Monday, December 24, 2012

Merry Christmas

The other day I received a Christmas card on it with a photo of a very special baby sitting on Santa's lap. This baby was conceived through a surrogacy arrangement. I acted for the very proud intended parents. This little girl is now over a year old.

When I received the card, I smiled from ear to ear. She looked beautiful. The card reminded me of the joy I get out of my job- helping people achieve their dream of becoming parents, which makes me the luckiest man alive.

Merry Christmas, everybody!

:)

Stephen Page

Monday, December 10, 2012

If Roxon's bill is passed, the proposed Queensland changes may be dead

In June this year, Queensland Attorney-General Jarrod Bleijie announced that the Newman Government would amend that State's Surrogacy Act so as to ensure that only married couples and heterosexual de facto couples who had lived two years together could seek surrogacy.

Those intended to be excluded were gay and lesbian couples, singles, and those in a de facto relationship of less than 2 years.

This intended discrimination is contrary to that in NSW, Victoria, Tasmania and the NT, which do not discriminate. WA discriminates by making those eligible for surrogacy having to be married or in a heterosexual de facto relationship or single women. Gay and lesbian couples and single men need not apply. SA has similar laws to those proposed for Queensland.

The ACT does not discriminate against gays and lesbians, but does so against singles. Those seeking surrogacy and surrogates (and their partners) must be a couple.

Federal Attorney-General Nicola Roxon has announced comprehensive Commonwealth anti-discrimination legislation. Currently unlike State legislation, the Commonwealth legislation has been piecemeal, for example covering racial discrimination, and that against women.

The draft exposure Anti-Discrimination Bill, if passed, and upheld by the High Court following an inevitable challenge, will change all that. It appears that it will ensure that discrimination no longer applies in surrogacy. Australians wherever they are should be able to seek surrogacy without any concern that the current discriminatory regimes will prevent them from proceeding.

This law, if passed and if upheld by the High Court, should kill dead the proposed Queensland changes. This doesn't mean that the Newman Government won't proceed with its changes- it says it will, and the Newman Government's statement should be accepted on face value- but if passed this draft Bill should  invalidate those discriminatory changes.

This is because of the effect of section 109 of the Commonwealth Constitution. The Founding Fathers were keen to put in a provision in the Constitution that says if there is a conflict between State and Commonwealth laws one must prevail- and section 109 says that the Commonwealth laws are the ones that prevail.

The draft Bill has a three card trick in dealing with discrimination, which as I will show, should remove discrimination in surrogacy matters.

The scenario

Bill and Ben, a gay couple, enter into a surrogacy arrangement. They are able to obtain treatment for the surrogate, a child is born and with the agreement of the surrogate is placed into their care. They apply to Queensland's Children's Court for a parentage order in their favour. Assume for the moment that the Newman Government's proposed changes to the Surrogacy Act occur- and on face value Bill and Ben are not intended parents within the definition of the Surrogacy Act, and cannot at face value obtain a parentage order.

The conclusion: If a Children's Court judge were to refuse to grant an order in their favour because Bill and Ben are gay (and because they are excluded by virtue of the Surrogacy Act), they have been unlawfully discriminated against. The court would have discriminated against them because they were gay- which is a protected attribute- because of their sexuality and their relationship status. That discrimination would be connected to an area of their public life, and therefore unlawful.

The three card trick

The first card: there must be discrimination

The relevant provision says:


"A person (the


first person) discriminates against another person if



 


the first person treats, or proposes to treat, the other person



 


unfavourably because the other person has a particular protected



 


attribute, or a particular combination of 2 or more protected

 attributes."



The Bill would cover any discrimination under State legislation (such as the proposed Queensland changes) because it also is proposed to apply to the States. Therefore any relevant discrimination (as there are some exceptions, which are not relevant to this discussion) provided for under State legislation may in and of itself fall foul of the law, and be unlawful.

The second card

The discrimination must be because of some particular protected attribute of the person.

Protected attributes include whether people are married, in a de facto relationship or single, or whether they are gay, lesbian or straight.


The draft Bill says:




 

The protected attributes are as follows:



 


(a) age;



 


(b) breastfeeding;



 


(c) disability;



 


(d) family responsibilities;



 


(e) gender identity;



 


(f) immigrant status;



 


(g) industrial history;



 


(h) marital or relationship status;



 


(i) medical history;



 


(j) nationality or citizenship;



 


(k) political opinion;



 


(l) potential pregnancy;



 


(m) pregnancy;



 


(n) race;



 


(o) religion;



 


(p) sex;



 


(q) sexual orientation;
 

(r) social origin.

