Sunday, July 29, 2012

Keim criticises proposed surrogacy changes

Human Rights Medallist Stephen Keim, SC, who had previously acted for Dr Muhamed Haneef, has criticised the proposed Queensland surrogacy changes, saying that they breach a series of Australia's international human rights obligations.

Mr Keim, who wrote in his role as President of Australian Lawyers for Human Rights, said that the proposed changes:


... have the effect of jeopardizing the welfare of children born by use of surrogacy by using a discriminatory process to subject parents of certain children to criminal penalty.


Urging Queensland Attorney-General Jarrod Beijie to "rethink" the proposals, Mr Keim said:


Further to the potential contravention of international treaties and public policy issues listed above, the changes would, of themselves, have detrimental impacts upon the human rights of Queenslanders. Not only will the laws marginalise groups within society, the people of Queensland will lose faith and trust in a Government that clearly stated before the election that laws relating to surrogacy will not change.


Saying that the proposed changes "are unlikely to be effective" and that they would likely breach section 22 of the Sex Discrimination Act, Mr Keim endorsed my criticism of the proposed changes:


Further to the above contravention of the international treaties to which Australia is a signatory, ALHR supports the public policy arguments against the proposed changes as outlined in Mr Stephen Page’s letter to the Attorney-General and Minister for Justice dated 28 June 2012. A copy of Mr Page’s letter is annexed hereto.



In summary of Mr Page’s letter:


ALHR agree that after granting a certain class of people rights, Parliament will be removing these same rights;
ALHR agree that limiting those able to enter into surrogacy arrangements does not change the desire to have children despite differences in relationships or sexuality;
For the reasons set forth in the preceding paragraph, the proposed changes are unlikely to be effective. People whose rights are restricted by the proposed changes and who intend to be parents may move interstate or internationally where it is legal or alternatively they will do it without knowledge of authorities;
The proposed changes appear to legislate for conduct that would otherwise be and may still be in breach of section 22 of the Sex Discrimination Act which makes it unlawful for a person to refuse to provide services to
another person on the ground of the other person’s marital status (We note that s. 22 is expressly binding on the Crown in right of a State); and
ALHR agree that the proposed changes target an already vulnerable group. As LGBTI people already feel marginalized by society, they will feel they are being targeted by the wider community because they are perceived as being different.


I have set out the letter from Mr Keim and co-signatories Alex McKean and Shane Hobill to the Attorney dated 18 July in its entirety:


18 July 2012

The Honourable Jarrod Bleijie MP
Attorney-General and Minister for Justice
State Law Building
50 Ann Street
BRISBANE  QLD  4000

By email:  attorney@ministerial.qld.gov.au


Dear Mr Bleijie


Re: Objections to the proposed amendments to the Surrogacy Act 2010

Introduction

We write on behalf of Australian Lawyers for Human Rights (“ALHR”) to urge you, as the Attorney-General and Minister for Justice, to reconsider the Government’s plan to amend the Surrogacy Act 2010.  Our concerns have arisen out of recent news articles and reports that have been circulating through the media.


About ALHR

2.    ALHR was established in 1993 and is a network of Australian law students, lawyers and legal academics active in the practice and promotion of international human rights law standards and principles in Australia. ALHR has a national membership of over 2000 people, with active National, State and Territory committees. Through training, information, submissions and networking, ALHR promotes the practice of human rights law in Australia and its membership collectively holds extensive experience and expertise in international human rights law policy and advocacy in Australia.
Current legislation

As it stands, under the Surrogacy Act 2010, any person, regardless of his or her relationship status, will be able to enter into a surrogacy arrangement. Intended parents may be a married or de facto couple (including same-sex de facto couples) or a single person.



The proposed amendments
The proposed amendments will repeal provisions that enable same sex couples, de facto couples of less than two years and singles from entering into surrogacy arrangements in order to start a family and criminalise those that choose to do so.


ALHR considers that the proposed amendments to the Surrogacy Act 2010 would legislate for discrimination and inequality in breach of international human rights standards. 


International treaties

International Covenant on Economic, Social and Cultural Rights (“ICESCR”)[1]

It is submitted that the proposed amendments would discriminate against members of the community on the bases of sexual orientation, marital and family status and against women so as to be in breach of the International Convention on Economic, Social and Cultural Rights (ICESCR) to which Australia became a signatory on 18 December 1972 and, subsequently, ratified on 10 December 1975.


