Tuesday, March 31, 2015

Hague moves toward an international convention

When babies move between countries, at times the rules that apply appear to be inconsistent, if any. Each country seems to be making up their own rules, which are often inconsistent with other countries' rules.

For over 100 years a number of countries, including Australia, have met at The Hague in the Netherlands and agreed to conventions covering international rules, including the Hague Inter-country Adoption Convention and the Hague Child Abduction Convention, to name two. The organisation at The Hague  is called The Hague Conference on Private International Law.

For some time now, as I have blogged before, The Hague Conference has been looking at the possibility of a Hague Convention concerning private international arrangements for children, including international surrogacy arrangements.

It looks as though there will be the bare bones version of a convention early next year, after The Hague Conference agreed to convene a group of experts early next year to look at private international rules concerning children, including international surrogacy arrangements.The group should be geographically representative and should be appointed in consultation with member nations.

When I was asked by any number of media following the Baby Gammy saga about how to prevent it happening again, I said that there were three ways:

  1. Australia allowing compensated surrogacy under a national system, so that we were not exporting our problems around the world. Australians generally would rather undertake surrogacy at home not abroad, if it is available.
  2. Australia seeking to persuade other countries to put in place appropriate standards for IVF and surrogacy, to minimise the possibility of trafficking and exploitation.
  3. There being a sensible Hague Convention.
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Hopefully,  this step by The Hague Conference will bring about the last of these.

Wednesday, March 25, 2015

Surrogacy in Canada presentation

Last week I had the pleasure of hosting visiting Canadian surrogacy lawyer Nicolle Kopping-Pavars in two surrogacy/fertility presentations in Sydney.

The first was to the NSW branch of ANZICA, the Australia and New Zealand Infertility Counsellors Association. Nicolle gave an overview of surrogacy in Canada. I gave an update of surrogacy and fertility law in NSW.

The second was to a public seminar about surrogacy in Canada. Surrogacy in Canada is an option for those from NSW, Qld and the ACT. In those jurisdictions it is an offence to enter into or to offer to enter into a commercial surrogacy arrangement wherever it might be, if you are ordinarily resident in those places (or in the case of NSW as an alternative, if you are domiciled there).

Surrogacy in Canada is an option because it is also altruistic, i.e.,  a fee is not paid to the surrogate. So far so good. Treatment does not need to occur in Canada. For example, an embryo might be able to be created in Australia and exported to Canada for implantation there.

Another possibility, if donors are required, is to have the embryos created in California or Nevada, with implantation there.

There are also issues from a legal viewpoint that the surrogacy contract in Canada does not run foul of Australian law. It is essential therefore that the whole process is managed from both ends- both in Australia and Canada- by experienced fertility lawyers who know what they are doing, to minimise risk.

Monday, March 9, 2015

Brisbane donor seminar

On Saturday morning I had the pleasure of presenting to a seminar in Brisbane about egg, sperm and embryo donation. The seminar, organised by Brisbane fertility counsellor Antonia Lockitch, was for those who either wanted to be donors, or those intended parents who may have to rely on donors to become parents.

One of the curliest questions I was asked was about why I do not recommend the use of known donors as a general rule- because it can be very complicated, there are few if any legal protections, and with bad luck the matter can end up in the Family Law Courts.

Good on Antonia for running the seminar. Information as Benjamin Franklin said, is power. The more  information that intended parents and prospective donors have, the better!



Visit to Canberra Fertility Clinic

In a jam packed trip to Canberra last week for the surrogacy roundtable, I managed to cram in a visit to the Canberra Fertility Clinic, courtesy of Dr Martyn Stafford-Bell.

Dr Stafford-Bell had earlier given powerful evidence to the surrogacy roundtable about how in Australia we have a positive experience for surrogacy, and we should change the laws to enable Australian women to be compensated for surrogacy, when everyone else in the process is paid, including doctors, counsellors and lawyers. Why shouldn't the person at the centre of the process be paid, and properly compensated for her efforts?

Canberra Fertility Clinic are one of the pioneers of surrogacy in Australia, putting in place procedures, such as an Ethics Committee, mandatory counselling and legal advice, to make sure that the process is thorough and a positive experience.

I talked with staff about various surrogacy and fertility law issues, and then had the opportunity to tour the lab.

