On Saturday and Sunday I attended the Surrogacy Australia conference in Melbourne. I had been asked to present about who was a parent in the international context, but a few weeks out from the conference, the plan changed. I was asked instead to chair the legal session and to moderate a panel of lawyers, discussing various issues to do with surrogacy. Those seesions like the conference as a whole went well.
Here is the paper prepared for, but ultimately not delivered at the conference...
BEGAT
AND BEWARE – YOU MAY NOT BE PARENTS
By
Stephen Page
of
Harrington
Family Lawyers
“There
are many and varied parts to parenthood.
Where the path involves an international surrogacy arrangement, it is
long and difficult. As this case
demonstrates, the commissioning parents’ goal of the safe arrival of a longed
for child often results in them overlooking or underestimating the legal issues
involved. From the children’s
perspective at least, in the pursuit of parenthood, it is important that the
commissioning parents and those who assist them give proper regard to ensuring
that parental status is possible once the children are born.”
“The
book of the generation of Jesus Christ, the Son of David, the Son of Abraham.
Abraham
begat Isaac; and Isaac begat Jacob; and Jacob begat Judus and his brethren;
And
Judas begat Phares and Zara of Thamar; and Phares begat Esrom; and Esrom begat
Aran”
The gospel according to St.
Matthew then details the forty generations from Abraham to Jesus in which the
word “begat” is prominent. You may be
surprised to learn that “begat” has been cited in a legal context.
The Family Court has taken
pains to identify to make a distinction between children conceived naturally,
i.e. begat, and those conceived through some assisted reproductive technology
or artificial insemination.
Keep
it simple, stupid: conceive naturally and you are a parent
If you have sex which results
in the conception of a child, then you are the parent of the child. It doesn’t matter if you sign some document
saying that you are merely a “donor”. It
is a very simple proposition; if you have sex, that results in the conception
and birth of a child, then you are not only the parent as a matter of genetics,
but you are a parent as a matter of law.
Whilst the law has certain
presumptions in place about parentage, about who is presumed to be or not to be
a parent, if you have sex that results in the conception and birth of a child,
then you are the parent as a matter of law.
For example:
A lesbian couple wanted to have a
child. They were looking for a sperm
donor. The couple emphasised that they
did not want the man to have any legal rights to the child, and that the child
would not be advised that the man was the biological father. The man was not to take any parental role and
would not be responsible for the financial support of the child. In the event of a separation of the couple,
it was acknowledged that the co-mother would assist in the financial support of
the child. This is later recorded in writing after the child’s birth. Conception took place via vaginal
intercourse. The couple separated, the
mother commenced proceedings seeking a declaration that the man was liable to
pay child support. A DNA test determined
that the man was the father of the child at 99.98%. The Family Court held that the man was the
father of the child.
If you are a donor in Australia
then ordinarily you aren’t a parent of a child.
The
law presumes that if you provide an egg or sperm to enable a child to be
conceived, which results in artificial insemination or implantation of an
embryo, then ordinarily you won’t be the parent of the child.
The
parent of the child will be the woman who gave birth and if she has a spouse,
then that spouse. If the relationship
is a lesbian relationship, then the spouse will also be recognised as a parent.
The
husband or de facto husband or lesbian partner of the woman will therefore be
recognised as the other parent, irrespective or not as to whether they were a
donor.
The
only person who trumps the partner or spouse of the woman as a legal parent of
the child is a man who had sexual intercourse with the woman, resulting in the
conception of the child.
Going overseas can be illegal
I
want to touch on three aspects of illegality:
·
It is an offence throughout Australia (except
the Northern Territory) to enter into a commercial surrogacy arrangement. In Queensland, New South Wales and the
Australian Capital Territory it is an offence to enter into a commercial
surrogacy arrangement if the person is ordinarily resident (in New South Wales
there is also an additional alternative of domicile) in that jurisdiction. Queensland has a further offence of making
payment under a commercial surrogacy arrangement.
·
In Tasmania the new Surrogacy Act (which at the time of writing this presentation was
not in force) does not make it an offence to engage in commercial surrogacy
overseas, but does make it an offence in Tasmania to compile information for
the purposes of making or receiving payment relating to a commercial surrogacy
arrangement. Although this section is
designed to catch surrogacy agencies and brokers, those who compile information
with the intention of then entering into a commercial surrogacy arrangement
will also be caught.
