Thursday, November 3, 2016

Qld adoption changes: two wrongs don't make a right

Last night the Queensland Parliament passed amendments to the State's Adoption Act 2009 to allow same sex couples, singles and those undergoing fertility treatment to be eligible to adopt.

This was an historic moment. For the first time in history, this discrimination will be removed- and will enable the assessment of who is to be an adoptive parent for a child to be decided purely on the best interests of the child, and without discrimination based on the sexuality of the intended parents, or whether the intended parents are single as opposed to a couple, and stops the cruel choice for couples of either undergoing IVF OR adoption, but not both.

I and others were critical when the Adoption Act 2009 was enacted- because it was discriminatory. It is pleasing to see this change.

To get this Bill through required real courage on the part of the Palaszczuk government. The two independents voted in favour, as did the casting vote of Speaker Peter Wellington. His voted was needed was because the two Katter Party members voted against, as did, sadly,  the whole of the LNP.

And what was the rationale of the LNP? Quite simply- there aren't enough children to be adopted. They are right. There aren't. But that is no reason to discriminate. The assessment for every child should be based on the best interests of that child, consistent with our international obligations under the International Convention on the Rights of the Child. To do otherwise is unfair, discriminatory, unequal - and wrong. As my 2C teacher Mrs Bray taught me all those years ago: "Two wrongs don't make a right."

The Bill commences when it receives the Royal assent, which should be in the next few days. 

The Government's position is also in line with Australia's position to the world under the Turnbull government. Last year Australian went to the UN in Geneva, and after being roundly chastised by 100 odd other countries about its discriminatory practices with LGBTI people, said that it would stop allowing exemptions to the Sex Discrimination Act for State legislation. Those exemptions came to an end on 31 July.

What is also important from these changes is that for the first time in legislation that I have seen, there is a definition of infertility- and it is non-discriminatory. This definition is consistent with a non-discriminatory definition of infertility proposed by the World Health Organization. The message is clear- that those undergoing infertility treatment can include singles and LGBTI people.  Here is the definition:

Infertility, of a person, means-
(a)   An inability, for a reason beyond the person’s control, to conceive; or
(b)   A genetically transmitted disorder giving rise to a significant risk that, if the person was a biological parent of a child, the child would not survive or the child’s health would be seriously impaired; or
(c)    A condition giving rise to a significant risk that, if the person fell pregnant, the child would not be carried until the child could be delivered alive; or
(d)   A condition giving rise to a significant risk that, if the person fell pregnant, the person would not survive or the person’s health would be seriously impaired.

Monday, October 17, 2016

Single, gay, lesbian, bisexual, trans and intersex people want to have babies too

"I'm on the right track baby- I was born this way": Lady Gaga

It is one of those acts of fate that not all of us are born the way that we wish to be, or we need to be to be able to reproduce naturally.

Some women discover that their eggs don't work- and need an egg donor. Some men discover that their sperm doesn't work and a sperm donor is required.

Some women are born without a uterus, or are survivors of cancer, and need a surrogate.

Some of us discover that we are lesbians- and cannot have children without the aid of some man's sperm.

Some of us discover that we are gay or bisexual- and cannot have children without the aid of an egg donor and a surrogate.

But there are others of us who get forgotten. While some trans people can reproduce, others cannot. The hopes and desires of these people  to have children and to raise a family is just as real as that as anyone else.

Similarly, intersex people are often forgotten. They often cannot reproduce naturally, and just like seemingly everyone else may have that burning desire to become parents.

Some people are single, but still want to have children. They may need an egg donor, or a sperm donor or a surrogate or all three.

And for many people, unfortunately the law discriminates about whether they can or cannot be parents. In the powerful words of an old client of mine, "The Government cannot tell me when I can or can't have children. The Government can't play God." Well, yes it can and yes it does, or to be more accurate, Parliaments do so.

How do our reproductive laws discriminate?

By and large, we have State based fertility laws in this country, and they vary considerably.