I was amazed at the latest technological innovation, which helps keep Australia's IVF labs at the forefront of international developments. Now when the cells are in the incubator, there is above each cell a camera taking shots of the cell every 10 seconds as a form of slow mo. It is then possible to look at the cells as they are dividing and developing. Extraordinary! I thought I was  the luckiest man alive to see such magic. For technicians this is often the job- the mundane, quotidian existence- but for someone who is not witnessing this every day, it is extraordinary to see life itself forming and growing.

When I was at Canberra Fertility Centre, I pondered about how the laws of different States impacted on their business and the lives of those who want to have children:


  • While Canberra Fertility Clinic has acknowledged expertise in surrogacy, it is in effect unable to help intended parents from Victoria (just over 3 hours drive away), SA or WA because the laws of those States deem that the only IVF clinics who can help are the IVF clinics in those States. Nuts! Are we one country or a collection of 19th century independent countries? One country courtesy of the Australian taxpayer through the Medicare system pays for these clinics. One country (largely) through the National Health and Medical Research Council licensing requirements for these clinics sets out their licensing rules, but those who want to have children cannot choose where they can go for IVF treatment. Why isn't there freedom of choice?
  • Twenty or so minutes drive away in NSW, intended parents do not have these restrictions. They can seek medical treatment wherever in the world they like.
  • In the ACT only couples can seek parenthood through surrogacy. Singles are banned. There are no such restrictions in NSW.
  • In the ACT the surrogate must be part of a couple. There cannot be a single surrogate. There are no such restrictions in NSW.
  • In the ACT it is a criminal offence to engage in commercial surrogacy overseas- but in Victoria it is not. 

Sunday, March 8, 2015

Update on House of Reps surrogacy roundtable



On Thursday I was in Canberra, giving evidence at the surrogacy roundtable of the House Of Representatives Standing Committee on Social Policy and Legal Affairs.

There were about 20 witnesses, ranging from the Chief Justice of the Family Court, Diana Bryant, and the Chief Judge of the Federal Circuit Court, John Pascoe (in their personal capacities), to legal and social academics researching surrogacy, various advocacy groups, fertility counsellors, one of the pioneers of surrogacy in Australia, Dr Martyn Stafford-Bell, and me.

Chief Justice Bryant stated in effect that the laws which prohibit some Australians from undertaking commercial surrogacy overseas ought to go. She said that it was clear that State authorities were not prosecuting, even when many people from those States went overseas for commercial surrogacy- either the law should be enforced or there should not be laws on point- as it made a mockery of the law for there to be laws which were not enforced.

Chief Judge Pascoe said that it was a human right for all of us to know where we came from. This was int he context of surrogacy and egg and sperm donation. Many children will not know their surrogate and will not know their genetic origin.

One of Australia's most experienced infertility counsellors, Miranda Montrone, representing the Australian and New Zealand Infertility Counsellors Association, said that "We do it well in this country." She saw surrogacy arrangements here as being in a loving context, where children grew up secure, knowing who was their surrogate and broader family.

In answering criticism of adults conceived through anonymous egg and sperm donation, Louise Johnson and Kate Bourne from the Victorian Assisted Reproductive Treatment Authority said that Australian practices now were quite clear: the child has the right on turning 18 to find out his or her genetic origin. Kate Bourne also talked of helping adults conceived from donations to understand their place int he world.

Sam Everingham from Surrogacy Australia called for there to be comprehensive reform, to reflect the reality of the thousands of Australians who have undertaken surrogacy overseas. This call was backed up by Professor Jenni Millbank and Dr Stafford-Bell.

While I agreed with the thrust of those comments, I also called for national laws concerning surrogacy, so that we do not have discrimination, that intended parents are free to choose medical treatment throughout Australia, and that orders made in one State mean that the intended parents are recognised in the child's State of birth, and not the system that we have now, which is hit or miss. The example I gave was of the couple in Midge Point, Queensland. The wife's sister in Adelaide was prepared to be a surrogate. If the child were conceived and born, an order would be made in the Childrens Court of Queensland.