·
It is an often overlooked offence but a very
serious offence nevertheless to engage in commercial trade in eggs, sperm or
embryos. Under Commonwealth legislation
this offence is subject to a maximum of fifteen years imprisonment. There is complementary legislation in every
State and in the ACT (but not the Northern Territory) also prescribing a
maximum 15 years term of imprisonment.
Those undertaking commercial surrogacy overseas must be very careful to
ensure that they do not engage in the commercial trade in eggs in their home
jurisdiction. For example, in New South
Wales an offence is committed if part
of the offence is committed in New South Wales, or that the offence has an effect in New South Wales.
Australia has a schizoid way of
saying who is a “parent”.
This
is when it becomes obvious that there may be a difference between a parent as a
matter of law and a parent as a matter of genetics. If a “child”
is born to an Australian citizen who is a “parent”
then by virtue of the Australian
Citizenship Act 1997,
the child is taken to have acquired Australian citizenship by descent. If a child is born overseas where the child
has been conceived naturally, i.e. begat, there is no question who is the
parent and who is the child. It is the
genetic parents.
The
difficulty with surrogacy is that sexual intercourse does not lead to the conception
of the child. Instead:
·
Sperm from a man (who may be the intended father
or may be a sperm donor) and
·
An egg from a woman (who may be the intended
mother, a donor or, rarely a surrogate);
·
Are combined in a small glass vial;
·
Then the resultant embryo is placed in an
incubator;
·
Then either used fresh or frozen in liquid
nitrogen;
·
Then either as fresh or thawed, the embryo is
implanted into the body of another woman, the surrogate, who ultimately gives
birth to the child.
Who is
the parent out of this arrangement? Is
it:
·
The surrogate?
·
Her husband or partner? (If she has one)
·
The sperm donor?
·
The egg donor?
·
The intended parents?
·
If the intended parents are in a same sex
relationship, do both of them get recognised?
Here
the approach taken by the Department of Immigration and Citizenship and the law
as declared by judges, is at some variance.
H –v- Minister for Immigration
and Citizenship (2010)
The
Federal Court rejected the approach taken by the Department of Immigration and
Citizenship. The Department argued that
the relevant test for who is a “parent”
and who is a “child” under the Australian Citizenship Act was
determined by genetics or determined by the relevant definitions under the Family Law Act.
In
two cases decided side by side (neither of which was a surrogacy case) the
Federal Court determined that with the poor drafting of “parent” and “child”
under the Australian Citizenship Act,
who was the “parent” would be
determined by demonstrated intent.
The
Full Court of the Federal Court held :
“Today, the fundamental consideration in
acquiring citizenship is the strength of the connection between a person and
Australia; it is this which provides the basis for the ‘common bond’ mentioned
in the preamble. Within this framework,
there is, however, little contextual support for the proposition of the word
‘parent’ has some restrictive meaning, signifying only a biological parent, as
opposed to a parent, whoever that may be, within ordinary meaning of the
word. Biological parentage can scarcely
be the sine qua non of a meaningful connection to the Australian
community…..Bearing this in mind, the more rational approach is not to
attribute some technical meaning to the word ‘parent’ in s16(2), but instead to
attribute to the word its ordinary meaning as evident in ordinary contemporary
English usage.”
The
Court went on to say :
There is nothing in the legislative object,
the legislative text, or the legislative structure of the Citizenship Act that
requires the Court to conclude that, in the specific context of the s16(2), has
the meaning it bears in ordinary contemporary English usage. Indeed legislative history confirms that this
approach is most in keeping with the development of citizenship legislation
over time and with the spirit and intendment of the current Citizenship
Act. No sound reason has been advanced
to warrant a more limited reading of the word.
The word ‘parent’ is an everyday word in
the English language, expressive of both the status and the relationship to
another. Today, in the Citizenship Act
it self-recognizes, not all parents become parents in the same way….This is not
to say that parents do not share common characteristics; an everyday use of the word indicates that
they do.
Being a parent within the ordinary meaning
of the word may depend on various factors, including social, legal and
biological. Once, in the case of an
illegitimate child, biological connection was not enough; Today, biological connection in specific
incidences may not be enough………. Perhaps in a typical case, almost all the
relevant considerations, whether biological, legal, or social will point to the
same person as being ‘the parents’ of a person.
Typically, parentage is not just a matter of biology but of intense
commitment to another, expressed by acknowledging that other person is one’s
own and treating him or her as one’s own.
