACT to move to New South Wales during the

surrogacy journey so that the flexibility under the New South Wales legislation can apply –

provided that the surrogacy arrangement at commencement is a New South Wales surrogacy

arrangement.

Victoria

Assisted Reproductive Treatment Act 2008 (Vic)

Assisted Reproductive Treatment Regulations 2009 (Vic)

21

One offence in Victoria is that a surrogate mother must not receive any material benefit or

advantage as a result of a surrogacy arrangement: section 44(1) Assisted Reproductive

Treatment Act 2008.

The offence is not committed if only prescribed costs are paid: section 44(2).

Under regulation 10 the following costs are prescribed:

(a) Any reasonable medical expenses associated with the pregnancy or birth that are not

recoverable under Medicare, health insurance or another scheme;

(b) Any legal advice obtained for the purposes of the legal consequences of entering into

the arrangement12;

(c) Travel costs relating to the pregnancy or birth.

Being a surrogate in Victoria necessarily means that the surrogate will be out of pocket. One

can instantly see the types of expenses that are not included. The example of Annabelle

above, to pay acupuncture, massage or for a locum, would all not be prescribed expenses-

which means that all the parties would be committing a criminal offence because they are

deemed to have engaged in commercial surrogacy.

It is not an offence for Victorian residents to undertake surrogacy overseas.

Checklist of comparison between NSW and Victoria

To illustrate the problem, I have set out below a comparison as to what expenses can be paid

between section 7 of the Surrogacy Act 2010 (NSW) and section 44 of the ART Act 2008

(Vic) and regulation 10 of the ART Regulations 2009 (Vic).

Expense NSW VIC

Any reasonable medical costs associated

with the pregnancy or birth

Allowed: altruistic Allowed: if they are

not recoverable under

12 By reference back to s.43(c).

22

Expense NSW VIC

Medicare, health

insurance or another

scheme, otherwise

criminal.

Travel costs Allowable if reasonable. Allowable.

Accommodation costs Allowable Not allowable –

criminal.

Health insurance for the surrogate –

obtained for the surrogacy arrangement

Allowable. Criminal.

Disability insurance obtained for the

surrogate because the surrogacy

arrangement has been entered into

Allowable. Criminal.

Life insurance obtained for the surrogate

– because the surrogacy arrangement has

been entered into.

Allowable. Criminal.

Reasonable costs including reasonable

medical costs incurred in respect of a

child (being the child of the surrogacy

arrangement)

Allowable. Criminal.

Reimbursing the surrogate for loss of

earnings due to the pregnancy – either 2

months or a greater period because she is

unable to work on medical grounds

related to medical or birth

Allowable. Criminal.

Implications counselling for a surrogate

provided on behalf of an IVF clinic about

social and psychological implications of

entering into the arrangement

Allowable. Allowable.

Counselling about relinquishment and

the relationship between the surrogate

mother and the child once it is born.

Allowable. Allowable.

Legal advice before entry into the

surrogacy arrangement.

Allowable. Allowable.

Legal advice and representation after

entering into the surrogacy arrangement.

Allowable. Criminal.

Travel and accommodation for going to

Court.

Allowable Criminal.

23

Tasmania

Surrogacy Act 2012 (Tas)

Section 40 makes it an offence to enter into or to offer to enter into a commercial surrogacy

arrangement, with a fine not exceeding 100 penalty units.

Like the Queensland or NSW Acts, section 8 defines what is a commercial surrogacy

arrangement:

“A surrogacy arrangement is a commercial surrogacy arrangement if it provides for

a person to receive a payment, reward or other material benefit or advantage (other

than the reimbursement of the birth mother's surrogacy costs) for the person or

another person –

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

(b) giving up a child born as a result of the surrogacy arrangement to be raised by the

intended parent or intended parents; or

(c) consenting to the making of a parentage order in relation to a child born as a

result of the surrogacy arrangement.”

What is a birth mother’s surrogacy costs in section 9 is in essence the same as section 11 of

the Queensland Act:

“ (1) In this section –

legal cost includes fees for obtaining legal advice and legal representation, court fees,

and registry fees associated with registration of a birth and transfer of parentage;

medical cost means a medical cost to the extent that it is not recoverable under

Medicare or any health insurance or other scheme.

(2) A birth mother's surrogacy costs are the birth mother's reasonable costs

associated with any of the following matters in relation to a surrogacy arrangement

to which the birth mother is a party:

(a) becoming, or trying to become, pregnant;

(b) a pregnancy or birth;

(c) the birth mother and the birth mother's spouse, if any, being a party to the

surrogacy arrangement or proceedings in relation to the obtaining of a parentage

order or a parentage order that has been obtained.

(3) Without limiting subsection (2) , the following amounts are a birth mother's

surrogacy costs in relation to a surrogacy arrangement to which the birth mother is a

party:

(a) a reasonable medical cost, for the birth mother, associated with any of the matters

mentioned in subsection (2) ;

24

(b) a reasonable cost, including a reasonable medical cost, for a child born as a

result of the surrogacy arrangement;

(c) a premium payable for health, disability or life insurance that would not have

been obtained by the birth mother if the surrogacy arrangement had not been entered

into;

(d) a reasonable cost of counselling associated with any of the matters mentioned in

subsection (2) , including the cost of counselling, in relation to the surrogacy

arrangement, obtained by the birth mother or the birth mother's spouse, if any;

(e) a reasonable legal cost for the birth mother and the birth mother's spouse, if any,

relating to the surrogacy arrangement, the obtaining of a parentage order or a

parentage order that has been obtained;

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

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

expected to happen; or

(ii) for any other period during or after the pregnancy when the birth mother was

unable to work on medical grounds associated with the pregnancy or the end of a

pregnancy;

(g) travel and accommodation costs associated with the surrogacy arrangement;

(h) another reasonable cost associated with the surrogacy arrangement, the obtaining

of a parentage order or a parentage order that has been obtained.”

