Tuesday, February 7, 2017

South Australia decides to pause before giving IVF equality

Moves to remove discrimination in South Australia against LGBTI couples and singles in family formation law have taken a pause. The Weatherill government introduced the Relationships Register Bill to get rid of a whole bunch of discrimination against LGBTI couples and singles, including in IVF and surrogacy, as I posted last month.

However, it is not to be- at least for the moment. The Government successfully managed to get the Relationships Register Bill through both Houses- but there was a bit missing: all the bits related to IVF and surrogacy have been removed. It turns out, the Government decided to split the Bill- so these reforms appear to be still on track- but not quite yet. Hopefully they won't be long.

SA to allow singles, same sex couples to adopt

The South Australian Parliament has passed a law which will mean that single people and same sex couples will, for the first time, be allowed in that State to adopt.

Until about a year ago, four Australian jurisdictions prohibited same sex couples from adopting:

  • Victoria
  • Queensland
  • South Australia
  • Northern Territory
Since then, Victoria and Queensland have passed laws removing that discrimination. South Australia's law is to commence on a date to be fixed.

Only the Northern Territory is not changing its laws, and will for the foreseeable future continue to discriminate in this area.

Tuesday, January 31, 2017

Gay Aussie couples should reconsider going to Texas for surrogacy

Australians have ventured far and wide across the US to undertake surrogacy, not remaining content in California- going from Oregon in the west to Minnesota int he mid west,  Massachusetts in the north-east, and Tennessee and Florida in the south- and apparently most places in between.

One of the places that Aussies have been more interested in in recent times has been Texas. It's cheaper for surrogacy and seems to be well run. It has until now provided relative certainty. Texan attorneys have told me that if you are gay and married, then following the US Supreme Court case that legalised gay marriage across the US in 2015, Texas welcomed you with open arms.

I am now of the view that gay Aussies should pause before they consider going to Texas. This is aside from the obvious issue that in several parts of Australia it is a criminal offence to undertake commercial surrogacy overseas.

Why I've formed this view is because of a challenge currently under way in the  Supreme Court of Texas. That court a week ago has allowed a case to progress where there is a challenge to the rights of gay and lesbian married Texans. The challenge isn't to their being married, but whether they should have the same rights as heterosexual married couples. Essentially it is argued that gay and lesbian married couples shouldn't have the same rights as heterosexual married couples.

The US National LGBT Bar Association has raised concerns about the possible impact of the Texan case.

The fact that the case is being openly considered speaks volumes as to the current climate in Texas and means that gay married couples, who might rely upon Texas surrogacy law to become parents there, have to reconsider whether that is a good choice. if the Texas Supreme Court upholds the challenge, then it is expected that there will be a series of court cases about the issue- while the law in Texas on the point remains uncertain. In the meantime, gay married couples, in my view should reconsider going to Texas for surrogacy. To do otherwise might be to invite a lot of trouble.

Those from the 7 countries should pause on surrogacy in the US

People living in Australia who have citizenship of one of the list of 7 countries banned by President Trump should reconsider undertaking surrogacy in the US. While Malcolm Turnbull has said that the US will exempt dual citizen Australians from the ban, news from this morning was that a dual national Iranian/Australian student had been denied a visa to enter the US as part of a school trip. Presumably all her school mates will be able to go, but she won't.

The seven countries are:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

Given  that surrogacy is a journey that typically takes 12-18 months on a good journey, but might take up to 4 years if things don't go quite as smoothly, not being able to travel to the country where you are undertaking surrogacy is a disaster in the making if you are an intended parent.

Those who come from those countries should think very carefully before considering surrogacy in the US. There could be few things worse than having your child born there and not being able to be with them.

Let's hope some clear, transparent and certain rules are put back in place for those seeking to undergo surrogacy in the US.

Sunday, January 29, 2017

European Court of Human Rights: parents have to be biological parents

In a decision handed down on 24 January, the European Court of Human Rights has rejected arguments by Italian intended parents that they were the parents of a child born through a surrogacy arrangement in Russia- because neither of them were genetically the parents.

In the case, called Paradiso and Campanelli v Italy, the intended parents had, in breach of Italian law, gone to Russia and undertaken surrogacy there. There was argument in the case about whether the Russian birth certificate was valid (as it appears Russian law is unclear when there is no genetic relationship between the intended parents and the child), which said that the intended parents were the parents of the child. The child was conceived from both donor egg and donor sperm. The donors were anonymous- meaning that the child's genetic origins were unknown.

Within a few months of the intended parents returning to Italy with the child, Italian authorities acted to place the child into adoption. The intended parents fought this unsuccessfully, all the way to the highest court in Europe, the Grand Chamber of the European Court of Human Rights.

The court determined by 11 judges to 6 that the actions of Italy did not breach Article 8 of the European Convention on Human Rights. Article 8 provides that everyone has the right to respect for his private and family life. The prime question determined on the appeal was whether there was a family.

The court concluded that there was not a family as a matter of law because neither of the intended parents was related to the child. If one of them had been related, then it would have been a different outcome.

It was noted that due to an absence of a genetic relationship, their relationship was not recognised as parent and child under Italian law.

The intended parents argued that they were parents under Russian law, and that therefore the parent/child or family relationship should be recognised. The court noted that the intended parents had acted illegally under Italian law in bringing a foreign child who had no biological ties with either of them, in breach of the rules laid down as to international adoption, and that they had entered into an agreement for the husband's sperm to be used to fertilise eggs from another woman, in breach of Italian law.