The ordinary meaning of the word ‘parent’
is, however, clearly a question of fact, as is the question of whether a particular
person qualifies as a parent within that ordinary meaning, implying s16(2)(a)
the Tribunal is bound to determine whether or not, at the time of the
applicant’s birth, he or she had a citizen parent. In deciding whether a person can be property
described as the applicant’s parent, the Tribunal is obliged to consider the
evidence before it, including evidence as to the supposed parents’ conduct
before and at the time of birth and evidence as to the conduct of any other
person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be
relevant as confirming that parentage at the time of birth. For example, evidence that a person
acknowledges the applicant as his own before and at the time of birth and, thereafter
treated the applicant as his own, may justify a finding of that person as a
parent of the applicant within the ordinary meaning of the word ‘parent’ at the
time of the birth…….
We can discern no relevant justification
for holding…….that a person can only be a ‘parent’ within the meaning of s16(2)
where it can be established that he or she has a relevant link to the
applicant. If the Minister’s arguments
in this case were accepted, a person could be treated as a citizen from birth
and believe himself to be a citizen, only to find years later, based on a DNA
test undertaken for other reason, that under the law he is not and never was a
citizen……….As a practical matter, we do not consider that Parliament would have
intended the likely unfortunately results of the Minister’s construction……….The
practical effect of this construction would be to accord the science of
genetics a status Parliament has not given it.”
The Department takes a
different approach
I
understand that the approach taken by the Department varies from country to
country and specifically:
·
In India the approach of the Department is to
insist that there is a genetic connection.
·
In Thailand the approach of the Department is to
insist on a genetic connection.
·
For those intended parents going to the United
States the approach appears to depend on the officer of the Department. Some
are insistent on DNA testing. Others are
satisfied with the making of custody orders, consistent with H v Minister for Immigration and
Citizenship.
Why are custody orders needed
in the US, sometimes in Thailand but not in India?
Each
overseas country has its own procedures.
More to the point, there are two international conventions concerning
children, both signed at The Hague in the Netherlands. One is called the Hague Abduction Convention.
The other is called the Hague
Inter-County Adoption Convention.
Officers
of the Department of Immigration and Citizenship wish to ensure, as part of
Australia’s international obligations, as Australia is a signatory to both
conventions, that children born through surrogacy arrangements aren’t children
who have been improperly abducted, sold or adopted in the overseas
jurisdiction.
India
is not a signatory to the Abduction
Convention, but Thailand and the United States are. The effect of the Abduction Convention is that if a child is ordinarily resident in a
country which is the signatory of the convention, such as Thailand, and the
child is then either wrongfully removed or having been taken to, in this case
Australia, and wrongfully detained in Australia, then a person with rights of
custody in that first country, in this case Thailand, can apply to have the
child returned to that first country as quickly as possible. This is a procedure that would involve the
Governments of both countries and there is a strong presumption that the child
would return, as seen recently in the four Italian sisters’ case.
Because
Thailand and the United States are both signatories to Abduction Convention, the best practice is to have court orders in
place to overcome issues to do with the Abduction
Convention.
In
the United States, as Steve Snyder and John Weltman will no doubt talk about,
obtaining a custody order in surrogacy cases is a straight forward procedure.
In
Thailand, it is not a straight forward procedure, it being presumed that young
children should remain with their mother.
As there are no laws concerning surrogacy, the surrogate is presumed to
be the mother.
|
Example:
Bill
and Joe Bloggs undertake surrogacy through the You Beauty Rippa Surrogacy
Agency in Kerala which specialises in surrogacies for Australians. The surrogate is implanted with an embryo
comprised of Bill’s sperm and the egg of an anonymous Caucasian donor. When the child is born it is clearly not
Caucasian. Despite the terms of the
surrogacy agreement, the surrogate did not stop having sex with her
husband. The child was found to be
genetically the child of the surrogate and her husband.