I have highlighted three that are directly relevant to the proposed changes by the Newman Government.

The third trick

The discrimination must be unlawful

The discrimination against someone who has a particular protected attribute, must be connected with any area of public life. The definition of "any area of public life" is inclusive- in other words if there is something related to a person's public life that is not contained in the list, then that will also be unlawful. Put simply, going to court about surrogacy is a clear aspect of public life. It is asking the State to sanction with its approval the surrogacy arrangement that has taken place. If a judge in Queensland, for example, were to say:

"I am sorry Ms Jones I cannot make a parentage order in your favour because the Surrogacy Act prohibits you as a single unmarried woman from being an intended parent", then in my opinion that is an aspect of public life; that would constitute unlawful discrimination and therefore be prohibited if this draft Bill were passed.

It would be an extraordinay thing if the inability to obtain a loan is an area of public life (which it is under the definition) but going to court about your child conceived through surrogacy was not.

In addition, it could be argued that seeking a court order is seeking a "service" that is supplied by Government, which would  mean that the court or Government could not discriminate.

The Bill provides:



"(1) It is unlawful for a person to discriminate against another person if
the discrimination is connected with any area of public life.



 


Note: For exceptions to when discrimination is unlawful, see Division 4.



 


(2) The areas of public life include (but are not limited to) the



 


following:



 


(a) work and work-related areas;



 


(b) education or training;



 


(c) the provision of goods, services or facilities;



 


(d) access to public places;



 


(e) provision of accommodation;



 


(f) dealings in estates or interests in land (otherwise than by, or



 


to give effect to, a will or a gift);



 


(g) membership and activities of clubs or member-based



 


associations;



 


(h) participation in sporting activities (including umpiring,



 


coaching and administration of sporting activities);



 


(i) the administration of Commonwealth laws and Territory



 


laws, and the administration or delivery of Commonwealth

 programs and Territory programs."



"Services" is defined as meaning:









"...services of any kind, including  (for example) the



 


following:



 


(a) services relating to banking, insurance, superannuation and



 


the provision of grants, loans, credit or finance;



 


(b) services relating to entertainment, recreation or refreshment;



 


(c) services relating to transport or travel;



 


(d) services relating to telecommunications;



 


(e) services of the kind provided by the members of any



 


profession or trade;



 


(f) services of the kind provided by a government, a government

 authority or a local government body."

Sunday, December 9, 2012

Indian Americans struggle to adopt

As this article highlights, fewer and fewer children are available for adoption internationally, even Indian children for Indian Americans : http://indiawest.com/news/7980-indian-americans-embark-on-an-adoption-journey.html

It's my body but their baby

The story of Queensland surrogate Rachel Kunde and how she has changed lives, bringing the gift of life to others:

The story goes to show how special surrogates like Rachel are. It also shows that the desire to have children, and the ability to care for children, is not dependent on sexuality.  

US Supreme Court cases highlight differences between biological and legal parentage

USA Today has written about the clear differences between biological and legal parentage:
 
The article shows the mess the law is in as to dealing with the advances in IVF and surrogacy- a position that is broadly reflected in Australia. Here lawmakers have struggled to make the laws reflect what is happening. For example, when I presented to NSW MP's in September abourt surrogacy matters, they were stunned that under their legislation "parents" of children born overseas via surrogacy (whether legal or illegal) may not be parents as a matter of law in NSW.
 
This is even if they are considered to be "parents" under the Australian Citizenship Act, or biologically the "parents" or even the "parents" in the overseas jurisdiction where the children were born.
 
Confused? Probably a good starting point for confusion is the Queensland couple who went to Thailand for surrogacy and then found themselves the subject of the Family Court surrogacy case, which I wrote about here: http://surrogacyandadoption.blogspot.com.au/2012/08/family-court-decides-international.html.

Friday, December 7, 2012

Today I obtained my first NSW parentage order for surrogacy. What a brilliant day! Everyone is so happy. 18 months of preparation, child is born and orders made. Wonderful!

Wednesday, December 5, 2012

Thank you from a new mum

Today I received a thank you note from a new mum. She was an intended parent under a surrogacy arrangement. It was so lovely to receive:

"Thank you. Dear Stephen and Associates,

A big thankyou to all for the hard work, that went into, making my long time dream of being a mum, come true. A big thankyou once again...."

Thursday, November 22, 2012

Qld not to change surrogacy laws until next year

Queensland is not to change surrogacy laws to exclude gay and lesbian couples, single intended parents and those in heterosexual de facto relationships of less than 2 years, although it would appear that Queensland is still intending to proceed with the changes.