There is discrimination in Queensland. The Anti-Discrimination Act specifically allows for discrimination on the basis of relationship status and sexuality in the provision of assisted reproductive treatment services. However, with the removal of exemptions to the Sex Discrimination Act on 1 August, the latter overrides the former. In practice, I have not heard of discrimination for a long time. The Surrogacy Act is non-discriminatory.

New South Wales

On its face, NSW law does not discriminate.


ACT law discriminates in surrogacy cases not on the basis of sexuality, but whether a person is single. Only couples need seek surrogacy, and the surrogate must also be part of a couple. No single surrogates can help in the ACT.


On its face, Victorian law does not discriminate.


Tasmanian law does not discriminate as to whether someone is single or a couple, or on the basis of sexuality. Given its small size, the surprising thing is that for surrogacy cases, EVERYONE must come from Tasmania at the beginning of the case. While that might be dispensed with by a Magistrate at the conclusion of the case, that is 18-24 months away at best.

South Australia

South Australia specifically discriminates against lesbians, single women at some level, and anyone who is seeking surrogacy who is not part of a heterosexual couple (and even those if they are in a de facto relationship for less than 3 years). However, South Australia is looking to legislate to remove this discrimination, possibly by the end of this year, which in any case is impacted by the changes to the Sex Discrimination Act.

Western Australia

Western Australia does not discriminate with assisted reproductive treatment services BUT it does discriminate with surrogacy. Funnily enough, heterosexual couples, lesbian couples and single women can access surrogacy, but gay couples and single men cannot. Where this leaves trans and intersex people- who knows.

Northern Territory

The NT has few laws affecting fertility, and therefore on the face of it no discrimination- BUT- the only clinic there will not provide surrogacy services (because there are no surrogacy laws in the NT and therefore there cannot be a transfer of parentage) and because the doctors come from Adelaide, their provision of assisted reproductive treatment, including IVF, is limited to South Australian laws.

And then there is the uncomfortable discussion...

I have acted for a number of trans intended parents. When the client is female to male, is he a woman for the purposes of these fertility laws? Is he a woman for the purposes of presumptions under the Family Law Act? I simply don't know, but suspect that the courts would accept him as male, similarly to marriage cases when marrying an opposite sex partner. However, some transmen have chosen to go off their hormones, and become pregnant. I was told recently by an expert about a transman doing this three times over.

And if the person identifies as female, whether trans or intersex, then there is the uncomfortable discussion about whether she is an "eligible female". If she is not an "eligible female" for the purposes of the legislation then surrogacy treatment at least may not happen.

If the person, like Norrie, identifies as neither male nor female, I do not know how they would fare with accessing treatment or surrogacy, especially in say Western Australia.

We shall see how these cases play out- where the law and medical practice might collide with the natural and burning desire of people to have children.

Monday, October 10, 2016

Why I believe that usually there is little point getting a parenting order for those undertaking surrogacy overseas

Recently a number of clients and an overseas colleague have raised with me about why there is a difference in viewpoints amongst Australian lawyers about whether or not it is advisable to obtain a parenting order in the Family Court after undertaking surrogacy overseas.

First the numbers

A legal answer does not rely upon statistics, but the statistics tell a story. In the last few years it is estimated that about 250 children a year have been born overseas via surrogacy and obtained citizenship here. The true figure will be higher- because some heterosexual couples pretend that they underwent pregnancy overseas, and those adults living here on visas don't seek Australian citizenship for their children.

But let's accept for the moment that there are 250 children born overseas via surrogacy who make their way back to Australia. About 3 of them each year will be the subject of parenting orders soon after returning. The other 247 won't be.

Their parents learn that while in theory it would be a good idea to have loose ends tied up and to obtain a parenting order, it is a very expensive process, and has a dubious outcome. Why bother?

Then the good news

The benefits an order can bring are that it says who has parental responsibility and says where the child resides. If one of the parents were to do a runner and abduct the child- and take the child to a Hague Convention country- then having the order would be very helpful.

And if the parents are lucky, they will be recognised by the court as parents.