The court then considered whether there had been a de facto family in existence, but because of the short period between when the child came into their care and when the child was removed by Italian authorities, there was not enough time to establish that de facto care.

The court found that the conduct of Italian authorities impugned their private life, as they had a genuine intention to become parents, initially via IVF, then by applying for and obtaining formal approval to adopt, and lastly by turning to egg donation and the assistance of a surrogate.

The court found that the Italian authorities actions were justified in the absence of any genetic ties and the breach of Italian law concerning international adoption and on medically assisted reproduction. The measures taken by authorities were intended to ensure the immediate and permanent rupture of any contact between the intended parents and the child, and the child's placement in a home and also under guardianship.

The court stated:

"By prohibiting surrogacy arrangements, Italy has taken the view that it is pursuing the public interest of protecting the women and children potentially affected by practices which it regards as highly problematic from an ethical point of view. This policy is considered very important...where, as here, commercial surrogacy arrangements are involved.  That underlying public interest is also of relevance in respect of measures taken by a State to discourage its nationals from having recourse abroad to such practices which are forbidden on its own territory."

Parallels with the International Convention


Australia, like Italy is a party to the International Convention on the Rights of the Child. Its Article 16 is very similar to Article 8 of the European Convention, " No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence..."

We shall wait and see what impact, if any, this case might have as to any views regarding the International Convention and undertaking surrogacy overseas in breach of Australian law.

California Court of Appeal dismisses surrogate's appeal in triplet case

The California Court of Appeal has dismissed an appeal by a surrogate who sought that she have custody of triplets. Her appeal sought to challenge the constitutional validity of laws governing surrogacy in California.

The Court of Appeal noted:

  1. the surrogate was legally represented before she signed the agreement.
  2. she was aware when signing of court cases that had the effect that when born the children would be children of the intended father.
  3. her then lawyer was of the view that the surrogate signed the agreement with a clear and informed understanding of the agreement.
  4. in the agreement, the surrogate agreed to freely and readily establish the parental relationship between the intended father and any child born out of the agreement.
When the father sought parentage of the triplets, the surrogate counterclaimed, seeking that the children were hers, that one child live with her (the one she said that the father sought to have aborted), that there be a trial about where the other children were to live and claiming that the father was 50, a postal worker who was deaf, caring for his elderly parents and incapable of caring for the children, and that he submit to DNA testing to determine if he were the genetic father of the children.

The court held that because the father complied with the requirements under California law to establish parenthood, the appeal was dismissed. The court found that under Californian law that the surrogacy agreement was enforceable, and should be enforced.

Using your late husband's sperm to become a mum

One of the trickier assignments I have received in my role as a fertility lawyer is when I get approached to act to help a woman become pregnant using her late husband's sperm. Luckily, I have not yet had to race off to court to get the preservation order- to remove the sperm from his body. Those cases are tricky, in part because the sperm has to be removed within 24 hours - and even when there is an order for removal and preservation (sometimes judges refuse to make those orders) there is no guarantee that the sperm will be available for use.

What I have now seen a number of times is when it is known that the husband is going to die, because he has cancer, and it is the wish of both parties that his sperm is going to be used to enable  his widow to become a mum.

Simply tricky stuff.

The how to guide goes like this:

1. Plan early


Leave it too late, and it may be impossible to do. If your husband has cancer, his sperm may not be viable to be used. The sooner his sperm is able to be stored, usually the better, but of course check with an expert fertility doctor. I have had a case where the husband's sperm was taken when he was under 18. This has its own challenges.

2. If in WA, get the sperm out of WA


Western Australia expressly prohibits - by regulation - the use of sperm in this type of case. It is possible to have a clinic interstate (but check in advance) undertake the treatment and to ship the sperm interstate.Reproductive Technology Council approval is not required. You may have to get a lawyer's letter to tell the WA clinic that it is lawful to ship without RTC approval.  If the husband consents to the transport and storage, all the better.

3. Have clearly expressed directions


Without having written directions, properly witnessed, by the husband consenting to the use, then the sperm may not be able be used in Australia. While it may be possible to export the sperm overseas, the cost goes up considerably.

It is important at this stage, no matter how urgent it may seem, to get good legal advice from a lawyer who knows what they are doing. The clearly expressed, written and witnessed direction should in my view not only be in the will but also in separate directions. If there is some issue about the validity of the will, or some issue about whether the topic can be covered in the will, at least the written directions, written in compliance with legal requirements should be sufficient.

4. After the death, have counselling


A requirement of regulatory approval is that the wife will need to have counselling, preferably from an experienced fertility counsellor, so that complex issues can be discussed appropriately. The counsellor will need to write a comprehensive report for the wife, and any regulatory authorities to use.

5. Get a lawyer's letter


In order to facilitate regulatory approval, it is helpful to have a letter from a lawyer pointing out for the benefit of the regulatory authority that all steps have been complied with and that  it is OK to provide treatment. Obviously a lawyer who has done this type of work before is the ideal. You don't want to have to pay to educate your lawyer!


6. Get regulatory approval


Before treatment can begin, there needs to be regulatory approval. This is either an ethics committee, or in Victoria both the ethics committee of the clinic plus Patient Review Panel approval. Clinics are risk averse and will want everything set out out for them clearly that there has been full compliance by you with regulatory and ethical issues.

7. Take a deep breath


Typically, approval will occur after the wife has had enough time to grieve and then wishes to proceed with a clear mind. This may be some months. Treatment should not happen before then.

8. Get started!


Good luck! If it doesn't work, surrogacy may be an option- but it is best to make sure that the paperwork at the beginning is properly prepared so that that option is still available.