Commercial brokerage or advertising of surrogacy arrangements is prohibited: s.41. When

the Surrogacy Bill was passing through Parliament, there was an Upper House inquiry. I gave

evidence. I was critical of the drafting of section 41(as it then stood) as I said it could be

argued that section 41 prohibited Tasmanians from undertaking surrogacy overseas. The Bill

was amended in light of my evidence to ensure that it is clear- Tasmanians do not commit an

offence by entering into an overseas commercial surrogacy arrangement.

South Australia

Family Relationships Act 1975 (SA)

Offences

1. Except as authorised by or under the Family Relationships Act 1975 or the State

Framework for Altruistic Surrogacy, a person who for valuable consideration, negotiates,

arranges or obtains the benefit of a surrogacy contract on behalf of another: section

10H(1).

25

2. A person who, for valuable consideration, induces another to enter into a surrogacy

contract.

The definition of surrogacy contract is in section 10F, meaning:

“A contract under which –

(a) A person agrees –

(i) to become pregnant or seek to become pregnant; and

(ii) to surrender custody of, or rights in relation to, a child born as a result of the

pregnancy; or

(b) A person who is already pregnant agrees to surrender custody of, or rights in

relation to, a child born as a result of the pregnancy, but does not include a

contract that forms part of, or relates to, a recognised surrogacy agreement or

proposed recognised surrogacy agreement.”

A recognised surrogacy agreement is defined in section 10F as meaning:

“A recognised surrogacy agreement under section 10HA(2) and includes, for the

purposes of Division 3 –

(a) A surrogacy agreement (however described) entered into in accordance with a

prescribed corresponding law of the Commonwealth, or of another State or

Territory; and

(b) A prescribed international surrogacy agreement.”

Prescribed international surrogacy agreement is defined in section 10F as meaning:

“(a) A surrogacy agreement (however described) under a law of another country that is

declared by the regulations to be a prescribed international surrogacy agreement; or

(b) A surrogacy agreement (however described) relating to surrogacy arrangement

between commissioning parents resident in this State and a person resident in another

country and approved by the Minister for the purposes of this paragraph.”

26

A recognised surrogacy agreement as set out in section 10HA as to the requirements in South

Australia which include the agreements states that no valuable consideration is payable

under, or in respect of, the agreement, other than for expenses connected with or consisting of

–

“(A) A pregnancy (including any attempt to become pregnant) that is the subject of the

agreement; or

(B) The birth or care of a child born as a result of that pregnancy; or

(C) Counselling or medical services provided in connection with the agreement (including

after the birth of a child); or

(D) Legal services provided in connection with the agreement (including after the birth of

a child); or

(DA) Any reasonable out of pocket expenses incurred by the surrogate mother in respect to

the agreement; or

(E) Any other matter prescribed by the regulations for the purposes of this provision.

There is no agreement that has been prescribed for section 10F and nor is there any

prescription for the purposes of section 10HA(2)(ix)(e).

There is a requirement that the agreement states the commissioning parents will, in

accordance with any requirements in the State Framework for altruistic surrogacy, take

reasonable steps to ensure that the surrogate mother and her husband or domestic partner (if

any) are offered counselling (at no cost to the surrogate mother or her husband or domestic

partner) after the birth of a child to which the agreement relates (including, to avoid doubt, a

still-birth).”

27

In considering whether to make an order, the Court has to take into account whether valuable

consideration (other than as is authorised under section 10HA(2)(b)(ix)) has been given or

received by either of the commissioning parents, or either of the child’s birth parents, for or

in consideration of –

“(i) the making of the order; or

(ii) the handing over of the child to the commissioning parent; or

(iii) the making of any arrangements with a view to the making of the order.”

When amendments were proposed to the Family Relationships Act in 2014 I was quite critical

of the then Act. It was similar to that in Victoria, for example, where it was unclear as to

whether life insurance for the surrogate could be met. The amendment introduced in 2015

allows: “Any reasonable out of pocket expenses incurred by the surrogate mother in respect

of the agreement” which is such a wide ranging term that could well allow expenses as

envisaged in Queensland, New South Wales or Tasmania, provided that they are reasonable.

The previous problems with what a surrogate could be paid have been avoided.

South Australia has a long arm provision, section 5G of the Criminal Law Consolidation Act

1935 (SA).

Mr John Dawkins MLC, who has been the driving force for change to surrogacy legislation in

South Australia over many years, said that when the current amendments were debated in

2014/2015, that the advice he had received was that in theory an offence would be committed

by entering into a surrogacy arrangement overseas but in reality a prosecution was almost

impossible.

His solution was in effect to require anyone who was going overseas, whether for altruistic or

commercial surrogacy, to obtain the permission of the relevant minister, who in turn would

be guided by the Family Relationship Regulations and by the State Framework for Altruistic

Surrogacy. Those laws took effect in July 2015. Now, almost 3 years later, those relevant

regulations do not exist and neither does the State Framework in finalised form. It has been

put to me that South Australian ministers do not want to own an overseas surrogacy problem

and nor does the Minister concerned want to spend many hours researching whether or not

28

that particular surrogacy overseas is appropriate for that particular intended parent or parents.