The bad news

For parents who have paid say $120,000 undergoing surrogacy in Canada or say $200,000- $300,000 in the US, adding another $20-30,000 for a parenting order in Australia is a big ask.

What don't you get for the order?

You don't get citizenship. That will normally already be obtained. You don't get a Medicare card. You will have already done that. Armed with the citizenship certificate, the birth certificate and a Medicare, there should be no difficulty for most if not all parents in enrolling their child in day care, school, claiming Centrelink, including Family Tax Benefits, going to the doctor and to hospital in an emergency.

What do you get with the order?

Well just that you have parental responsibility and the child lives with you. If a declaration is made that you are a parent, then that will also mean that for inheritance purposes you will be recognised as a parent, and your child will inherit.

Quite simply, I am of the view that every adult should have a will. Those undertaking surrogacy have a special responsibility to their children to make sure that they have properly drawn wills- so that their children will be able to inherit- and uncertainty as to whether a child may or may not inherit, and subject to the rules of intestacy- will be completely avoided. Properly drawn wills provide certainty.

Won't the court declare that you are the parents?

In theory this might happen, but recent case law says otherwise. Take the couple known as the Dudley's, or the Dennis'es. Back in 2011 they went before one judge of the Family Court- who declared that they were the parents. They went before another judge (because they had had three children via surrogacy in Thailand) who said that he doubted that they were the parents- and here is the kicker- referred them to Queensland's Director of Prosecutions for possible prosecution for breach of the law in Queensland preventing people from undertaking commercial surrogacy overseas.

Queensland, New South Wales and the Australian Capital Territory have laws that stretch overseas. They make it an offence to go overseas for commercial surrogacy- as defined in those places. What you might think is altruistic surrogacy overseas might, because of the laws in those places, be commercial surrogacy back home.

South Australia and Western Australia also have laws that can make it an offence to go overseas for surrogacy.

The only places where it is clear that you can go overseas for commercial surrogacy without potential legal drama are Victoria, Tasmania and the Northern Territory.

Be that as it may, in 2012 one judge of the Family Court found that a Queensland man who went to Thailand for surrogacy was a parent. The following year she took the view in another case that she was probably wrong in the first case- and that a couple living in Sydney who had undertaken surrogacy in India were unlikely to be the parents. They later returned to the UK,  completely frustrated with the process here, overcame legal barriers and established in the UK that they were the parents.


  • a man who was the genetic father living in Victoria and went to India was found to be a parent.
  • a man from Western Australia who underwent surrogacy in India was found to be a parent.
  • a man from Victoria who went to India for surrogacy was held to be the genetic father- but said the court- it did not have the power to find that he was the parent. In the same case, the court found that the man's wife was NOT a parent because an egg donor was used- and in any case the court said that it did not have the power to declare her a parent. The couple have appealed.
  • a couple from Western Australia were found NOT to be the parents- and the judge criticised the earlier Western Australian case.
The simple point is that until there is clarification on an appeal, it is a simple lottery about whether you are going to be declared a parent or not- and for which you may the privilege of $20,000!


The South African case

In 2013, an Australian judge found that a man living in South African and who obtained an order there that he was the father of children was a parent here.

What was clear, unlike some of the other cases, was that the man was acting lawfully. The case may open the possibility that those who undertake altruistic surrogacy in Canada (provided it meets the description back here) or those undertaking surrogacy in the US from Victoria, Tasmania and the Northern Territory (and possibly South Australia) will be recognised as parents here- because they have lawfully in Australian eyes undertaken surrogacy there- and been recognised by the courts or authorities there as the parents (and should be recognised as the parents here).

So in a snapshot

I don't like clients wasting money. I don't like clients having uncertainty. Unless and until the process is a more certain and positive one- depending on the circumstances of my individual clients- I won't usually be recommending getting a parenting order from the Family Court. What at first seems like a real option is, on closer examination, not such a great idea for most people. The devil, as they say, is in the detail.

