Thursday, February 4, 2016

US to allow the sky's the limit for donors

From the US today comes news that the American Society for Reproductive Medicine has settled a court case brought by disgruntled egg donors over a cap on the amount that they might get paid.

The ASRM has agreed to remove the caps on payments. The deal still needs the approval of a court. Currently the amount that egg donors can be paid in the US varies, by virtue of the ASRM guidelines, to be between US$5,000 and US$10,000. The donors claimed that the caps were in effect an unlawful cartel.

This step is a retrograde one. No doubt the ASRM felt that legally it did all it could. The removal of a cap opens the possibility of exploitation of donors,  with all that entails. I say possibility, because we really don't know what might happen. Donors might be paid a huge new amount, or the market might work- and the amounts may not vary much.

A likely impact is that unpaid donors in the US asre now going to be as rare as hen's teeth. Therefore those (unpaid) donors in the US whose frozen eggs are exported to Australia for IVF here are likely not to donate- making the shortage of donors here more acute, and with the outcome that more Australians will go overseas for egg donation.

Legislation to cap payments to donors in the US is clearly needed. The sooner, the better.

Surrogacy inquiry gets under way

The long awaited Federal Parliamentary surrogacy inquiry gets under way today, with reports saying that Chief Judge John Pascoe of the Federal Circuit Court of Australia will give evidence.

His Honour is about to travel overseas, to be Australia's representative in a working group at The Hague, to work out what is required for a likely convention to do with the international recognition of parent/child relationships, including international surrogacy arrangements.

Submissions to the Parliamentary Inquiry close today week, 11 February.

I will be making a submission. In line with Parliamentary privilege, unfortunately I cannot  post my submission on my blog until it has been published by the Parliament.

However, it is obvious that something has to give. We simply cannot keep continuing like Canute trying to hold back the tide and pretend that Australians don't go overseas in droves for surrogacy- despite laws in several States making it an offence to do so.

What I see needs to occur is quite simple:

  • enable the payment of surrogates and donors here, subject to a cap, so as to avoid exploitation
  • have a national model, with consistent laws, so that there is a seamless national approach
  • have a cascading approach for those going overseas- both before they go and after they come back.
The simple steps of having a national approach will greatly decrease demand for those wanting to undertake surrogacy overseas.

There will always be some intended parents who will nevertheless want to go overseas.

The cascading approach- for those who would still want to go overseas

Any regulation of those who go overseas is with the limitation of what happens before any Hague Convention comes into effect, or concerning those countries that do not sign up.

Most of us have great confidence that surrogates, donors, intended parents and above all, the children,. are not exploited in some countries, such as New Zealand, US, Canada and the UK. For those who wish to undertake surrogacy in these places, there should not be any barriers for those who wish to bring their babies back to Australia- provided that citizenship issues have been dealt with, there should be automatic recognition of the parent-child relationship.

For those who don't go to those countries, to undertake surrogacy overseas would be a  two stage process:

  • before they go- get approval from a court here. It would be assumed that for the purposes of any guidelines that commercial surrogacy would be appropriate. The purpose of approval would be to ensure that everything was above board, and in particular that it is clear that there is a need for surrogacy, no exploitation of the surrogate or donor, and that the child will have the opportunity of knowing who his or her donor might be- after the child turns 18.
  • then either get a court order from the overseas country; OR
  • get get a court order from a court here.
It is not a requirement currently as a matter of law to tell the Department of Immigration and Border Protection  that a child was conceived via surrogacy. It ought to be.

For Australian expatriates who undertake surrogacy overseas, then the same basic rules apply, except not requiring them to get court approval here first.

Saturday, December 5, 2015

Chief Judge Pascoe appointed to The Hague surrogacy working group

On Thursday Federal Attorney-General Senator George Brandis announced the appointment of Chief Judge John Pascoe AO CVO as the Australian delegate to the Hague working group considering an international surrogacy convention.

This was great news. This is an excellent appointment. The importance of this appointment cannot be overstated, as it may have implications about surrogacy in Australia for a very long time.

Who is Chief Judge John Pascoe?


The Chief Judge is the head of one of Australia's two national family law courts. The two courts are the Family Court of Australia, which is headed by Chief Justice Diana Bryant, and the Federal Circuit Court of Australia, headed by his Honour. At last count, the Federal Circuit Court had between 85 and 90% of family law filings nationwide. It is also the centre of bankruptcy filings and immigration filings, as well as some other civil jurisdictions. It is in essence a VERY busy place.

Last year the Chief Judge and the Chief Justice called for fundamental reform of how Australia regulates surrogacy. Their Honours said that there should be a Parliamentary inquiry into surrogacy, including the possibility of commercial surrogacy. They said there should be national, or nationally consistent laws, and the ban on residents in some States going overseas for surrogacy should either be enforced, or repealed, noting that the bans were not enforced, and to not enforce laws but have them for symbolism is to make a mockery of the law.

His Honour also has spoken at length about the appalling nature of child and human trafficking. He has described how children were packed in shoeboxes and shipped across the River Mekong. He is passionate about upholding the rights of children. As part of his commitment, he is a board member of a charity in Cambodia to protect children.

When there was an informal Parliamentary inquiry into surrogacy earlier this year, his Honour said that the importance for children was to be loved and have a good quality of care, and that the sexuality of the parents was not important. What was important was the care given to children.

What is the Hague working group?

Australia is a party to several Hague Conventions. These are conventions that are signed at The Hague, in the Netherlands. They are signed through Australia's membership of the Hague Conference on Private International Law. In essence there are two bodies that lead the way internationally in the formulation and signing of treaties and conventions- the United Nations, and the Hague Conference on Private International Law.