That arrangement has gone nowhere. In my view, with care, and especially with extremely

careful legal advice, it is lawful for someone in South Australia to engage in surrogacy,

including commercial surrogacy, overseas – but there needs to be the most careful legal

advice on point.

A bill came before the last Parliament to get rid of the requirements for the State Framework

for Altruistic Surrogacy and overseas approval, and to rejig the Family Relationships Act to

be along the lines of the Surrogacy Act 2010 (NSW). That Bill died with the last Parliament.

There has been a change of Government in South Australia so I don’t know whether the Bill

will be revived or indeed if a new bill of a different kind is put before Parliament.

Western Australia

Surrogacy Act 2008

The offences

Making a surrogacy arrangement that is for reward: section 8;

Reward for introducing parties for a surrogacy arrangement: section 9;

Advertising: section 10;

Providing a service connected with a surrogacy arrangement that is for reward: section

11.

It is therefore an offence in Western Australia for a lawyer in Western Australia to give

advice about a surrogacy arrangement that is not strictly in compliance with WA law.

Anyone contemplating undertaking surrogacy overseas should not go to a WA lawyer for

advice because the WA lawyer may be committing an offence in providing advice.

A surrogacy arrangement that is for reward is defined in section 6, being an arrangement

which:

29

“(1) Provides for any person to receive any payment or valuable consideration other than

for reasonable expenses associated with –

(a) The pregnancy or the birth; or

(b) Any assessment or expert advice in connection with the arrangement.

(2) Reasonable expenses associated with achieving, or attempting to achieve, the

pregnancy and reasonable expenses associated with the pregnancy.

(3) An expense is a reasonable expense for the purposes of subsection (1)(a) to the extent

only that it is –

(a) A reasonable medical expense that is not recoverable under any health insurance

or other scheme; or

(b) The value of earnings foregone because of leave taken –

(i) For a period of not more than 2 months during which the birth occurs or is

expected to occur; or

(ii) At any other time for medical reasons arising during the pregnancy; or

(c) A reasonable expense of psychological counselling; or

(d) A premium payable for health, disability or life insurance that –

(i) Would not have been taken out of the surrogacy arrangement had it not been

entered into; and

(ii) Provides cover for a period during which an expense referred to in another

paragraph of this subsection is incurred or might be, or have been expected to

be, incurred.”

30

If we go back to the example of Annabelle, to pay for a massage or acupuncture or a locum

for Annabelle in Western Australia would be a criminal offence. To pay for a reasonable

medical cost for a child born as a result of the surrogacy arrangement is a criminal offence,

unless it can be shown to be an expense associated with the birth. To pay for legal

representation of the surrogate post birth is a criminal offence.

WA is our largest State. One might have thought in Western Australia that there would be

allowance for travel and accommodation. To pay for travel and accommodation of a

surrogate in Western Australia is a criminal offence.

The common view that is held is that to go overseas for surrogacy in Western Australia is

lawful. The judgment in the Baby Gammy case of Farnell and Chambua [2016] FCWA 17,

makes plain that the long arm provision of Western Australian law - section 12 of the

Criminal Code - extends to surrogacy, so that someone who is going overseas and enters into

a surrogacy arrangement that is for reward may be committing a criminal offence.

Similarly, someone who is in Western Australia and is looking to undertake surrogacy

interstate (either as an intended parent or surrogate) may by the same provisions be

committing a criminal offence.

Discrimination in ART

Following criticism at the United Nations, on 1 August 2016, exemptions that were allowed

under the Federal Sex Discrimination Act 1992 for State laws which discriminated against

LGBTI people in the provision of services, employment, housing etc were removed (with the

exception of Western Australia where the exemption was removed on 1 August 2017).

Nevertheless, there appear to be pockets of discrimination that apply in ART:

The Australian Government is very generous in funding ART through our universal

health scheme, Medicare. It is not unknown that women have had up to 36 IVF cycles

partly funded by the taxpayer. For the taxpayer to provide a government rebate, the

couple must be considered to be infertile. The classic definition of infertility is that of a

31

heterosexual couple who are unable to conceive after trying consistently through

unprotected sexual intercourse over 1 year. A rebate will only be paid if the doctor is of

the view that the person is infertile. Some doctors still follow that classical definition,

which means that single people and LGBTI couples may not be eligible for the rebate,

costing them thousands of dollars. Other doctors consider those couples to be infertile.

Intended parents won’t know the outcome until they talk to the doctor. Recently I saw

online a discussion amongst intended parents about which clinics/doctors did provide the

rebates for gay intended fathers, and those that did not.

There is an exemption for surrogacy. The rebate won’t be provided for surrogacy. There

are differing opinions about the regulations13. Some are of the view that the effect of the

regulations is that the rebate won’t be paid once a surrogacy arrangement has been

signed. Others are of the view that if the doctor or clinic suspects that there will be

surrogacy (for example a gay couple walks into the room…) then the rebate is not

payable. The cost for a couple can be large- making the difference per cycle from

A$4,000-$5,000 out of pocket with the rebate, to up to A$17,000 out of pocket without

the rebate.

