Sunday, June 19, 2016

7 vital questions that need to be asked in any surrogacy journey

Recently I had the pleasure of seeing Karen Synesiou present at the Australian Surrogacy Conference in Brisbane. Karen is the founder of one of the world's oldest and largest surrogacy agencies, Center for Surrogate Parenting or CSP, based in Los Angeles. She has a direct, incisive manner. When I heard her present, I thought she nailed the issues.

The key to her presentation was setting out 7 points. I will set them out below with my commentary.

1. Have I asked the right questions to the right people?

What is implicit in this question is the second part- to be able to identify, first, that you are speaking with the right people, and that you are then asking them the right questions.

The simple fact of the matter is that there are sharks in the water when it comes to surrogacy- those who have dubious ethics, and give inaccurate advice, and whose aim is to make as much money as possible. It can be very hard for intended parents to distinguish who is genuine and who is not, and who is ethical and who is not.

One might think that the internet helps, but often it hinders. The internet allows anyone to post information, and set themselves up as experts in the field. If you are not careful, you  could be spending far too much money, and at worst commit a criminal offence and do not end up becoming a parent. The journey could involved unnecessary heartache and delay- which with careful planning could have been avoided.

In undertaking surrogacy, which is after all a legal process, as opposed to IVF, which is a medical process, there are a number of people who need to be spoken to:

  • the IVF doctor. Is surrogacy necessary? For heterosexual couples, single women or lesbian couples, is egg donation viable? If egg donation is viable, there is no point going that step further and going through the most complicated process of all.
  • the fertility counsellor. However the surrogacy journey might go, it is essential in my view to talk to someone who knows about the impact of the surrogacy journey on the intended parents and on the child. Too many intended parents focus on the process that results in the birth and transfer of parentage of the child, and not on the long term impact on them, on their child and on others, such as the surrogate. Getting to the birth and hand over of the child is not the end of the process, but merely the beginning.
  • the local lawyer. Too often Australian intended parents consider that they have to undertake international surrogacy- when often they can do local surrogacy for a fraction of the cost, and do so without the legal complications that come from going overseas. Even if the decision is made to go overseas (which might mean that criminal offences are committed- which can occur in 5 of Australia's 8 jurisdictions) - it is important to know about citizenship, and what rights the surrogate and the child has. Does the lawyer know what they are doing? Most lawyers, including most family lawyers, know little about surrogacy, let alone international surrogacy. Can the Australian lawyer suggest a lawyer overseas? How is parentage recognised by the law in Australia? Does the IVF doctor, the surrogacy agency or egg donor agency have a good reputation?
  • the egg donor agency. If going overseas, then very often an egg donor agency needs to be used. There are legal issues in Australia , and issues for the child. Will the child ever be able to find out who donated her eggs to enable him (or her) to exist? If not, why not? Is the egg donor agency reputable, long lasting and ethical?
  • the surrogacy agency. If going overseas, then with rare exception a surrogacy agency will be used. Their role varies from country to country. Again, what is their role, and how do they help? Is the surrogacy agency reputable, long lasting and ethical? Do not assume that the agency will be around forever. In most countries agencies are NOT regulated. It is very much a case of buyer beware.Obvious questions to ask are: does the surrogate obtain independent legal advice before signing up? Is she screened psychologically? What are the criteria for the agency's screening of a surrogate? Does she have control over her own body? Will we get to meet her? Can we have an ongoing relationship with her, for the sake of the child? How will I know if I have met a good surrogate? How will the surrogacy agency manage the process? How much are the agency's fees and what do they include? What is the agency's view on the right of women and the rights of children?
  • the lawyer in the foreign country. This person will often be first suggested by the agency. What type of work does this lawyer do? Does the lawyer overseas know the Australian lawyer? Can they work as a team? What is the process of undertaking surrogacy overseas? How does parentage become recognised overseas? Does the IVF doctor, the surrogacy agency or the egg donor have a good reputation?
  • if there is multiple citizenship- getting advice before starting from lawyers experienced in each of those countries about the likely impact for you and the child about what you propose to do. it is not unusual for Australian children to have 3 or 5 citizenships. This should all be checked out at the beginning. I often work with other international lawyers so that this issue can be properly address- at the beginning. If citizenship of the child is recognised in Australia, and the child goes with you back to, say, Italy (you also hold Italian citizenship), what might happen?
  • migration agent in Australia. Have you brought citizenship applications for children born through surrogacy before? What is your record? Why is using a migration agent advisable? Have you worked with the Australian lawyer/ overseas lawyer/ surrogacy agency before- and what is their reputation? How long does a citizenship application take? Should the application be made here or overseas?