Clearly
as to how the Department administers the Citizenship
Act, Bill and Joe would not be “parents”
of the child if they are not genetically related to the child. However despite everything that had
occurred, they decided to raise the child as their own then within the
meaning of H v Minister for Immigration
and Citizenship. They would be the “parents”
of the “child” who would be
entitled to Australian citizenship by descent. It is unlikely that the Department would
accept that the child is an Australian citizen.
|
|
Example:
Bruce
and Matt are a gay couple who have undertaken surrogacy with the Ripsnorter
Surrogacy Agency in Bangkok. Bruce is
an Australian citizen. Matt is
not. Each supply a sample of sperm at
the request of the agency, for testing purposes. It is determined that Bruce has the best
quality sperm. He is to be the
father. The child is conceived and
born. Bruce is named on the Thai birth
certificate as dad. The application
for Australian citizenship is made with Bruce as the father. At the request of the Department the DNA
test is undertaken. This demonstrates
that Bruce is not the father. Subsequent tests determine that Matt is the
father. Under the approach taken by
the Department, it is unlikely that the Department would accept the child as
being an Australian citizen. Under the
test in H v Minister for Immigration
and Citizenship, Bruce would be considered to be the parent of the child.
|
The Thai Cases
Because
of complications with Thai law a series of cases were brought in the Family
Court in Sydney. This was so that
parentage orders were made so that the hurdles with the Hague Abduction
Convention could be overcome in the eyes of the Department, and therefore the
children could be granted citizenship.
There
were many cases decided in which there were no great difficulties in obtaining
parentage orders.
On
30 June 2011, the potential for who is or who is not a parent changed
dramatically. On that day, Justice Watts
made parentage orders in four matters, two of which came from Queensland and
two from New South Wales. The Queensland
couples were referred to the Queensland Director of Public Prosecutions
because it appeared that the parties had engaged in commercial surrogacy which
is an offence in Queensland.
His
Honour questioned that as the law does not reward those who commit criminal
acts, so might the law not recognise someone as a “parent” of a child who engaged in the illegal act. It is possible that the Department of
Immigration and Citizenship could adopt this reasoning, although it has not
made any noises to do so. These cases
highlight the increased dangers for those intended parents from Queensland, New
South Wales, the ACT and Tasmania as to what impact there might be upon their
children, i.e. the possibility that their children might not be granted
citizenship.
In
the other two cases, his Honour dealt with the relevant provisions of the Status of Children Act and questioned
whether the intended parents would be recognised as parents of the children in
circumstances where the parenting presumptions in the Status of Children Act (which his Honour noted were not intended for
surrogacy matters) might mean that the only parent of the child was the
surrogate.
If
that were the case therefore the intended parents are not “parents” then that might have implications for citizenship of any
child born through surrogacy overseas.
Ellison and Karnchanit
v. Gough and Kaur
In
Ellison and Karnchanit, the test case
concerning overseas surrogacy, Justice Ryan of the Family Court held that the
Queensland intended father was the “parent”
as a matter of law for Australian purposes.
Even though the intended parents were from Queensland, her Honour did
not refer the matter to the Director of Public Prosecutions.
The
intended parents commenced proceedings in early 2011 no doubt hoping for a
quick result from the Family Court to make parenting orders. Instead the matter turned into a 3 day trial
in which they were interviewed by a court expert for a family report, an
independent children’s lawyer was appointed and the Australian Human Rights
Commission intervened.
Justice
Ryan took a different approach to Justice Watts in that she found that the
intended father was the father of the child as a matter of Australian law. This was not because of the Thai birth
certificate or from genetics but from a complex interplay of amongst others the
Sex Discrimination Act and
Queensland’s Status of Children Act.
Her Honour was quite clear to try and ensure that it wasn’t a case of the
children being victims of child trafficking for whom unidentified parents
searched in vain.
Her
Honour set out guidelines as to what should happen in these cases in
future. They are:
133.
“For all surrogacy cases, the steps set
out below should be followed.
134.
An Independent Children’s Lawyer is
appointed to represent the child’s interests.
135.
Affidavit evidence of the applicant(s)
and the birth mother comprising:
a.
their personal circumstances, in
particular the circumstances at the time
the procedure took place;
b.
their circumstances leading up to the
surrogacy agreement and of the procedure
itself;
c.
the circumstances after the birth of
the child and subsequent arrangements
for the care of the child.
136.
Independent evidence regarding the
identification of the child including:
a.
the surrogacy contract/agreement
entered into between the persons seeking
the parenting orders and the clinic and/or surrogate mother;
b.
a certified copy of the child’s birth
certificate, and, if not in English, a translation
accompanied by an affidavit of the person making the translation verifying that it is a
correct translation and setting out the translator’s
full name, address and qualifications;
c.
parentage testing in accordance with
the Regulations to ascertain whether
that the child is the biological child of the person/s seeking the parenting orders;
d.
evidence of Australian citizenship of
the child if citizenship has been granted.