Table showing discrimination in ART in Australia

Jurisdiction Discrimination?14

Commonwealth No: s.22 Sex Discrimination Act 1992 (Cth)

Qld Yes. S.45A Anti-Discrimination Act 1991 (Qld) allows

discrimination on the basis of sexuality and relationship status.

However, this section appears not to be in force, in light of s.22

of the Sex Discrimination Act.

NSW No

ACT Yes. The surrogate and her partner must be a couple: s.26(1)(b),

13 Item 2.37.7 of the Health Insurance (General Medical Services Table) Regulations 2017 (Cth): “Items 13200 to

13221 do not apply to a service provided in relation to a patient’s pregnancy, or intended pregnancy, that is, at

the time of the service, the subject of an agreement, or arrangement, under which the patient makes provision

for transfer to another person of the guardianship of, or custodial rights to, a child born as a result of the

pregnancy.”

32

(3)(d) and (e) Parentage Act 2004 (ACT) . There must be two

birth parents: s.26(2)(b), (3)(b),(c),(d) and (e) Parentage Act

2004 (ACT).

Victoria No

Tasmania Each party to the surrogacy arrangement at the time it was

entered into was resident in Tasmania: s.16(2)(g) Surrogacy Act

2012 (Tas), though this might be able to be dispensed with:

s.16(3).

South Australia Surrogacy is not available to single intended parents: s.9(1)(iva)

Assisted Reproductive Treatment Act 1988 (SA),

s.10HA(2a)(a)(ii), (c), (d), (g)(ii), (h)(ii), (j),(5)(c)(i), (6)(c);

s.10HB(2)(b),(4), (8)(b), (9)(a),(b),(c), (10) Family Relationships

Act 1975 (SA). Registered persons, i.e., RTAC licensees (not

doctors) can decide not to treat on the basis of the person’s

sexual orientation, gender identity, marital status or religious

beliefs: s.9(1)(ba); 9(1a) ART Act, reg. 6 Assisted Reproductive

Treatment Regulations 2010 (SA). I am unsure if this scheme

complies with the Sex Discrimination Act.

Western Australia Surrogacy is not available to single men or gay male couples. It

is unclear if it is available to single intersex or transgender

people, or where one of the parties is intersex or transgender:

s.19 Surrogacy Act 2008 (WA); s.7(1)(b), 23(1)(iii) Human

Reproductive Technology Act 1991 (WA). This appears in breach

of s.22 of the Sex Discrimination Act. Another barrier in WA is

that anonymous sperm, egg or embryo donation is not available

in WA for surrogacy because of a requirement that the donor is a

signatory to the surrogacy arrangement: s.17(b)(iii) Surrogacy

Act 2008 (WA). WA is currently reviewing its ART and

surrogacy laws.

NT No discrimination in ART. Surrogacy not available. Doctors

must comply with SA licences.

33

HOUSE OF REPRESENTATIVES INQUIRY

In 2015/2016, a select committee of the House of Representatives was reviewing the laws on

surrogacy. It handed down its recommendations in 2016 just before the Federal election. No

action has been taken on its recommendations which included:

A national non-discriminatory scheme of surrogacy laws.

Those laws to regulate altruistic and ban commercial surrogacy.

To make it harder for those undertaking surrogacy overseas in any jurisdiction which had

requirements less stringent than Australia. I note that the only place which has

requirements as stringent as Australia is New Zealand. Therefore even Australians who

go to the US or Canada for surrogacy would find their journey considerably longer and

more expensive.

Questioning whether it might be a good idea for any child born through surrogacy to have

noted on their birth certificate the name of the donor (and the donor’s partner) and that of

the surrogate and the surrogate’s partner. This was sought by donor conceived adults –

but it would seem that inadequate consideration was given to toddlers and school aged

children when their parents provide the birth certificate for enrolment or indeed 15 year

olds who might have to provide their birth certificate on seeking employment.

Farnell and Chambua [2016] FCWA 1715

As I said above, this was the Baby Gammy case in which the Court ultimately found that the

child Pipah should continue to live in Bunbury (a town a couple of hours south of Perth) with

Mr and Mrs Farnell and not live with her brother Gammy in Thailand who is being cared for

by the surrogate, Mrs Chambua.

If you want to read a case about how not to do surrogacy, it is a good illustration.

15 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/FCWA/2016/17.html seen on 21 May 2018.

34

Bernieres and Dhopal [2017] FamCAFC 18016

Mr and Mrs Bernieres lived in Melbourne. They travelled to India for surrogacy. Mr

Bernieres was the genetic father. An egg donor was the genetic mother. The surrogacy went

well. The child was born, obtained Australian citizenship and returned home. Mr and Mrs

Bernieres then applied to the Family Court for an order that they have parental responsibility

for the child and that the child live with them. Each was easily obtained. They also sought

an order declaring them to be the parents.

The trial judge, Berman J in 2015 declined that order. He said that there was a gap in the law

of Victoria whereby the parenting presumptions about who was a parent did not apply to

overseas surrogacy. The surrogacy was, although legal, non-compliant with the law of

Victoria (which amongst other things required that IVF be undertaken in a Victorian clinic).

Therefore, he refused to declare that they were the parents.

Mr and Mrs Bernieres appealed. A unanimous three member Full Court found that they were

not the parents, in essence for the reasons that the trial judge had found.

The case has highlighted that under Australian law there are different standards about who is

a parent. The effect of Bernieres and Dhopal is to emphasise that different statutes have

different approaches about whether someone is or is not a parent. For example:

16 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/180.html seen on 21 May 2018.