2. Have I identified my true motivation for wanting to do this?

Be honest with yourself. Do you want to be parents? if you are simply wanting to be a parent to please someone else- for example to keep your marriage together, or to satisfy members of extended family- think again. 

3. What are the laws regarding surrogacy?

As I said, and I am thankful to Ukrainian surrogacy lawyer Dana Magdassi for this statement- IVF is a medical process; surrogacy is a legal process. It is essential that you get advice from a lawyer in Australia who knows what they're doing, and someone in the foreign country who knows what they're doing- and preferably they know each other and have worked with each other before.

Do not make the mistake of getting advice from the foreign lawyer only. If you are spending tens of thousands of dollars, and all your emotional energy, and taking between 18 months and four years of your life to make a baby, you owe it to yourselves, and going to a minimum of two jurisdictions, and especially to your child to get legal advice at both ends.

4. Can I control the risk factors in this situation?

When undertaking an international surrogacy journey, risk abounds- legal, medical and relationship. What are those risks, and can you control them?

5. Can we do something just as good with less risk involved?

What a brilliant question! As I said, surrogacy might not be needed- it might be egg donation. If surrogacy is needed, it might be able to be done locally- and not internationally. If done internationally, is the country/agency/clinic chosen the right one- or there is somewhere else that is less risky?

6. What is the fallout if the risk becomes reality?

Sure the lawyers (and others) have warned me if it goes wrong, but what happens if it does? An example is a surrogate who lives overseas who might be coming to Australia to give birth. What if, for medical or other reasons she can't? If she has to give birth over there, what does that mean? Will the child be trapped? Who will be recognised as parents?

7. Can you put it in writing?

When asking a lawyer- get their advice put in writing. The reason is obvious!

Wednesday, June 15, 2016

Canadian Fertility and Andrology Society webinar

This morning at 7am Brisbane time (5pm yesterday Toronto time) I had the privilege of speaking in a webinar to the Canadian equivalent to the Fertility Society of Australia- the Canadian Fertility and Andrology Society- about Australian fertility and surrogacy law.

I told the attendees that demand by Australian intended parents for overseas egg donors was likely to remain, and that with or without the proposed reforms by the House of Representatives surrogacy inquiry, demand by Australian intended parents for Canadian surrogates is likely to increase.

Thank you to Sara Cohen for organising, and to Cindy Wasser for asking a couple of curly questions!

Bionews article about Australian surrogacy reform failure

Today Bionews, one of the world's leading sites dealing with IVF and all related issues, published an opinion piece by me saying that the House of Representatives surrogacy inquiry had squibbed reform, by failing to recommend commercial surrogacy, because in failing to bite the bullet would mean that Australia remained the largest exporter of intended parents for surrogacy.

Beware the surrogacy sharks in the water

A problem with surrogacy, seen time and time again, is that when there is a combination of people desperate to have children, and who are perceived to have money, then there is a school of sharks in the water trying to rip those people off.

Anyone who undertakes surrogacy has to take care with who they are dealing with.

If this message weren't clear enough, it was driven home again to me today with news that a Nigerian man posed as a surrogacy lawyer in the US, copying material from a good colleague's website - and by copying I mean literally that- copying and pasting- and then asking for prospective clients for money.

Thankfully, after his scam was exposed this morning, colleagues identified the source of the website, and within hours the site was pulled down.