137.
Independent evidence with respect to
the surrogate birth mother. This may be obtained
by a family consultant or an independent lawyer, including:
a.
confirmation that legal advice and
counselling were provided to the surrogate
mother prior to entering into the surrogacy arrangement;
b.
confirmation that the surrogacy arrangement
was entered into before the child
was conceived;
c. confirmation
that the surrogacy arrangement was made with the informed consent of the surrogate mother;
d. evidence
after the birth of the child of the surrogate mother’s views about the orders sought and what
relationship, if any, she proposes with
the child;
e. if
the child has been granted a visa to enter Australia, evidence of participation by the surrogate mother in an
interview with immigration officials
prior to the grant of the visa, and the views expressed by her during this interview.
138.
The preparation of a Family Report
which addresses:
a. the
nature of the child’s relationship with the persons seeking parenting orders;
b. the
effect on the child of changing their circumstances;
c. an
assessment of the persons seeking the parenting orders capacity and commitment to the long-term
welfare of the child;
d. the
persons seeking the parenting orders’ capacity to promote the child’s connection to their country of birth’s
culture including but not limited to
their birth mother;
e. advice
in relation to issues which may arise concerning the child’s identity and how those issues are best managed;
f. the
views of the birth mother, in particular her consent to the proposed parenting orders, and other matters with
respect to the birth mother referred to
above.
139.
Other evidence including:
a. evidence
of the legal regime in the overseas jurisdiction in which the procedure took place with respect to
surrogacy arrangements;
b. evidence
of the legal regime in the overseas jurisdiction in which the procedure took place with respect to
the rights of the birth mother, and if
applicable, of her husband or de facto partner.”
The
effect in Thailand since Ellison and
Karnchanit was before the court, in late 2011 the Department of Immigration
and Citizenship has changed its procedures so that it requires the consent of
the Thai surrogate to be obtained.
Interviews occur at the Embassy offices.
The effect of the interviews is so as to avoid the need to go to court
so as to avoid a repetition of cases such as Ellison and Karnchanit.
One
of the key features about Ellison and Karnchanit
was that the intended parents simply did not know as to whether the surrogate
was in a relationship. The turning point
of the case was that the surrogate was not in a de facto relationship at the
time of the conception of the child. If
she had been, then the intended father would not have been the father of the
child for Australian purposes, but the surrogate’s de facto partner would have
been the father. Similarly if the
surrogate had been married (as often occurs overseas) then the surrogate’s
husband would have been the father of the child.
Similarly
if the surrogate had been living in a lesbian relationship, her lesbian partner
(and not the intended father) would for Australian purposes have been the other
parent of the child.
Justice
Ryan did not make any decision about who the mother was of the child and it is
a moot point as to whether it was the intended mother, the surrogate or the egg
donor.
Essentially
anyone who goes to the Family Court in light of Ellison and Karnchanit must be crazy or very
determined to spend a large sum of money with no definite outcome to enable a
lawyer and/or social worker to go on a working holiday to Thailand (or other
country that might be relevant).
It
is my view having reviewed Ellison and Karnchanit
that although her Honour found that Mr Ellison was the father for Australian
Law there were other provisions of Queensland’s Status of Children Act that her Honour did not consider that may
mean that he is not the father for those purposes.
Gough and Kaur [2012]
Mr
and Mrs Gough by contrast came before Justice Macmillan in the Family
Court. Mr and Mrs Gough had undertaken
surrogacy in Thailand. Justice Macmillan
made a parenting order but in the process of doing so that the intended father
was not the father as a matter of law of the child. As her Honour put it in referring to the
intended father:
“Whilst
he provided genetic material, the child is not his child for the purposes of
the [Family Law] Act.”
So
there you have it – Justice Ryan is of the view that an intended father in the
position of Mr and Mrs Gough could be a “parent”
for the purpose of the Family Law Act,
but Justice Macmillan was of the view that he was not.
Mr
and Mrs Schone went to India for commercial surrogacy and then appeared before
Federal Magistrate Phipps. His Honour
noted the difference in approaches in Ellison
and Karnchanit and Gough and Gough
as he put it:
“If
I was to proceed with this case, I would be faced with conflicting decisions by
Family Court of Australia Judges.”