35

Who’s a parent?Law Comment

Family Law Act 1975 For people who went from Victoria overseas for surrogacy to

contract based jurisdictions such as India, Cambodia, Thailand, it is

clear that they are not parents under this legislation. However, it is

not so clear if they are from another State or went to a jurisdiction

where orders are made transferring parentage (such as the US or

Canada). It is untested and uncertain.

Exceptions to

Bernieres and Dhopal

There are five potential exceptions to Bernieres and Dhopal:

1. That the intended parents lived overseas, complied with the

law overseas and were recognised overseas as the parents, in

which case they would be recognised in Australia as the

parents: Carlton & Bissett [2013] Fam CA 14317.

2. There was an adoption, as part of the surrogacy process, in

which case they will be recognised as a parent under the

Family Law Act: section 4. This may lead to an absurd

outcome in which parent 1 (the genetic parent) might not,

consistent with Bernieres and Dhopal be recognised as a

parent; but parent 2, by virtue of a second parent adoption,

will be a parent.

3. The intended parents come from South Australia and have

obtained the permission of the Health Minister under the

Family Relationships Act 1975 (SA).

4. They have obtained an order made in most parts of the United

States and had it registered under section 70G of the Family

Law Act with the Family Court of Australia.

17 A case involving a man who was a citizen of, lived in, underwent surrogacy in and obtained an order from a

court in South Africa- before he and the children migrated to Australia, so that he could be with the man he

loved, also a South African.

36

Who’s a parent?Law Comment

5. The overseas order is recognised under the 1996 Hague Child

Protection Convention, and the judge is prepared to register

despite public policy exceptions.

Inheritance If someone is not a parent for the purpose of family law, almost

certainly they won’t be a parent for the purposes of inheritance.

Therefore properly drawn wills need to be prepared to minimise

risk.

Child protection Depending on child protection statues, the intended parents may or

may not be recognised as parents.

1980 Hague Child

Abduction Convention

Absent a court order, a person who is not a parent under family law

does not have parental responsibility and therefore does not have

rights of custody under the Convention.

Child support Seemingly by way of insult, many people who would not be

considered to be parents as a result of Bernieres and Dhopal will

nevertheless be considered parents for the purposes of child

support. In other words, they can’t be recognised as parents in

their relationship with their child except if the relationship breaks

down!

Superannuation Someone may be a parent for the purposes of superannuation

(retirement savings account). The monies in these accounts can be

substantial, given Australia’s compulsory superannuation laws, so

proper planning is required.

Citizenship The practical test to determine if someone is a parent for the

purposes of citizenship is if they are seen as a parent in the wider

sense of the community (although the case dealing with this

excluded surrogacy, it has been applied to surrogacy by the

Department of Immigration, now the Department of Home

Affairs). The basis of determining if someone is a parent is defined

by genetics, OR whether someone is a parent under the Family Law

Act OR if they are seen in the wider sense of the community as

being a parent. Typically the last means that judgments obtained in

37

Who’s a parent?Law Comment

the US or Canada identifying people as parents will be sufficient to

identify them as parents for surrogacy. See my discussion about

the Australian couple who went to Russia, below.

REGISTRATION CASES

There have now been three cases where US surrogacy orders have been dealt with by the

Family Court.

Re Halvard [2016] FamCA 105118

As discussed above.

Re Grosvenor [2017] FamCA36619

The intended parents were an Australian couple living in the United States who underwent

surrogacy in North Carolina. Justice Forrest registered the judgment. I acted. His Honour

stated:

“Given that the applicants and their solicitor tell the Court that the child in this case

was brought into the world with the assistance of an arrangement regulated by a

commercial surrogacy agreement, I am clearly required to more deeply consider that

proposition [if it’s commercial surrogacy the discretion might be refused] expressed

by me only six months ago. The public policy context within which this consideration

is set includes the fact that in Queensland, New South Wales and the Australian

Capital Territory entry into commercial surrogacy arrangements abroad by persons

ordinarily resident in those jurisdictions is a criminal offence. Of course, I have

already observed that Mr and Mrs Grosvenor reside in the USA and not one of those

jurisdictions. Nevertheless, they have entered into a commercial surrogacy

18 http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2016/1051.html .

19 http://www.austlii.edu.au/au/cases/cth/FamCA/2017/366.html .

38

agreement and they seek the registration of the Court order that gives them the

parenting rights over their child in this Court.

Having considered the matter further, particularly having regard to:

the unique circumstance of this couple and the inability to biologically parent

and carry their own baby;

the well-regulated nature of the surrogacy arrangements entered into between

the applicants and the surrogate notwithstanding its commerciality;

the judicial oversight to the arrangements given by the Court in the USA,

including the procedural fairness offered thereby to the woman who carried

the baby for the applicants;

the acceptance by the Australian Government of the US jurisdiction as a

prescribed jurisdiction for the purposes of the registration of ‘overseas child

orders’ made in Courts of that jurisdiction, thereby, I am satisfied, signifying

the Australian Government’s satisfaction with the standard of the judicial

processes that would have occurred in the making of the order; and

the fact that the arrangements entered into, regardless of their nature, brought

into the world a child who is a biological child of at least one of the

applicants, the legal child of both of them, who is being loved and raised as

their child, who is an Australian citizen, like her parents, will be coming back

to live in Australia in the near future, and who has every right to expect that

the legal nature of her relationship with both of her parents is appropriately

recognised in this country of hers;

I am satisfied that the commercial nature of the surrogacy agreement alone in

this particular case should not determine the exercise of discretion against the

applicants.”