Not everyone is so lucky. Some years ago I had clients who had not taken enough care in identifying a surrogacy agency in the US. I am not criticising them- far from it, but just illustrating that with the right information the chances of something going wrong are a lot lower (and without that information, the risks of something going wrong are a lot higher). They went to a lawyer who operated an agency there- someone you might think was a fairly safe bet. They paid over tens of thousands of dollars. The lawyer did not have a trust account. The money was quickly gone, as was the lawyer. Seven years later,  the lawyer has been arrested, but the money remains gone. I will never forget the anguish of those clients- who then had to start the surrogacy journey all over again, from scratch- without that hard earned money available to them.

When undertaking surrogacy overseas- be careful. Only work with ethical people. If its seems too good to be true, it probably is. Ask others. And above all ask those who know what the industry is like- people like me, who often can give you the low down on particular operators and how surrogacy works in practice, not spin.

Monday, May 23, 2016

Harrington Family Lawyers are awarded the Equity and Diversity Award by Queensland Law Society

On Thursday night I had the privilege to receive on behalf of my firm, Harrington Family Lawyers, an equity and diversity award from the Queensland Law Society.

Three awards were handed out by the Society- Large firm- to Clayton Utz (which recognised that it had LGBTIQ staff members and decided they should be made to feel welcome), Small firm- Miller Harris in Cairns (as 40% of their staff are on flexible work arrangements) and Harrington Family Lawyers- for the small legal practice initiative.

I had previously been told by President Bill Potts:

"The Society found your firm's leadership of the profession in promoting the rights of women and of LGBTI people particularly impressive. In particular, your penning of the Australian Gay and Lesbian Law Blog represents strong and pioneering commitment to the rights of and interests of LGBTI people in Australia ( and doubtless, internationally)."

At the awards ceremony, Bill Potts said that I was "hardworking" and an "ornament".

I said that I had to change my speech in light of events earlier that day. I had been told by a trans woman that allegations were being made of her (i.e. place a child at risk simply because of who she was) that took me back to 1992, when I acted for lesbian mothers, who were often discriminated against, due to their sexuality. It seemed that at some level we had not moved on after all these years.

I also said that when I took my oath of office as a solicitor all those years ago, I was determined to ensure that the law served others- so that the potential of the law- i.e. that all were equal under the law, was able to be met.

Bill Potts said that he hoped for the day that equity and diversity awards were not necessary, because society and the practice of law is fair.

The award comes at a time that I have been nominated for the LGBTIQ Activist of the Year in Queensland. Who is chosen as Activist is based on voting. I am the current Activist of the year.

It was great to help! UK man overturns ban on single parents via surrogacy

England's top family law judge has overturned a law that said only  couples could undertake surrogacy. Sir James Munby, the President of the England and Wales High Court Family Division, has made a formal declaration that UK law discriminates against single parents with children born through surrogacy and is incompatible with their human rights.

The team at Natalie Gamble and Associates, who acted for the father,   (working with leading counsel Elizabeth Isaacs QC and Adem Muzaffer) has been fighting this important case and were delighted at the ruling.

 I helped in the case.

Some months ago, my friend and colleague Natalie Gamble, one of the leading UK surrogacy lawyers, sought my help in the form of expert evidence as to what Australian surrogacy law provided. I willingly did so.

Natalie Gamble also received help from other expert surrogacy lawyers- Richard Vaughn in the US and Sara Cohen in Canada, who gave evidence about surrogacy laws there.

It is delightful that my evidence and that of my colleagues helped obtain this outcome. The reality is that single intended parents are often discriminated against, for no apparent reason. In Australia, that discrimination is seen in the ACT, South Australia and, for men, in Western Australia.

The case concerns a British biological father of a 21 month old boy known as ‘Z’, who was born through a US surrogacy arrangement and lives with his single father in the UK. Last September the High Court ruled that it could not grant the father a UK parental order (the order needed to extinguish the responsibilities of the surrogate and to issue a UK birth certificate for Z), because UK surrogacy law only allows couples, and not single parents, to apply. The court ruled that the US surrogate who carried Z (who lives in the USA, is not his biological mother and has no legal status there) has sole decision-making rights in the UK. Z was made a ward of court, which means the court safeguards his welfare and makes decisions about his care.