For reasons which are set out below, ALHR submits that the proposed amendments are incompatible with and in contravention of the ICESCR and other international human rights instruments under which Australia also has legal obligations. Specifically, it is submitted that the proposed amendments will breach the following articles of the ICESCR, namely, articles 2(2), 3, 4, 10(3), 12(1).


Article 2


Article 2(2) of the ICESCR states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

As explained by the Committee on Economic, Social and Cultural Rights, “other status” includes sexual orientation[2], marital and family status[3] and health status[4].


Discriminatory Effect of Proposed Amendments:

The Amendments will breach Article 2(2) by discriminating against de facto and same sex couples of less than two years standing and against lesbian co-mothers by not recognizing them as parents.




Article 3


Article 3 of the ICESCR states:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

Discriminatory Effect of Proposed Amendments:

The Amendments will offend Article 3 as they discriminate against men and women in same sex relationships and hetero de facto relationships of less than two years standing as well as single women and men. The proposed amendments will directly discriminate against women by ceasing to recognise lesbian co-mothers as “parents”.


Article 4


Article 4 of the ICESCR states:

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.


Discriminatory Effect of Proposed Amendments

ALHR is concerned that the proposed amendments involve discriminatory conduct in breach of the ICCESR that are neither compatible with the protected rights nor solely for the purpose of promoting the general welfare in a democratic society.


17.  Article 10 (3):

Paragraph 3 of Article 10 of the ICESCR states:

The States Parties to the present Covenant recognize that:

3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions …

18.  Article 12 (1):

Article 12 paragraph 1 of the ICESCR states:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

19. The Committee on Economic Social and Cultural Rights General Comment No 14       at paragraphs 8 and 14:

8. The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference … [5]

Effect of Proposed Amendments

The proposed amendments have the effect of jeopardizing the welfare of children born by use of surrogacy by using a discriminatory process to subject parents of certain children to criminal penalty. The same process of discrimination is used to prevent access to the surrogacy process which may be properly considered to be an aspect of the right to health protected by the convention.


Convention on the Rights of the Child (“the ICRC”)

The amendments have implications for the registration of birth of the children born by the surrogacy arrangements which are proposed to be criminalised. Even the amendments do not prevent the details of the surrogacy arrangements being reflected in the birth certificate, the practical result of making the arrangements unlawful will be that that such details will not be recognised on the child’s birth certificate. This will have the effect of depriving the child of a right to having their parents recognised and will breach various articles of the ICRC including:



Article 7(1):

1.     The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Article 14(2):

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

Article 18(1):

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

Universal Declaration of Human Rights (“UDHR”)

The proposed amendments to the Surrogacy Act discriminate against sexual orientation, marital and family status under the Universal Declaration of Human Rights (“UDHR”) adopted by the General Assembly on 10 December 1948 to which Australia is not only a signatory but a founding party.


The proposed amendments contravene this treaty, in particular Articles 2 and 16 (1) for reasons provided below.


Article 2 states that:


Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

24.  Article 16 further states:

(1)   Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Discriminatory Effect of Proposed Amendments

 Article 16 (1) of the UDHR allows men and women the right to found a family.  Article 2 provides that all rights and freedoms set out in the Declaration may not be the subject of discrimination the basis of sex or other status. 


ALHR considers that the proposed legislation will be contravening the UDHR on the basis that it discriminates against those of the same sex, de facto relationships of less than two years and singles to access a surrogate to start a family.


Endorsement of letter

Further to the above contravention of the international treaties to which Australia is a signatory, ALHR supports the public policy arguments against the proposed changes as outlined in Mr Stephen Page’s letter to the Attorney-General and Minister for Justice dated 28 June 2012.  A copy of Mr Page’s letter is annexed hereto.


In summary of Mr Page’s letter:


ALHR agree that after granting a certain class of people rights, Parliament will be removing these same rights;
ALHR agree that limiting those able to enter into surrogacy arrangements does not change the desire to have children despite differences in relationships or sexuality;
For the reasons set forth in the preceding paragraph, the proposed changes are unlikely to be effective. People whose rights are restricted by the proposed changes and who intend to be parents may move interstate or internationally where it is legal or alternatively they will do it without knowledge of authorities;
The proposed changes appear to legislate for conduct that would otherwise be and may still be in breach of section 22 of the Sex Discrimination Act which makes it unlawful for a person to refuse to provide services to another person on the ground of the other person’s marital status (We note that s. 22 is expressly binding on the Crown in right of a State); and
ALHR agree that the proposed changes target an already vulnerable group.  As LGBTI people already feel marginalized by society, they will feel they are being targeted by the wider community because they are perceived as being different.