His
Honour then went on to say that although Justice Ryan had set out procedure for
the appointment of an independent children’s lawyer that was not in accordance
with procedure dictated in Victoria by the Legal Aid Commission. His Honour transferred the matter to the
Family Court where it has not yet been determined.
A
court process of the kind described in Ellison
and Karnchanit would often cost in the order of $50,000 to $100,000 or
more.
Mr Blake and Mr Marston undertook surrogacy in India. Justice
Crisford dealt with an application by Mr Blake, Mr Marston’s partner, to adopt
the twins who were born under that surrogacy arrangement in Mumbai.
Mr Marston and the surrogate, Mrs S and her husband entered
into a surrogacy agreement. In
accordance with that agreement Mr and Mrs S relinquished all their rights to
any children born of the surrogacy procedure and covenanted not to engage in
any legal proceedings in relation to their rights of custody of the
children. The surrogacy agreement made
no mention of Mr Blake. The children
came into the care of Mr Blake and Mr Marston upon their birth. Mr Marston was shown to be the genetic parent
of the children. Each of the children
were registered as Australian citizens by descent.
To be eligible to adopt, Mr Blake had to fulfil the
definition of a “step-parent” for the
purposes of a step-parent adoption in Western Australia and therefore Mr
Marston would have to be defined as either a “birth parent” or “adoptive
parent” of the children. Much of the
case turned on the language of the Artificial
Conception Act, Western Australia’s legislation dealing with parenting
presumptions.
Her Honour stated:
“Although the Court is satisfied that Mr
Marston has established on the balance of probability
that he is a biological or genetic father of the twins, it does not automatically follow that the state law
recognises either him as a parent of Mr Blake as
a step-parent…
There are certified copies of overseas birth certificates
showing Mr Marston as the father.
The Certificates were accepted by the Department of Immigration and Citizenship in assessing the issue of
citizenship and the provision of passports.
One overarching consideration is
that since July 2010 Mr Marston and Mr Blake have acted as parents to these children. They have fulfilled that role for over two
years without input from any
other person who might be seen as a parent…
To suggest that Mr Marston is anything other than a
parent or a father within its ordinary
meaning is to turn a blind eye to the reality of ‘single families’ in present
day society. It is also turning a blind eye to the reality
of the situation presently before the Court. The objective facts surrounding the birth and
the manner in which various agencies have
treated those circumstances coupled with the fact the genetic father acting in that role since the birth
of the twins points to the use of an expanded definition
of parents.
To adopt any other interpretation would serve no purpose
in addressing any public policy
issues if, indeed, any exist. It would
serve no purpose in enhancing the future welfare
and best interests of these children”.
Her Honour then went on to make the adoption order. There are some significant features of this
case:
1.
The Court looked at the reality of who is a
parent;
2.
The provisions of the Artificial Conception Act are much like the Status of Children Act in New South Wales and similar legislation
in other states.
3.
By looking at the reality of the situation her
Honour has possibly opened the door for more cases in which an intended father
maybe considered to be the father of a child.
4.
It was only because of the position of the WA
Department for Child Protection that there was no investigation of views of the
surrogate or her husband otherwise it is likely that in line with Ellison v Karnchanit such a cost and
slow procedure would have occurred. Mr
Blake and Mr Marston were lucky.
5.
This case is an illustration of how the law can
cater for unintended cases. The Adoption Act was intended to apply to
home grown adoptions. Accordingly there
would be an adoption plan. Her Honour
saw that in light of the surrogacy contract there was no need for that.
6.
This case is also an illustration of how in
other states such a step might not be taken.
In Queensland, for example, adoption by same sex couples is banned,
which also means that a decision like this could never occur under current laws
in Queensland.
7.
Finally, this case is yet another illustration
about why there needs to be reform about who is or who is not a parent through
a surrogacy arrangement, and some common sense, as seen in this case, as well.
Parents are not parents
Intended
parents may or may not be genetically parents of a child. The effect of those decisions of the Federal
Court and Family Court and reflecting upon State legislation one can say this:
1.
A person may genetically be a parent of the
child but not a parent as a matter of law.
2.
A person may not be genetically a parent of the
child but may be a parent of the child for some purposes at law.
3.
While a person might be recognised for some
purposes as a matter of law as the parent of a child (for example for
citizenship purposes) that person may not be recognised for other purposes as
the parent of the child, such as under the Family
Law Act or to do with wills and estate planning.