The President of the Family Division has now declared that the law is incompatible with the father’s and the child’s human rights, and discriminates against them. In an unprecedented move, the Secretary of State for Health decided not to oppose the father’s application, conceding that UK law breached human rights legislation and consenting to the court making a declaration of incompatibility. Although only Parliament can change the law, declarations of incompatibility under the Human Rights Act are unusual and carry significant weight: only 20 final declarations have ever been made, and all but one have prompted the law being changed.  However, the government has not yet said whether it plans to push forward reform.
Responding to the judgment, Z’s father said: “I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.”

Elizabeth Isaacs QC, his barrister, said: “Declarations of incompatibility are rarely made, so this is a very significant decision. Having consented to the declaration, there is no reason why the government should not take swift action to change the law. We hope that the law will be changed to enable a parental order to be granted for Z as soon as possible.”

MP's: no to commercial surrogacy; make it harder to go overseas

The Federal Parliamentary inquiry has concluded that commercial surrogacy in Australia continue to be banned, that there be national, non-discriminatory surrogacy laws, and that it be harder for Australians to undertake surrogacy in developing countries.

The inquiry, by the House of Representatives Select Committee on Social Policy and Legal Affairs, chaired by Nationals MP George Christensen, raised concerns about the potential for exploitation of both surrogates and children, and questioned whether birth certificates should issue that included the name of the surrogate and any donors of genetic material, as well as that of the parents.

The Committee has recognised that Australians will continue to access surrogacy overseas. It is likely that, with continued restrictions on surrogacy in Australia, that there will remain a shortage of available surrogates in Australia, meaning that if anything there will continue to be a growth in the number of Australians accessing commercial surrogacy overseas. However, the recommendations of the inquiry are to make it harder for Australians to access surrogacy overseas, by Australian intended parents having to prove to Australian officials that they have not broken the law in Australia or overseas before they can bring their children into Australia. Whether this will lead to children being trapped overseas remains to be seen.

The full list of recommendations is:

Recommendation 1
The Committee recommends that the practice of commercial surrogacy remain illegal in Australia.
Recommendation 2
The Committee recommends that the Australian Government, in conjunction with the Council of Australian Governments, consider the development of a model national law that facilitates altruistic surrogacy in Australia. The model law should have regard to the following four guiding principles:
·      that the best interests of the child should be protected (including the child’s safety and well-being and the child’s right to know about their origins), 

·      that the surrogate mother is able to make a free and informed decision about whether to act as a surrogate, 

·      that sufficient regulatory protections are in place to protect the surrogate mother from exploitation, and 

·      that there is legal clarity about the parent-child relationships that result from the arrangement.

Recommendation 3 
The Committee recommends that the Attorney-General request the Australian Law Reform Commission (ALRC) to conduct a 12-month inquiry into the surrogacy laws of Australian States and Territories, with a view to developing a model national law on altruistic surrogacy. The Attorney-General should request that the ALRC consider: 

·      first and foremost, the best interests of the child, 

·      previous reviews of Australian surrogacy laws, including the 2009 report of the Standing Committee on Attorneys-General and the 2013 Family Law Council report on Parentage and the Family Law Act 1975,
·      the need for State and Territory laws to be non-discriminatory, 

·      the need for mandatory, independent and in-person counselling for all parties before entering into a surrogacy arrangement, during pregnancy, after the birth, and at relinquishment, 

·      the need for background checks, medical and psychological screening, and independent legal advice for all parties entering into a surrogacy arrangement, 

·      the need for parties to enter into a non-binding surrogacy agreement which sets out shared expectations of all parties, including dispute resolution processes, and which ensures that parties respect the birth mother's right to make decisions about her own health and that of the child, 

·      the processes by which parental responsibility is transferred from the birth mother to intended parents, and when this transfer should take place, 

·      the need for adequate reimbursement for the birth mother for legal, medical and other expenses incurred as a consequence of the surrogacy, 

·      the need for a closed register of surrogates and intended parents, to be administered by a Government body, access to which may be granted following background checks, and medical and psychological screening, and 

·      whether States and Territories should keep standardised statistical information on families formed through surrogacy to enable long- term studies of surrogacy's effect on families. 