That order would recognise the parents as the parents under the Family Law Act, but would not recognise the parents as parents for the SA birth registry. Instead they would have to get a new entry opened in Queensland (a very unlikely prospect because the child was nor in SA), close the SA entry, then alter the Queensland entry. I said that if the surrogate were in Melbourne, then the birth entry could be altered, but only after, following laws passed in Victoria in October, by obtaining a registration order from the Victorian County Court. This process would add about another $10,000 to the bill.

It is unclear what action the committee might take, but a possible outcome is a formal Parliamentary inquiry, a step championed last year by both the Chief Justice and the Chief Judge.

Monday, March 2, 2015

House of Reps committee informal inquiry about surrogacy

The House of Representatives standing committee on Social Policy and Legal Affairs is currently undertaking an informal inquiry, called a roundtable, about surrogacy.

The Committee, which is chaired by George Christensen (Nationals, Dawson, Qld) took evidence last week from Government departments including Immigration and Foreign Affairs and Trade.

This week on Thursday I and others including Louise Johnson and Kate Bourne from the Victorian Assisted Reproductive Treatment Authority, Sam Everingham from Surrogacy Australia and Miranda Montrone from the fertility counsellors organisation, will be addressing the committee. The session is open to the public, but I understand that there are limited spaces available.

The reality about surrogacy is that it is becoming more and more common as people desperate to have children use the option of last resort. In considering where my clients have come from, and who is a member of the committee, I discovered that of the 10 members of the committee, I have had surrogacy clients from 8 and possibly 9 of the electorates. I can be certain that the only MP who hasn't had a surrogacy client of mine in their electorate is Dr Sharman Stone, from northern rural Victoria.

Move to amend surrogacy laws in South Australia

A private member's bill before the SA upper house last week came on for a third reading. the member moving the bill, Liberal MLC John Dawkins has highlighted that there will likely be further amendments.

The bill proposes that the re be a register of surrogates in South Australia. This is because of the difficulty of being able to locate surrogates. In comments last week, Mr Dawkins made plain that the register was not intended to stop others being surrogates, but to make it easier to locate surrogates.

Another requirement of the bill is that overseas surrogacy arrangements would be scrutinised by the State's Attorney-General.

The bill does not intend to remove discrimination in SA that in effect currently seeks to prevent gay and lesbian couples, and single intended parents from pursuing surrogacy.

The only clinic that currently offers surrogacy in South Australia, Repromed, requires that the intended parents and the surrogate know each other for two years before they commence counselling.

The full Hansard of Mr Dawkins' speech is here:

LEGISLATIVE COUNCIL Wednesday, 25 February 2015
FAMILY RELATIONSHIPS (SURROGACY) AMENDMENT BILL
Committee Stage
In committee. Clause 1.
The Hon. J.S.L. DAWKINS: I would take this opportunity today to respond to questions that were raised during the second reading debate on this bill in December 2014. I indicated to members of this committee by way of email that that would be the purpose of the debate today. That allows members to further consider my response. I am hoping to proceed with the further stages of the committee in the very near future, but I will work with members on that and keep them informed in the normal manner. I hope the committee will bear with me as I deal with the responses to those questions. The first question is from the Hon. Tung Ngo, and I will quote the member:
My question is whether surrogacy should only be recognised if it is sought through this register. It would seem to me that doing this would clear up any potential future ambiguity over whether a particular agreement constituted legal surrogacy. This may mean that those surrogate mothers who only choose to be a surrogate for a specific person they may trust would need specific recognition within the register.
My answer to this question is no. The intention of this bill is to provide a register to assist potential parents who may be looking for a surrogate once they have been advised that they are unable to conceive naturally or otherwise; therefore my intention is to continue to allow the current practice whereby suitable surrogates are sourced by the prospective parents without reference to any register, whether these surrogates be friends or otherwise who are not on the register. I continue with the Hon. Tung Ngo's questions:
Another question I would like a response to is whether this amendment bill is effectively setting up an industry, whether altruistic or not, which needs adequate safeguards built in to provide certain protections for all parties involved. Even if a surrogate acts out of altruism, she would still expect that the necessary expense she has incurred throughout pregnancy would be accounted for by the commissioning parents. If this does not occur, what protections are available in this bill? What if there are unexpected complications in the pregnancy, and this changes the attitudes of commissioning parents? Do these matters become a purely civil issue with no protections available to the surrogate mother?
My response is that this amendment bill is not in any way setting up an industry or commercialising surrogacy in any form. My intention is to simply make accessing surrogacy easier for everyday South Australians and allow reasonable recompense to surrogates for the expenses they incur during the process. However, after recent contact from a constituent, on which I will expand shortly, I am considering some small amendments to clause 7(5) of the bill. A further question from the Hon. Tung Ngo:
Likewise, Mr President, as a man I will never be able to understand the emotional bond that develops between a mother and her baby during pregnancy, but I can foresee a scenario w h ere surrogate mothers who have previously come to an agreement with commissioning parents then decide that they want to keep the baby. How is this issue dealt with? I would also like to know what information will be available to women who are considering placing themselves on the register. It is a very big decision to make.
As alluded to earlier, in addition to the Hon. Mr Ngo speaking of his concerns on this matter, I have recently had a constituent visit me to discuss this very issue, which she herself has faced firsthand. I do not wish to mention the constituent's name on the record, but what I will say is that this mother has accessed surrogacy using the current legislation in South Australia and provided me with a unique perspective about this law in action, which I feel would also be of
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benefit to the committee. The constituent concerned has written her story in her own words and I quote:
Unfortunately I am a recurrent miscarriage patient primarily due to an autoimmune condition which causes my blood to clot. After many years of infertility, failed IV F cycles and heartache, surrogacy was the best way for us to finally realise our dream of having a genetic child. My husband and I are very grateful that the existing laws in South Australia allowed us to engage in altruistic surrogacy locally, which ultimately resulted in the birth of our darling son last year.
Initially we had three attempts with a surrogate in California in the United States. Although surrogacy is a very well trodden path in the States, it was extremely expensive, di fficul t and for one reason or another, it didn't work for us. Our agent was about to 'match' (as is the terminology in the States) us with a new surrogate for a fourth attempt when everything changed and we decided to take a new direction. A local lady unexpectedly came forward and together we excitedly decided to try and have a baby through Repromed here in Adelaide using embryos we had already created and frozen. We were so incredibly lucky that it worked first try.
One of the main reasons we went overseas initially was that we never thought we'd find someone at home willing to be our gestational surrogate, but also because local surrogacy is so uncommon in South Australia. Most people mistakenly believe that it's not even legal! In all honesty, while the process was lengthy and at times difficult, on the whole we actually found the process, especially the steps that needed to be taken to establish a 'recognised surrogacy arrangement' at the beginning of our journey, easier to navigate than we imagined. We were very fortunate that we were able to pursue surrogacy locally for many reasonsfor example, it mean we could be involved in, and very much be a part of, the pregnancy.
Along the way we found out that there actually are women out there that are willing to be gestational surrogates, indeed it is something they WANT to do as a way of 'paying it forward', by giving the ultimate gift of helping to create a family. We also have excellent fertility treatment available to us here in South Australia. So for these reasons and others, I feel there is so much potential for there to be more and m ore altruistic surrogacy arrang ements here in South Australia in the future and I certainly hope that is the case.
I do thank the lady concerned for the time she has given to me and particularly for allowing me to read that particularly unique perspective into the record. However, this constituent subsequently had legal issues similar to those mentioned or foreshadowed by the Hon. Mr Ngo. The current legislation does not provide a legal circuit breaker, so to speak, in those types of situations, and South Australia is not unique in the commonwealth from this perspective. The use of the legal system, often expensive, is the only way to resolve these issues, often having to grant a parenting order to resolve the case.