Tuesday, October 23, 2012

Monday, October 22, 2012

Indian surrogacy changes may make surrogacy there for Australians almost impossible

Changes announced recently by the Indian government may make it almost impossible for many Australians to undertake surrogacy there. On the worst case scenario, the only people who might be able to access commercial surrogacy in India are those who are married for greater than 2 years who are living in the Northern Territory.

Anyone contemplating surrogacy in India should get good Australian legal advice first.

This timeline sets out the progression of events.

  • In 2008, India circulated a draft Assisted Reproductive Technology (Regulation) Bill, which was intended for the first time to regulate IVF clinics, including for the provision of surrogacy services. The Bill was never passed by Parliament, so it never became law.
  • In 2010, India circulated a new Assisted Reproductive Technologies (Regulation) Bill. The Bill has not been passed by Parliament, and is not the law in India as far as I am aware. The Bills were in part a reaction to the perception that Indian surrogates were being exploited, as discussed in this New York Times opinion piece.
  • A key change between the 2008 and 2010 Bills was in clause 34(19). In the 2008 Bill, the clause relevantly read:



"Further, the party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be."
 
In other words, India wanted to make sure that intended parents were able to take the babies to the home country of the intended parents.
 
  • In the 2010 Bill, this wording was much more specific:
"Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and
unambiguously stating that (a) the country permits surrogacy, and (b)
the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be."
 
  • Therefore the requirement of the new Bill was quite onerous: if passed it meant that the country of the intended parents would have to write a letter ( a big ask in itself) and say "clearly and unambiguously"  that the country permitted surrogacy (without defining surrogacy) and that the baby could go back to the country of the intended parents.
  • In April, the Indian Government issued a notice along the lines of the 2010 clause, saying that a surrogacy visa would have to be obtained for intended parents to enter India. I saw then that the change in rules would especially impact on intended parents from New South Wales, Queensland and the Australian Capital Territory.
  • Since then, the view of clinics and surrogacy lawyers in India is that it has been "business as usual".
  • However in the last week there have been two developments that indicate that India is serious about implementing these changes.
The first development is this story in the Dubai based Gulf News in which the Indian consulate in Dubai is quoted as saying that foreigners can only access surrogacy in India if they have a medical visa and then a surrogacy visa.
 
A new requirement, according to the story, is that the intended parents must be married for a minimum of two years. There is no such restriction in the draft ART Bill, but not all the draft Rules and Regulations were published, meaning that it may have been India's intention always to exclude the following intended parents:
 
  • same sex couples
  • singles
  • heterosexual de facto couples
Until now India has not been discriminatory in allowing intended parents to proceed. This is a new area of sovereign risk for those contemplating surrogacy.
 
It doesn't appear that the changes are retrospective. In other words, those who are in the system should be able to proceed with their surrogacy. They should always get advice from a good Indian lawyer. If they do not have one, I can refer them to one.
 
 
The requirement of the 2010 Bill for the country of the intended parents to provide verification now seems to be the Indian Government's position. This is especially troublesome in Australia. What is "surrogacy" in the Indian context? It's unclear, except it appears to be "commercial surrogacy". Here's where things get particularly interesting:
 
  • There are no Australian national laws regulating surrogacy. The laws on surrogacy are largely State and Territory based.  If expatriate Australians seek to undertake surrogacy in India, which they might be able to do, they are not restricted by State laws concerning surrogacy, but are entitled like other Australian intended parents to take advantage of the Australian Citizenship Act 2007, Commonwealth legislation, which provides in section 16(2):
"(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application."
 
 
  • Just thinking that through, what that means is that for expatriate Australians it may be perfectly legal for them to engage in commercial surrogacy (if it is legal for them to do so in the foreign country in which they reside). However, the Australian Government may not write such a letter.
  • If the intended parents are either permanent residents of Australia or citizens living in Australia, then it remains confusing. This is because:
    • currently in Australia, 7 out of 8 jurisdictions ban commercial surrogacy (except the Northern Territory where there is no ban, except that by virtue of the National Health and Medical Research Council guidelines, commercial surrogacy cannot be offered through an IVF clinic- only traditional commercial surrogacy can occur in effect).
    • currently in Australia, 7 out of 8 jurisdictions (soon to be 8, when the Tasmanian changes become law) allow altruistic surrogacy.
    • currently in Australia, 5 out of 8 jurisdictions allow international commercial surrogacy (Victoria, Tasmania, South Australia, Western Australia, Northern Territory) and 3 criminalise it (Queensland, New South Wales and the Australian Capital Territory).
  • Who knows what the Australian government might write about surrogacy.
  • Who knows what the Australian government might write about bringing the baby back to Australia. The test for citizenship under section 16 is demonstrated intent, as decided by the Federal Court; but the Family Court has commented that illegality or State legislation might determine who is or is not a parent (and therefore as a potential flow on effect whether the child is a citizen); but the Department of Immigration and Citizenship for Australian intended parents has been using a test that is not the law, is not based on any Act of Parliament nor Regulation, is contrary to the position of the Federal Court, and is merely to show a DNA link as to parentage, and is contrary to the Department's practice for those seeking a child through surrogacy in the USA. If a child has been conceived using donor egg and sperm, or there has been a mistake in the clinic, then the Australian intended parents in India will not be able to take the child home, despite their demonstrated intent to show that they are the parents of the child.
As the Gulf News article states:
 