Tuesday, August 23, 2016

The national regulator beats up the IVF clinics

The only national regulator of IVF clinics across the nation (in several States, IVF clinics have the misfortune to have both State and national regulators), the National Health and Medical Research Council, has written to IVF clinics suggesting that fixed fees to egg donors might in some way be improper, and noting that this is an issue that will be checked come audit time.

The threat is a serious one- because the penalty for payment to an egg donor under the nation's Human Cloning legislation is up to 15 years jail. A possible outcome is the NHMRC trying to remove the licences of the IVF clinics concerned.

But it would appear that the view expressed by the NHMRC is misconceived. Why? Because it has to be established that the amount that a donor has been paid is not "reasonable expenses". What is reasonable will depend, of course, on each case, but provided the amount is low enough it appears to me at least that it could also be reasonable.

A good comparison might be the amount that a person claims for interstate travel. Unlike the NHMRC, the regulator of our taxes, the Australian Tax Office, has published guidelines on the amount considered reasonable and therefore claimable in accommodation and food for each of our major capital cities. The amount varies from city to city and as to the income of the taxpayer concerned, in certain ranges of income. But- and this is the point- here are the amounts that would clearly be reasonable- even though each taxpayer's circumstances are different.

Imagine if a donor were to stay in accommodation in one of the capital cities in order to donate. How could it possibly be argued that if the donor were paid an amount for that accommodation, and the accommodation was for an amount within the ATO range (admittedly for another purpose), that that amount is not reasonable?

And what if there were a series of donors whose expenses were essentially the same? Should they not receive the same amount, in a standardised manner- or is the NHMRC simply being unreasonable and suggesting that each and every time a donor donates there must be an assessment of each and every expense of the donor?

Part of the difficulty is that the NHMRC has not published any guidance as to what constitutes "reasonable expenses", and nor has there been any prosecution, so there is no guidance from a court as to what reasonable expenses might or might not be. Instead the NHMRC has decided to throw its weight at clinics and seek to threaten them with their licenses. And what might be the outcome of this behaviour- clinics will be less inclined to pay donors for fear of crossing the regulator, and intended parents will therefore be more inclined to go overseas out of necessity- where donors are typically anonymous, might be paid, and the child will never know who the donor is. Nuts!

And the only case where the issue of payment under the Human Cloning Act came up? It was of all places in the High Court. Two doctors were arguing about damages arising from frozen sperm that was non-compliant with , you guessed it, the Human Cloning Act. The doctor who bought the IVF practice had to get new supplies of sperm, and did this from a US sperm ban called Xytex. This is what Justice Hayne said:

"As already noted, however, the Court of Appeal concluded that the appellant had mitigated her loss by buying replacement sperm from Xytex. In respect of "the loss of each straw of replacement sperm actually sourced from Xytex" before the date of assessment of damages, Tobias AJA concluded that the chief component of the appellant's "loss" would be "the sum (if any) representing that part of the overall cost of acquisition of that straw not recouped from a patient". And in respect of "the residue of the 'lost' 1996 straws over and above those in fact replaced by Xytex sperm up to the date of trial", Tobias AJA concluded that "the appropriate course would have been to assume that [the appellant] would continue to source straws of donor sperm from Xytex at a cost consistent with that which had prevailed since August 2005, and that she would continue to recoup from patients the same proportion of that cost as she had done in the past". On this footing, Tobias AJA concluded that the appellant's damages in respect of straws not "replaced" would be "the aggregate of the discounted present value of the un-recouped balances (if any) of that cost as at the date of their assessment" (emphasis added)."

You can bet that the doctor paid a fixed fee to Xytex and the Xytex donors for each donation and did not negotiate and assess an individual amount each time.

The doctor also charged a "buffer" between what she paid for the sperm and what she charged patients. Justice Keane stated:

"The appellant, in providing ART services for a fee, cannot sensibly be said to be engaging in commercial trading in sperm for a profit."

Surely if the payments being made to Xytex were improper, they would have been commented upon, and disapproved by members of the High Court. Quite simply, there were no such comments.

If it's good enough to pay sperm donors a fixed amount, and the legal basis is under the very same section of legislation dealing with egg donors, why is it not good enough to be paying egg donors a fixed  amount, provided that amount is reasonable?