Further to the potential contravention of international treaties and public policy issues listed above, the changes would, of themselves, have detrimental impacts upon the human rights of Queenslanders. Not only will the laws marginalise groups within society, the people of Queensland will lose faith and trust in a Government that clearly stated before the election that laws relating to surrogacy will not change.


Accordingly, ALHR encourages the government in which you are Attorney-General to rethink these proposed changes. 


31. Finally, ALHR would request an opportunity for representatives of ALHR, Mr Page, and a member of Surrogacy Australia, to meet with you to allow the issues raised herein to be further outlined.

We look forward to hearing from you.

Regards,



Stephen Keim SC
President, Australian Lawyers for Human Rights

Alex McKean
Sharne Hobill
Queensland Convenors, Australian Lawyers for Human Rights

Wednesday, July 25, 2012

Standing up for equality

On Sunday I stood up with other Queenslanders such as Shelley Argent from PFLAG, Farmer Dave, and psychologist Paul Martin, and said that I would be taking a stand for equality.

If there has been one thing that has fired me up as a lawyer over the years, it has been when people have not been treated equally. We should all be presumed to be equal before the law, but unfortunately that does not always happen. Too often I have had to stand up for clients, because they have been oppressed by others- occasionally by laws, but more often by another person, for example, their violent ex.

The Queensland government is planning to reverse laws so that certain intended parents will not only no longer be eligible to be parents under surrogacy arrangements, but could be jailed for up to 3 years if they pursue their dream. In the words of one of my clients, it is a case of Government playing God. If passed, this will be the first time that I am aware of in the history of our country when rights that have been granted to a group have then been reversed- because of the characteristics of that group.

Don't get me wrong. I don't have anything against the Queensland Government. It was, after all, democratically elected. The Premier and I, for example, share a strong belief that domestic violence is wrong. He made sure, as Brisbane's Lord Mayor a couple of years ago, that funding was made available to enable a few White Ribbon Ambassadors including me to meet in Townsville to help give the Department of Communities feedback about the proposed domestic violence laws. Those proposed laws are now the Domestic Violence and Family Protection Act 2012, the last piece of legislation passed by the Bligh government, but with strong LNP support.

But I do have something against a policy that gives government the right to choose who can and can't be parents. It was because of that reason that I attended and spoke at the launch of Queenslanders for Equality. Shortly afterwards I discovered, to my surprise, that I had become the convenor! This was not a position I sought, but was thrust upon me. Now I have to do my best so that the rights of all can be protected.

Monday, July 16, 2012

Don't let the facts get in the way of a good story

My grandmother would admonish my grandfather for correcting details of her highly entertaining stories by saying: "Don't let the facts get in the way of a good story." This statement is a fair summary of the e petition brought by Ms Wendy Francis of Queensland's Australian Christian Lobby to support the proposed changes to Queensland's Surrogacy Act.

A reminder...

 The proposal by the Queensland government is to:



The ACL's e petition

I have previously blogged about the competing e petitions- the one by Wendy Francis, and the other by Paul Martin.

Paul Martin's e petition

This e petition, numbered 1919-12, states:

Queensland residents draws to the attention of the House the Newman Government's stated plan to amend the Surrogacy Act 2010, repealing provisions that enable same sex couples, de facto couples of less than two years and singles from entering into surrogacy arrangements in order to start a family.  Any such amendments would legislate for discrimination and inequality; it would further take our State backwards in relation to human rights.
Your petitioners, therefore, request the House to call upon the Premier and the Attorney-General to not proceed with any proposals to amend the Surrogacy Act 2010.