"The treatment can be done only at registered ART clinics recognised by the Indian Council of Medical Research (ICMR). Also before couples leave India, ‘exit’ permits must be be obtained testifying that the couple has taken full custody of the child and all liabilities towards the Indian surrogate mother have been fully discharged."

 
The last development is set out in the letter from the President of Surrogacy Australia, Sam Everingham to the Indian Consul-General in Sydney. I reproduce the letter in full (and I have highlighted portions in red):
 
Arvinder S Ranga
Consulate General of India
Level 10, 190 George Street
SYDNEY  NSW  2000
 
RE: Updated Regulations Regarding Travel to India for Surrogacy
 
Dear Mr Ranga
Thank you for making the time to meet with me today.
Our figures show approximately 400 Australian intended parents are travelling to India each year in the hope of creating a family via surrogacy.  In the 12 months to June 2012 it is estimated that over 220 infants through surrogacy in India were awarded Australian Citizenship By Descent, a figure which has been increasing significantly in recent years.  Well over half of these infants have been born to same-sex couples, singles and heterosexual couples in de-facto relationships.
By way of documenting Surrogacy Australia’s understanding of the correct approach to application for surrogacy in India I note that under current policies, the appropriate visa will not be granted unless applicants are currently married and have been in that marriage a minimum of two years.
Further the commissioning couple are to provide with their application
a.       A letter from the Australian High Commission to the applicant stating that Australia recognises surrogacy and the child/children born will be permitted entry into their country as a biological child/children of the commissioning couple;
b.      A copy of their marriage certificate;
c.       A copy of the relevant State legislation which shows that overseas surrogacy is not illegal in that State;
d.      A copy of their DNA test application;
e.       A statement that they are normally resident in one of Victoria, South Australia, Western Australia, the Northern Territory, Tasmania and hence are eligible to undertake overseas surrogacy.
f.       A copy of the signed notarised agreement between themselves and the prospective Indian surrogate mother.
The commissioning couple should allow 1 – 2 months processing times for this visa.
There remains great confusion amongst eligible couples regarding visa type to apply for.  Correspondence sighted by me  from GVV Sarma (Joint Secretary – foreigners) to Shri Amarenddra Khatua, Additional Secretary (PV), Ministry of External Affairs, Government on 9th July 2012 (F. No.25022/74/2011-F.I) which was copied to all sections in the Foreigners Division states that “the appropriate visa category will be a medical visa”
In light of above Surrogacy Australia would also request that the relevant authorities:
a.       Provide us with the current list of ART clinics recognised by ICMR;
b.      If the correct visa is a medical visa (see below), then the “Who Can Apply?” instructions at http://www.vfs-in-au.net/medicalattendent.html need to be reworded given commissioning couples are often not undergoing medical treatment themselves.  (Instead their surrogate is).
c.       To avoid ongoing confusion, reword the IMPORTANT NOTICE on the http://www.hcindia-au.org/consular_passport_visa_oci.html page from
 
Any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country (Australia) permits surrogacy and will provide appropriate travel documents to the child for accompanying surrogate parents.  Entering into surrogate arrangement under any other visa not sought for surrogacy is punishable under the Indian Law.
TO
Any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of their Australian State of residence permits prohibits overseas commercial surrogacy arrangements and will provide appropriate travel documents to the child for accompanying the surrogate parents.    Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian Law.
 
Outstanding issues for the Consulate General to clarify:
1.      Should the relevant person apply for an entry visa or medical visa?
2.      Should only the biological commissioning parent apply for this visa, and the other apply for a normal tourist visa?
3.      What is the penalty under Indian law for entering into a surrogacy arrangement under any other visa not sought for surrogacy?
I look forward to hearing from you regarding the above.
 
Yours sincerely
 
Sam Everingham
President
Surrogacy Australia
+61 411 871 800