4.
A birth certificate issued overseas does not
mean that you are the parent of a child in Australia as a matter of law.
5.
One of the biggest risks is that children will
be disinherited. It is absolutely imperative
that anyone who is undertaking overseas surrogacy (whether commercial or
altruistic) needs to ensure that wills are up to date, that they make specific
reference before the birth of the child to anyone born a child and after the
birth of the child to that child specifically and that there be appropriate
documentation drawn so that the child is not accidently disinherited.
It is only a question of time in my view that children will
be disinherited because of a failure of intended parents to properly plan.
Possible
Reform
Before she resigned as Attorney General, Nicola Roxon asked
a statutory body, the Family Law Council, to review how the Family Law Act relates to the various
state Surrogacy Acts. That review is
likely report before the end of the year.
Whoever the Attorney will be, it will not be Nicola Roxon.
Submissions to the Family Law Council are open until 1May
2013.
US
Orders
It is possible for orders to be, in effect, orders made
under the Family Law Act. The process in the United States necessarily
involves obtaining a custody order.
The Family Law Act
enables final orders that have been made overseas (with some exceptions) to
have the same force and effect as if they were an order made by that Court, for
example, the Superior Court of California at Los Angeles, under the Family Law Act.
What is required is an administrative process to register an
order.
Section 70J of the Family
Law Act provides:
(a) each person:
(i) with whom the child is supposed to live; or
(ii) who is to spend time with the child; or
(iii) who is to have contact with the child; or
(iv) who has rights of custody or access in relation to the child;
(b) the court is satisfied that there are substantial grounds for believing that the
child’s welfare requires that the court exercise jurisdiction in the proceedings.
(a) that the welfare of the child is likely to be adversely affected if the order is not made; or
Although registration is an administrative process, one
wonders what approach a registrar might take on an application for registration
of orders made in the United States having regard to the decision in Ellison and Karnchanit.
The
relevant overseas jurisdictions that are recognised under the Family Law Act
include:
·
California
·
Idaho
·
Illinois
·
Ohio
·
Minnesota
·
Massachusetts
Although
the effect of this provision of the Family
Law Act may not recognise intended parents as “parents”, it may mean that
it grants those intended parents all the rights of parentage (other than the
issue of inheritance) if the order
the order is registered properly under the Family
Law Act.
It
is in my view essential that anyone contemplating obtaining such an order from
the US obtains good legal advice from an Australian Lawyer about the form of
the order, the registration process with the Family Court and as to the
particular jurisdiction to ensure that the order is made in the correct
jurisdiction and can therefore be registered under the Family Law Act.
In my view one of the simplest alterations is to:
a.
Amend the Australian
Citizenship Act so that legislation recognises the effect of the decision
in H v Minister of Immigration and
Citizenship so we don’t have this discord between what the court has
pronounced and the approach taken in different jurisdictions by the Department;
b.
Amend the Family
Law Act so that there is a presumption that a person who has been
recognised as a parent for the purposes of the Australian Citizenship Act by the Department of Immigration and
Citizenship is also a parent for the purposes of the Family Law Act;
c.
Similarly amend State Legislation such as the Artificial Conception Act (WA) and the Status of Children Act (NSW) making a
similar recognition;
d.
Amend the Family
Law Act so that the spouse (whether married or de facto and irrespective of
gender) of a person in being so recognised is also a parent of the child.
e.
Similarly amend the various state legislation to
accord the same recognition.
Conclusion
Finally I leave you with this thought. In September 2012 I presented to New South
Wales MP’s. I told them that their
legislation, Status of Children Act (NSW)
as Justice Watts had identified, probably meant that people from New South
Wales who had gone overseas (whether legally or not) were not recognised for
the laws in New South Wales and particularly for inheritance purposes as the
parents of their children. The reaction
of the MP’s was disbelief and shock.
Several of them had their jaws agape they did not know that their laws
had that effect.
Stephen Page
5 February 2013
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with me here:
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Gay and Lesbian
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Surrogacy
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Stephen
Page is a partner of Harrington Family Lawyers, Brisbane. He is an accredited
family law specialist. He is an
international representative of the American Bar Association Assisted Reproductive
Technology Committee Executive Council, a member of the International Surrogacy
Forum and a member of the Fertility Society of Australia. He is the author of the Australian surrogacy
and Adoption Blog: http://surrogacyandadoption.blogspot.com.au