Sunday, August 21, 2016

The triumph of the Sex Discrimination Act- making it easier to access IVF for LGBTI people

At the beginning of this month, exemptions under the Sex Discrimination Act to allow the States to discriminate against LGBTI people ended. The impact of these changes, which have been barely mentioned, is profound.

What is the Sex Discrimination Act?

The Sex Discrimination Act 1984 is Commonwealth or federal legislation. It prohibits discrimination in a range of activities, including the provision of services, to people with certain attributes, including single women, and LGBTI people. There are exceptions, including religious exceptions.

Being Commonwealth legislation it reigns supreme. Under our constitution (and for that matter the ACT self-governing act) if there is a conflict between a piece of Commonwealth legislation and State or Territory legislation, the Commonwealth legislation prevails to the extent of the inconsistency.

Adding LGBTI people came later, and was not part of the original purpose of the Act. To allow the States time to adjust to the changes, the Commonwealth allowed some exemptions, essentially so that the States could get their houses in order and compliant with the Sex Discrimination Act.

The Commonwealth was criticised by about 100 other nations in Geneva last November at the UN for in essence being tardy on this point and allowing these exemptions to remain. The Commonwealth told the UN that it would remove the exemptions by the end of July 2016 (as also called for by then Human Rights Commissioner Tim Wilson ) and it has done so.

The demonstrated power of the Sex Discrimination Act

in the past, some States legislated to prohibit the provision of IVF to single women. It seems that only married women were good enough, in the eyes of their Parliaments to become parents. Well that fell foul of the Sex Discrimination Act, which prohibited discrimination on the basis of marital status. In two separate cases, the law was made plain- if a State law says that a doctor cannot provide treatment but the Sex Discrimination Act says that not to provide treatment is discriminatory- then the latter prevails.

The first case was that of Mrs Pearce. She was divorced and wanted to have IVF. She lived in South Australia. Her doctors refused to provide treatment- because she was not married, which would have been a breach of South Australian law. Mrs Pearce took the matter to the South Australia Supreme Court, which found that the Sex Discrimination Act prevailed, and she could have treatment.

Result: Sex Discrimination Act 1, State legislation: 0. 

The second case involved a well known Melbourne fertility doctor, Dr McBain, who was unable to treat a patient because she was single. Victorian law said only married women could access IVF. Dr McBain took the Victorian government to the Federal Court, which found that the Sex Discrimination Act prevailed, and the patient could have treatment.

Result: Sex Discrimination Act 2, State legislation: 0.

What does this mean for IVF?

Quite simply, any State laws that prohibit the provision of IVF on the basis of the patients relationships status or the patient being LGBTI are now rendered nugatory, due to being  inconsistent with the Sex Discrimination Act.

In South Australia, the Health Department recognised the problem and wrote to all the IVF clinics there and advised them of the change, telling them to get legal advice on a case by case basis. It is anticipated that later this year due to a process started by the Weatherill government, and in which I have input, laws will be passed in South Australia to remove discrimination in the ability of who can be a parent. But in the meantime, doctors now have an obligation to comply with the Sex Discrimination Act and provide treatment to those who were excluded before.

If in any doubt what a revolution this is, this is what s.9 of the Assisted Reproductive Treatment Act 1988 (SA) says about fertility doctors' licensing:

"(c)         a condition preventing the provision of assisted reproductive treatment except in the following circumstances:

                  (i)         if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (ii)         if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (iii)         if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;
                  (iv)         if—
                        (A)         the donor of the relevant human semen has died; and
                        (B)         before the donor died—
        •         the donor's semen was collected; or
        •         a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor's semen; or
        •         an embryo had been created as a consequence of such assisted reproductive treatment; and
                        (C)         before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and
                        (D)         if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and
                        (E)         the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis."

In Queensland, the Anti-Discrimination Act allows discrimination in assisted reproductive treatment services on the basis of relationship status and sexuality- in other words the very mischief seemingly ended by the removal of this discrimination. The Queensland Health Department has not written to IVF clinics advising about the change.