The conventions that Australia has signed up to include the Hague Child Abduction Convention (most remembered in Australia from the Italian fours sisters case, when their mother took them from Italy, to where they were eventually returned) and the Hague Intercountry Adoption Convention (which has been blamed in Australia for part of the reason that international adoption in Australia is painfully slow).

For several years now the Hague Conference has been considering as to whether or not there ought to be a convention on private international law concerning children (to include international surrogacy arrangements). The Hague Conference has delegated this work to the organisation that runs the Hague Conference on a day to day basis, the Hague Permanent Bureau.

The Bureau has organised early in the New Year a working group to get together of experts from throughout the world in essence to draft a convention. This is the working group to which Chief Judge Pascoe has been appointed.

We have one chance of getting this convention right. The implications for Australia in getting the convention wrong are huge. Australians are the highest per capita users of international surrogacy arrangements. Australians wander the globe to undertake surrogacy, currently going as far afield as the US, Greece, Canada, the Ukraine, the Republic of Georgia, Nepal, Mexico and Cambodia.

One model suggested is that the convention should be modelled on the Adoption Convention, which has been labelled a "success". Given the extraordinary amount of time that Australian intended parents have to wait to be able to adopt from overseas, I am fearful that a convention based on the adoption convention instead of being a "success" will in fact be an unmitigated disaster. Everyone's rights will be protected (which is a good thing) but with inordinate amounts of delay, red tape, cost and pain. The reality with the Adoption Convention is that Prime Ministers Rudd and Abbott have sought to reduce red tape with international surrogacy- and in Abbott's case signed bilateral agreements with overseas countries. If the Convention were viewed as a success, there would be no need for those bilateral agreements to exist.

As Australians are the highest per capita users of international surrogacy arrangements, the implications of getting the convention right are huge.

For the last few years, I have been one of two international representatives on the Artificial Reproductive Treatment Committee of the American Bar Association. I am the principal advocate and co-author with Bruce Hale from Boston of a draft paper by the Committee about the proposed Hague Convention. I hope to have the endorsement of that paper by the American Bar Association's House of Delegates in February.










Get ready for the Australian surrogacy inquiry

On Thursday Federal Attorney-General Senator George Brandis announced that there would be a federal parliamentary surrogacy inquiry. Hooray! This is something that I have spent considerable time and effort in pushing for. We need some sanity with our surrogacy laws.

The House of Representatives Social Policy and Legal Affairs Committee has to report back by June. Submissions are due by February. The committee wrote to me yesterday and asked me to make a submission. Talk about quick!

The terms of reference are very wide:

The House of Representatives Standing Committee on Social Policy and Legal Affairs will inquire and report into the regulatory and legislative aspects of international and domestic surrogacy arrangements, with a focus on:
  1. the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
  2. medical and welfare aspects for all parties involved, including regulatory requirements for intending parents and the role of health care providers, welfare services and other service providers
  3. issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children
  4. relevant Commonwealth laws, policies and practices (including family law, immigration, citizenship, passports, child support and privacy) and improvements that could be made to enable the Commonwealth to respond appropriately to this issue (including consistency between laws where appropriate and desirable) to better protect children and others affected by such arrangements
  5. Australia's international obligations
  6. the adequacy of the information currently available to interested parties to surrogacy arrangements (including the child) on risks, rights and protections
  7. information sharing between the Commonwealth and states and territories, and
  8. the laws, policies and practices of other countries that impact upon international surrogacy, particularly those relating to immigration and citizenship
The Committee is comprised 5-4 Government/Opposition members. The Chair is George Christensen, National Party, from Queensland.

Thursday, December 3, 2015

Hooray we are going to have a surrogacy inquiry!

Federal Attorney-General Senator George Brandis has announced today that there will be a Federal Parliamentary surrogacy inquiry- something I have been lobbying for.

Hooray- finally we might have some sanity with national, sane laws concerning surrogacy. Not before time.

The inquiry is due to report by June next year.

Sunday, November 29, 2015

Donor conception changing- by the numbers

The smallest proportion of women in Victoria seeking donor assistance are married women, according to the Victorian Assisted Reproductive Treatment Authority. In its 2014-2015 annual report,  VARTA says that 684  or 50% of the women  seeking donor help were single, and 476 or 35% were in same sex relationships. Only 202 of the 1362 total (or 15%) were married.

Although the numbers of new sperm donors is up 79% on the previous year, to 109, there is still a shortage of sperm. 53 women froze their own eggs (resulting in 12 live births), 212 women used fresh donor eggs and 52 used cryopreserved frozen eggs.

CEO Louise Johnson was quoted by the Fertility Society of Australia as saying:

"The fact that more than 200 women used local egg donors last year debunks the idea that people have to travel overseas for treatment if they need donor eggs.

Using a local egg donor and having treatment locally can have tremendous benefits- legally, financially, and emotionally- and these figures are very good news for people considering donor egg treatment."

Sunday, November 22, 2015

Welcome to the Wild West: Cambodian surrogacy

Today I came across a story from the Sydney Morning Herald about surrogacy in Cambodia.
I had heard some time ago that following the Baby Gammy saga, Thai clinics were moving to Cambodia.

Australia, according to Transparency International, is the 11th cleanest country for corruption. The US is number 17, and Cambodia is number 156, out of a possible 175.

In Asia, those previous places of surrogacy, India, Nepal and Thailand are rated as a lot less corrupt. In fact, the only places worse in Asia for corruption are Myanmar, Afghanistan and North Korea.

The infant mortality rate in Cambodia is over 10 times worse than Australia: about 42.1 per 100,000 live births. In Australia it is 4 per 100,000.

Anyone who goes to the Wild West, Cambodia, for surrogacy, is asking for trouble. Quite simply, they shouldn't.