Recommendation 4 
The Committee recommends that the Attorney-General request that the Australian Law Reform Commission consider the issue of birth certificates as part of its inquiry as set out in Recommendation 3. In particular, the ALRC should consider whether a child's birth certificate should contain information on all gestational, genetic and intended parents, including a record that the child was born as a result of a surrogacy arrangement 

Recommendation 5  The Committee recommends that, within six months of the proposed report of the Australian Law Reform Commission being presented to the Attorney-General, the Attorney-General should request that the Council of Australian Governments (COAG) commit to the following actions:
·      consultation with all Australian States and Territories in relation to the proposed model, and 

·      the development of national uniform legislation on altruistic surrogacy to be implemented in all Australian States and Territories. 
The Committee considers that the deliberations by COAG should not exceed 12 months.

Recommendation 6 
The Committee recommends that the Australian Government develop a website that provides advice and information for Australians considering domestic altruistic surrogacy. The website should include: 

·      clear advice on the role of Australian Government support and service provision for intended parents, surrogates and children including Medicare, social security & welfare payments, child support, paid parental leave, 

·      clear advice on surrogacy legislation in each Australian State and  Territory, and 

·        clear advice on the support and services funded and provided for by each Australian State and Territory including relevant health, counselling and legal services available.
Recommendation 7 
The Committee recommends that the Australian Government establish an interdepartmental taskforce (which should include eminent jurists with relevant expertise) to report in 12 months on ways to address the situation of Australians who choose enter into offshore surrogacy arrangements, with respect to:
·      protecting the rights of the child, particularly their rights to be free from exploitation, to know their genetic heritage, to know the circumstances of their birth, and to have an ongoing relationship with their birth mother and any siblings or genetic donor/s, 

·      ensuring birth mothers give their free and informed consent and reducing the likelihood that they face exploitation,
·      ensuring that Australians who enter into offshore surrogacy arrangements meet their responsibility to act in the best interest of all of their children, and 

·      considering whether it should be unlawful to engage in offshore surrogacy in any overseas jurisdiction where commercial surrogacy is prohibited. 
While not condoning Australians' use of offshore surrogacy, the aim of the taskforce should be to ensure that where the regulatory, economic or social conditions in a particular jurisdiction give rise to an increased risk of exploitation or rights violations, Australians entering into or facilitating surrogacy arrangements in that jurisdiction are made aware of those risks, and are subject to a more stringent investigative process to ensure that the rights of the birth mother and the child have not been infringed. 

Recommendation 8 
The Committee recommends that the interdepartmental taskforce should undertake a systematic audit of surrogacy destination countries to assess the extent to which surrogacy practices in these countries meet the requirements laid out in recommendation 3. The Committee considers that this audit will assist in informing the Australian Government’s response to the Australians who choose to enter into offshore surrogacy arrangements. 

Recommendation 9 
The Committee recommends that the Australian Government introduce legislation to amend the Migration Act 1958 such that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child. 

Recommendation 10 
The Committee recommends that the Australian Government, in its representations to the Experts' Group on Parentage/Surrogacy at the Permanent Bureau of the Hague Conference on Private International Law should prioritise:
·      the rights of the child, particularly their right to know their genetic heritage, to know the circumstances of their birth, and to have ongoing relationships with their birth mother and any siblings or genetic donor/s,
·      the rights of surrogate mothers to be free from exploitation, and to only engage in surrogacy arrangements to which they give their free and free informed consent, and 

·      the development of an international convention dealing with the regulation of parentage and surrogacy.