39

Sigley and Sigley [2018] FamCA 320

On 10 January 2018, Justice Forrest registered another US surrogacy order, this time being

for an Australian couple living in Los Angeles who had undertaken surrogacy in Texas.

Texas, as was Tennessee and North Carolina, was a prescribed overseas jurisdiction.

Following the approach that his Honour took in Re Grosvenor, he stated:

“This is another case where the parties and the solicitor inform the Court that the

surrogacy agreement entered into in the USA was a “commercial” one.

I am, as I considered I was in the earlier decision, clearly required to give

consideration in the public policy context within which my discretion is being

exercised. That context includes the fact that in Queensland, New South Wales and

the Australian Capital Territory entry into “commercial” surrogacy arrangements

abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of

course, I have already observed that Mr and Mrs Sigley reside in the USA and not

one of those jurisdictions. Whilst they currently intend to return to live in Australia at

some time in the future, it is not in one of the three jurisdictions just mentioned, but

rather the State of Victoria. Nevertheless they have entered into a commercial

surrogacy agreement and they seek the registration in this Australian Court of the

American Court Order that gives them the parenting rights over their child. If they

were “ordinarily resident” in Queensland, New South Wales or the ACT, they would

have, prima facie, committed a criminal offence. However, as the applicants’

solicitor points out in his submissions, Victoria allows intended parents to enter into

commercial surrogacy arrangements overseas and has not sought to criminalise such

behaviour. Entry by the applicants into the “commercial” surrogacy agreement was

lawful in the USA, particularly in the State of Texas where it was done and the

Australian Government has not determined to criminalise entry by Australian citizens

or residents into commercial surrogacy agreements overseas as, arguably, it could

do.

20 http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA//2018/3.html .

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Having given the matter my consideration, I am satisfied for all the reasons as I said

in my earlier decision…that the commercial nature of the surrogacy agreement alone

in this particular case should not determine the exercise of discretion against the

applicant. Different from that case though, in this case there are two children who

are brought into life through the surrogacy arrangements and both of those children

are the biological children of both of the applicants. Their gestational “mother” was

their carrier who assisted their biological parents bring them into the world. The two

children are both Australian citizens now as well, with legitimate expectations that

the legal nature of their parent-child relationship with both of their loving parents is

appropriately recognised in this country of theirs.”

The reference to legitimate expectations was a reference in my submissions that the High

Court of Australia had said in Teoh’s case (1995)21 that although Australia was a party to the

International Convention on the Rights of the Child, the Convention was not part of

Australia’s domestic law. Any child or the parents of the child had a legitimate expectation,

subject to any statute or regulation, that an officer of the Australian government would ensure

that Australia would comply with its international obligations. Article 8 of the Convention

refers to a child having a right to an identity. Jurisprudence from Europe in dealing with this

Article, and similar provisions in the European Convention on Human Rights identify that the

child’s family is that of the child and the intended parents.

His Honour then went on to say that the applicants were the de jure i.e. lawful, and biological

parents of the children and “I have not been able to identify any reason why they should not

be entitled to the registration of that Texas Court’s Order in this Court so their parent-child

relationship with [the children] is recognised appropriately in this country as they desire and

for the children’s sake.”

21 Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1995/20.html .

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Lamb & Shaw [2017] FamCA 76922

This is a case from North Queensland where surrogacy went wrong. There was in essence a

fallout between the surrogate and the intended parents. The intended mother and the

surrogate are third cousins.

After the child was born, there was a Mexican standoff at the hospital, at which time the

surrogate proposed to adopt out the child. The intended parents, worried that the surrogate

would adopt out the child, brought an urgent application in the Family Court for the child to

live with them. The parties were required to take part in mediation. By interim agreement,

the child went into the care of the intended parents. Regrettably there wasn’t an agreement as

to ultimately what was to happen so the matter proceeded to trial. At trial, Justice Tree

determined that there should not be time between the child and the surrogate.

Curiously, Justice Tree also found that under the particular wording of the relevant section of

the Status of Children Act 1978 (Qld) that the intended father (who was genetically the

father) was a parent of the child, albeit one with no rights or responsibilities.

[On my office checking the statute law following that decision, we discovered that no other

Australian State has an equivalent provision. The Northern Territory has an equivalent

provision only – but surrogacy does not occur there as far as I am aware.]

Regrettably, that wasn’t the end of the matter. The surrogate then appealed on the point as to

whether the intended father was a parent. Recently when the matter reached the appeal court,

that court determined that there had been an error at trial because there was no clear evidence

as to whether or not the surrogate was single at the time of implantation. There was some

suggestion at implantation that the surrogate and her boyfriend might have been in a de facto

relationship.

Accordingly, the matter was remitted back to the trial level, preferably to be heard before

Justice Tree again to determine that issue. We will see how that matter turns out.

22 www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/769.html seen on 21 May 2018.

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Since the initial decision in Lamb and Shaw, my firm has had three parentage order

applications before the Childrens Court of Queensland where there has been a single

surrogate. What approach should be followed? Is it one where the intended father is not a

parent, as has consistently been the view in Queensland and by virtue of similar case law in

New South Wales or is it one consistent with Lamb and Shaw that the intended father to a

single surrogate is a parent, albeit one with no rights and responsibilities?