Other States

Despite being called upon by then Human Rights Commissioner Tim Wilson last year for all the States and Territories to review their anti-discrimination laws to remove discrimination against LGBTI people, it seems none have.

What does this mean for discriminatory surrogacy laws?

That bit is unclear. While the doctor might be able to provide IVF, if the intended parent is discriminated against because of being single (ACT and SA), single male (WA), a gay couple (WA), or a same sex couple (SA) in the ability to obtain through the court a surrogacy order, then we run into trouble. While there is clearly discrimination, if it is not in breach of the Sex Discrimination Act, then a doctor might be compelled to provide treatment, but be told by the regulator that IVF cannot be provided in surrogacy (such as WA).

The sooner the ACT, WA and SA get rid of their discriminatory laws concerning surrogacy, the better. Intended parents should not now be trapped between these two laws.

Monday, August 15, 2016

Presentation to Rainbow Fertility seminar

A couple ofweeks ago, I presented to a continuing professional development seminar for GP's- about Rainbow Fertility.

Rainbow Fertility is a new chain of  clinics specifically tailored to assist the fertility needs of LGBTI patients. I told the 50+ GP's in Brisbane that the needs of LGBTI people were the same as straight people- they wanted to be respected when they went to the doctor, not belittled, and they wanted to have children like everyone else.

I then talked about some of the specific needs of LGBTI people in seeking to become parents. These included:

  • generally adoption was not available.
  • lesbian couples often sought to have a known sperm donor. My view is DON'T. However, if they wish to proceed with a known donor, then to lessen risks (but not remove them) then they ought to attend a fertility counsellor with their donor- and get a report from the counsellor setting out their intentions, and then have a written, properly drafted sperm donor contract, when hopefully both sides have had independent legal advice.
  • Gay couples as a matter of course will need to pursue surrogacy- and then run into the twin problems of sourcing an egg donor and a surrogate- when there are bans on advertising (at least for surrogates) and there is a legal minefield about how to become parents.
  • I talked about about how my husband Mitchell and I walked down the street holding hands. I said that we often were glared at by others who were disapproving of us holding hands- often by straight couples, also holding hands at the time. This statement was met by gasps from the audience, apparently shocked at how we were glared at. I also said that every couple of weeks we get homophobic abuse hurled at us by others- again for either just walking down the street, or for that matter again holding hands. Again, the audience gasped. I said that this kind of experience was often felt by LGBTI people- before they come in the door of their doctor's.

Sunday, August 14, 2016

Presentation to City Fertility Centre, Melbourne

A couple of weeks ago,I had the privilege to present to City Fertility Centre, Melbourne, about fertility law issues, including egg and sperm donation and surrogacy.

The setting was especially apt. Earlier in the day I had appeared in the County Court of Victoria, and had obtained a substitute parentage order for my clients, who were the intended parents under a surrogacy arrangement. My clients had gone to India in 2012- after changes had been set out by the Indian government, and paid many thousands of dollars having their embryos frozen- but at a time when the doctor knew or ought reasonably to have known that nothing could be done with those embryos other than freezing them.

When my clients first approached me, I was of the opinion in all likelihood there was probably little that they could do about their frozen embryos (unfortunately I was right), and that they should start again- this time with a domestic surrogacy arrangement. They did so- and in the process became the first surrogacy arrangement through to completion by City Fertility Centre in Melbourne.

That arrangement had a few minor bumps ont he way, but overall went through very smoothly.

So following that court appearance, it was over to City Fertility Centre to present, for what I was told was for an hour. Well, that was the plan. Instead, I was asked so many questions by an incredibly enthusiastic audience, that I stopped speaking- exhausted- 2 1/4 hours later! I talked about the usual suspects- surrogacy, and egg and sperm donation, and the laws and practices concerning each. I gave practical examples about how when others thought that my clients would not be able to become parents, I was able to guide them through the legal maze and enable them to become parents.

A wholly satisfying day!