After hearing the Hon. Mr Ngo's concerns and listening to the issues faced by the constituent who approached me, I am considering amendments to the bill that will provide some kind of option for the parents and/or surrogate to utilise when these cases arise. I would now like to move on to my responses to questions from the Hon. Ian Hunter. His first questions was: 'In practice, does the bill exclude same-sex couples?' The answer to that question is that the current law does not include provisions for access by same-sex couples, and my bill does not seek to alter that in any way.
The second question from the Hon. Mr Hunter was: 'In practice, does the bill exclude single women?' Again, the answer to that question is that current law does not include provisions for access by single mothers and my bill does not seek to alter that in any way.
The third question from the Hon. Mr Hunter was: 'What criteria, under the bill, would the minister impose on restricting the access to various groups under the framework proposed?' Any criteria imposed by the minister would be up to the Hon. Mr Hunter's cabinet colleague or any subsequent responsible minister in that position. The bill calls on the minister to develop a framework via regulations to regulate the usage of the agreements, and I would suggest that, if this bill is passed by both houses and becomes law, the Hon. Mr Hunter and all other honourable members lobby the responsible minster for what they would like and not like to see included in the proposed framework.
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Unfortunately, as a member of the opposition I do not receive the resources or expert assistance that is far more readily available to members of Her Majesty's government and, therefore, for that reason and reasons relating to ensuring the framework is dynamic and readily kept up to date with community expectations, I have considered it appropriate to leave this framework to be developed by the minister and implemented by regulation.
A further question from the Hon. Mr Hunter was: 'Could couples who engage in overseas surrogacy be subject to an offence as outlined in section 10H(22)? If so, what is the intent of legislating for such an offence? How does the incorporation of the offence balance with parliament's desire to legislate in the best interests of a child? Does this bill work to deny appropriate legal recognition of parentage to children born through overseas surrogacy?'
From the outset of this answer I would like to put on the record that it is not my intention to create an offence for individuals who engage in overseas surrogacy; therefore, whether someone has committed an offence or not when procuring a commercial surrogacy agreement overseas depends on whether an individual's action has, by law, created a territorial nexus and, therefore, enables their actions to come under South Australian law.
Like all laws in South Australia if a territorial nexus (which I will explain further for the council shortly) exists then when you breach a law of the state in another jurisdiction you can, depending on the facts of the case which have to satisfy very specific criteria, be prosecuted for that offence in South Australia. However, in the case of overseas surrogacy I am advised that this is very unlikely as the individual facts of the case and the location of the offence itself have to satisfy the aforementioned specific criteria which is laid out in the legislation.
Therefore, unless a case occurred in which someone procuring a commercial surrogacy agreement overseas somehow satisfied the requirements of the necessary territorial nexus (which as I said earlier is very much dependent on the individual case and circumstances) they could not be prosecuted for an offence under this bill. Therefore, for someone to be prosecuted for an offence under clause 6 of the bill, their actions would first have to satisfy section 5G of the Criminal Law Consolidation Act 1935 (South Australia), specifically that there was a necessary territorial nexus.
As honourable members would be aware, a territorial nexus exists for all laws in South Australia, not just surrogacy, so whilst a prosecution might be possible if the specifics of the case satisfies 5G of the Criminal Law Consolidation Act, in most cases it would be most unlikely as it would be incredibly hard to prove.
Whilst I cannot provide the council with a simple yes or no answer in this case, I am advised that it appears as though prosecution would be highly unlikely if international commercial surrogacy is procured in a legitimate fashion and wholly conducted and commissioned overseas. The reasoning for such a provision is simply to help prevent baby Gammy cases from eventuating or, if they do, provide a domestic avenue for prosecution and to keep the current status of altruistic surrogacy being the only form of legal surrogacy in this state.
It is in no way the intention of this bill to deny appropriate legal recognition of the parentage of a child born through overseas surrogacy. If the procurement of the overseas surrogacy agreement is completed in accordance with the law, the reasoning behind these provisions is to solely protect the interests of children born through the use of this bill.
In conclusion, it is still my wish to proceed through the remaining stages of this bill in the near future. I will certainly keep members informed as I develop the possible amendments that I have foreshadowed today. As a humble member of the opposition, I am very grateful to parliamentary counsel and to Brad Vermeer of my staff for the commitment to making this bill as good as possible, and we will take reasonable suggestions, in due course, as we develop the possible amendments.
I am grateful to members of this chamber for their support and their interest in this legislation. I have responded to those who put questions on the parliamentary record late last
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year. Other than one or two members of the community, there have not been any other queries since that time.
This is something that I believe in very strongly. It is certainly not perfect. I will do everything I can in the next few weeks to bring some amendments in that may help us to further improve this legislation. I do repeat again what I said late last year and that is that if there are members with suggestionsand I know that the Hon. Tammy Franks has given me great notice that she will be developing an amendmentbut if there are other members who have concerns or wish to do something along that line, I will be very grateful if they would let me know and give me notice at the earliest point.
Progress reported; committee to sit again.