In all three cases only the surrogate’s name was shown on the birth certificate. In those three

cases the Childrens Court judges have considered that either Lamb and Shaw is not relevant

to the exercise of the discretion or have distinguished as not being applicable to those cases.

It remains an uncertain area of law and I await with interest what happens with any further

developments in that case.

GETTING THE TECHNICAL ISSUES RIGHT

I can’t emphasise enough how important it is to get the technical issues absolutely right and

to ensure that any lawyers who are handling the matter are really expert in their field.

Last year my firm had a surrogacy matter which we had taken over. The parties to the

surrogacy arrangement were the intended parents and her mother the surrogate. The three of

them took part in counselling. The surrogate and the intended parents separately obtained

independent legal advice. A surrogacy arrangement was signed up. The counselling

recommended the counselling arrangement. The counsellor noted that the surrogate remained

married to the intended mother’s father, but they had separated many years before. This issue

was addressed in the report before the surrogacy arrangement was signed, but nevertheless

the surrogacy arrangement proceeded.

The surrogacy arrangement was presented to the ethics committee of a large IVF clinic,

which approved treatment. Treatment occurred. All went well. A child was conceived, born

and handed over.

In the meantime, the long estranged husband of the surrogate was dying. As a result the three

parties moved from New South Wales to Queensland to care for him. He died before the

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child was born. By moving to Queensland, the intended parents needed to make application

under the Queensland Surrogacy Act, not the NSW one. This was despite the fact that the

surrogacy arrangement was drafted under the NSW Act.

My firm was the asked to take over the matter. To my horror I saw that the surrogate’s

husband was not a party to the surrogacy arrangement. He had not received counselling nor

legal advice.

Solicitors in NSW had independently advised both the intended parents and the surrogate

before the surrogacy arrangement was signed. It somehow escaped both of their attention that

the surrogate’s husband may have been a parent under the Status of Children Act 1996

(NSW) and the Surrogacy Act 2010 (NSW).

There was no doubt once we had a careful look at the Surrogacy Act 2010 (NSW) that there

had been non-compliance with that Act so far as the surrogate’s husband was concerned. He

should have been a party. He should have had legal advice. He should have had counselling.

He was well aware of the surrogacy arrangement and in fact had written an email to my client

saying that he would pay for the IVF for it.

I was thankful that he had written that email because it got us over the line, as our clients

were able to persuade the court to dispense with various requirements under the Surrogacy

Act 2010 (Qld). It was a tricky business - that could easily have ended up with no parentage

order being made and the child’s legal parentage therefore left in limbo. All caused by poor

legal advice for both sides.

A plea

Please oh please oh please call those who want to have the children the intended parents.

Quite simply they are the people who intend to be the parents and parent the child. The

phrase is used in some States, for example New South Wales and Queensland. It is also the

international phrase. Other phrases that are used for the purposes of legislation have to be

used for legislation but otherwise they stink. To call someone a substitute parent, such as in

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the ACT is to say in effect they are not real, they are a substitute. They’re fake. To call

someone a commissioning parent sounds like they have commissioned a ship or a boat as

though they had bought a child. I have had clients, rightfully, complain to me that they have

been called substitute or commissioning. I have not had any clients complain to me that they

were called intended and then ultimately the parents.

Non-disclosure

I have become aware of a recent case where the intended parents, not satisfied with the report

from the counsellor, then went counsellor shopping, in order to obtain a favourable report so

that they could then undertake surrogacy. Ultimately they sought three counsellors. They did

not disclose to any of the counsellors that they had seen previous counsellors for the purposes

of a report for surrogacy. Please urge any of your counsellors that you work with to be alert

to this issue. I suggest that in your checklist for any ethics committee for your IVF clinic that

you ask for a copy of all counsellors’ reports obtained and ask the clients whether there are

any other reports, or whether they have been to any other counsellors for the purposes of the

surrogacy journey.

Some egg donor issues

It is common for Australians to go overseas for egg donation. Under Commonwealth

legislation and in every State other than WA (where it is 10 years) the penalty for paying an

egg donor under human cloning legislation above reasonable expenses is a penalty of up to

15 years imprisonment.

There is State legislation in every State plus the ACT. In the Northern Territory reliance is

solely on the Commonwealth legislation. There are long arm laws in Queensland, New South

Wales, ACT, South Australia and Western Australia. The Northern Territory has long arm

laws so far as under its Criminal Code which are relevant to the provisions of the

Transplantation and Anatomy Act.

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Someone who goes overseas for a commercial egg donor agreement may be in breach of the

relevant State or Territory human cloning legislation, State or Territory Transplantation and

Anatomy Act/Human Tissue Act, in light of the relevant long arm law.

A health professional, such as a doctor or nurse who facilitates the arrangement may be

committing an offence as a principal. For example in Queensland if you conspire with, aid

and abet or counsel or procure someone to commit the offence, then you are also a principal

offender, which means you too could be liable to a 15 year term of imprisonment.

Quite simply, if you have a patient who says that they are looking at undertaking egg

donation overseas, make sure they get good quality legal advice. If you tell them that it is

illegal for them to do that, that’s not accurate. It is proper for you to tell them that it may be

illegal. It would be wise to write a file note and it would be wise to refer them for legal

advice.

Carefully handled, they shouldn’t be committing a criminal offence. In the last few days I

spoke to new clients who told me that they have got overseas legal advice, entered into a

surrogacy arrangement which appears to be a criminal one in the law of their State and

entered into a commercial egg donor agreement, putting them at risk of committing an

offence under the Human Tissue Act/Transplantation and Anatomy Act in their State with a

penalty of up to 6 months imprisonment, but worse, putting them at risk of committing an

offence under the human cloning legislation with a possible penalty of up to 15 years

imprisonment in their State. Of the couple, the husband was in shock. I thought he was

going to decompensate in front of me. All because they had not received any legal advice

from an expert in the field before they started their journey.

If they had received that advice:

I am sure that they could have become parents but:

They wouldn’t have committed any offence.

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Feedback from clients

I believe that Australian IVF clinics are amongst the best in the world. We have pioneered

IVF. We have the lowest twinning rates in the world. ANZARD and RTAC are wonderful

means of ensuring high quality.

Thankfully not as often as I once heard, but still too often, I hear these things from my

clients:

1. We underwent endless rounds of IVF. Our doctor did not raise with us the possibility

of undertaking surrogacy. If only we had known that surrogacy was available, we

would have stopped the rollercoaster of IVF and undertaken surrogacy sooner.

2. The forms and procedures of the IVF clinic seem to be designed for heterosexual

couples and not for me (a single woman)/us (a gay couple).

3. It seems to be assumed that a gay couple can have children. If one can’t produce

sperm then the other can. We have had to rely upon a donor.

4. It seems to be assumed that a lesbian couple will never need surrogacy – but we did.

5. The US/Canadian clinic seems to be very focused on our needs and creating a baby.

By contrast the doctor/clinic in Australia seemed to be much more fixated on

procedures and not on the human touch. It was altogether a colder experience doing

this process in Australia than it was going overseas. We would never go to an IVF

clinic in Australia again.

I would just encourage you to be:

warm and welcoming to all patients;

focus on the human side and their journey;

be aware of the substance and spirit of antidiscrimination legislation.

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Yesterday I was sad to read research about transgender parents in Australia.23 This is

research in which 16 and 26 transmen who had experienced a gestational pregnancy

consented to being interviewed. The study is part of a larger project titled “The constructions

and experiences of parenthood amongst transgender Australians”. There were both open

and closed questions asked of the respondents related to four areas: demographic data, such

as age, education, and sexual orientation; participants’ experiences of their gender identity,

such as the term or terms they used to describe their gender identity, and steps they may have

taken towards transitioning; parenting information, such as number and age of children, care

arrangements and relationship with co-parents; and support systems.

As the researchers’ state:

“The participants in our study chose to pursue pregnancy for a variety of reasons.

Some participants had cisgender female partners whose fertility was affected by

medical issues, as Sam (32) describes:

(My partner’s) endometriosis was really severe…when we started talking

about a family I just knew it wasn’t going to be possible for her (to get

pregnant) so I decided that I’d do it. It wasn’t an altogether happy decision

but I knew it was the right one for us and I feel, actually, very grateful that I

could do that for us.

For other participants, being able to have a child that was biologically related to

them was positioned as important and valuable: “It just seemed like a huge privilege

to be able to have a child that shared my DNA”.

The authors’ state:

“It has been well established that transmen face significant difficulties when access

care and support for the reproductive health and wellbeing, and assisted fertility is no

23 Rosie Charter, Jane M. Usher, Janette Perz & Kerry Robinson (2018): The transgender parent: Experiences

and constructions of pregnancy and parenthood for transgender men in Australia, International Journal of

Transgenderism, DOI: 10.1080/15532739.2017.1399496, viewable at

https://doi.org/10.1080/15532739.2017.1399496.

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exception…as 18 of the 25 participants in this study were partnered with cisgender

women at the time of conceiving children, they would not be able to conceive their

children without accessing some form of external support, such as pursuing formal or

informal assisted fertility, including the acquisition and insemination of donor sperm,

and, in some cases, in vitro fertilisation.

For many participants, accessing sperm was the first step toward conceiving their

child…[there is then a recounting of those who obtained sperm donation at home].

However, experiences of assisted fertility were very different for those participants

who chose to use formal fertility services. Many described it as a “nightmare

process” that none were able to see through to completion.

We were rejected from multiple clinics due to “reasons unknown”. “We had a range

of appointments and each time the discussion centred almost completely on my genital

identity…everyone just seemed so uncomfortable seeing us.” (Justin, 30)

Other participants echoed this account, describing “embarrassing” and “awkward”

appointments followed by “cancelling our follow-ups”. Trent (36) stated:

“The doctor we saw was so awkward with us, kept misgendering me and repeatedly

asked why my (cisgender) partner wasn’t the one to have the baby.” For these

participants dealing with negative experiences with fertility service providers was

“the first in many pregnancy-related rejects and disappointments”. (Noel, 36).

Whilst transpeople are protected legally in Australia by HCPs (New South Wales

Government, 1977) these protections are not necessarily borne out in their actual

experiences. No participant in this study who attempted to access a fertility clinic

was actually granted treatment. This type of rejection and discrimination is reported

to be pervasive in the trans community and has a very significant impact on mental

health and wellbeing…as such, like many in the broader LGBTQI community,

transmen turn to informal networks and methods, indicated in the above accounts of

using known donors and at-home insemination, to assist them in achieving their goal

to conceive.”

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Stephen Page

23 April 2018