Wendy Francis' ACL's e petition

This e petition, numbered 1923-12, states:

 
Queensland residents draws to the attention of the House:
·         that the Surrogacy Act 2010 allows single people or same sex couples to obtain a child by altruistic surrogacy, thereby depriving the child of either a mother or a father;
·         that it is an offence against a child to wilfully deprive that child of the knowledge and care of their own parents, as stated in the International Convention on the Rights of the Child: “The child shall, wherever possible, grow up in the care and under the responsibility of their parents … a child of tender years shall not, save in exceptional circumstances, be separated from their mother”;
·         that society has caused grave suffering to children in the past by depriving them of their right to both a mother and a father: whether by preventing knowledge of their origins (as with children of anonymous sperm donors) or by compelling them to live without their mother (as with babies removed from unwed mothers) or by the practice of the Aboriginal “stolen generations”;
·         that the “equal right” of every child to enter the world with both a mother and father must take priority over the alleged “equal right” of single people or same sex couples to obtain a child by surrogacy.
Your petitioners, therefore, request the House to repeal all laws and amend any regulations that allow a single person or a same sex couple to obtain a child by surrogacy.

Myth 1: Surrogacy is akin to adoption

Quite simply. although surrogacy and adoption deal with children, they're different. Ms Francis' e petition argues that a child will lose out by not having both a mother and a father. It does this by saying that the child would be "deprived" of both a mother and a father. This argument is flawed because instead of being deprived, by being conceived the child will gain a parent or parents that it did not otherwise have.

Adoption after all is of a child who, often in trying circumstances is given up by his or her parents, and then put into the care of an intended parent or parents.

Myth 2: That there is a right for every child to enter the world with both a mother and a father

Who says? Where is this alleged "right"? It is not a requirement of our law now. It has been the law now for many years that single women and lesbians can access IVF clinics, without the need of a man as the father to be. If the clinics refuse treatment, they breach the Sex Discrimination Act, Federal legislation designed to implement the Convention on the Elimination of all forms of Discrimination Against Women. Women have "rights" under both the Sex Discrimination Act and under the Convention.

It is perfectly legal for a single woman or a lesbian couple to self-inseminate by using sperm from a donor, such as a friend. The proposed changes make no difference to that.

The International Convention on the Rights of the Child does not set out such a "right" to enter the world with a mother and a father, but says:

Article 2
 
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. 

Article 6
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.


Myth 3:   Quoting the International Convention on the Rights of the Child

It helps to get your facts right. Ms Francis purports to quote the International Convention on the Rights of the Child. The phrase quoted in the e petition purportedly from the Convention,“The child shall, wherever possible, grow up in the care and under the responsibility of their parents … a child of tender years shall not, save in exceptional circumstances, be separated from their mother” does not come from the Convention, but from the 1958 Universal Declaration of the Rights of the Child.  

In any case, reflecting the language of that era, the Declaration refers to "child" as "his" parents, and "his" mother, not "their". 


The phrase referred to, in which the tender years doctrine has been set out, has been overtaken by the Convention in which the "best interests of the child" is enshrined.This phrase in turn has been adopted in Australian legislation, such as the Family Law Act and the Child Protection Act. The Convention does NOT refer to the tender years doctrine, but says:


States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.


Myth 4: Quoting in context

Ms Francis does not mention other parts of that Declaration:

Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family....

 The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration....

 The child shall be protected from practices which may foster racial, religious and any other form of discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, and in full consciousness that his energy and talents should be devoted to the service of his fellow men. (emphasis added)

Myth 5: The International Convention on the Rights of the Child creates offences

This is what Ms Francis says:

That it is an offence against a child to wilfully deprive that child of the knowledge and care of their own parents, as stated in the International Convention on the Rights of the Child...
  
The Convention does not create offences. That is untrue. 

Article 5.1 of the Convention states:

 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.


Article 9.1 of the Convention talks about the removal of a child from parents, in circumstances that are completely divorced from surrogacy:


States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.(emphasis added)
The Surrogacy Act recognises the primacy of the birth mother as the mother of the child. A parentage order cannot be made in favour of an intended parent or parents without the consent of the birth mother and her partner. There is no removal against their will. This applies irrespective of whether the birth mother or her partner have any genetic relationship to the child.

Myth 6: The “equal right” of every child to enter the world with both a mother and father must take priority over the alleged “equal right” of single people or same sex couples to obtain a child by surrogacy.

As set out above, there is no "right" to enter the world with both a mother and a father. There is a "right" not to be discriminated against, either for the best interests of the child under the International Convention on the Rights of the Child, or other human rights treaties Australia has signed up to, and under the Sex Discrimination Act. As I have pointed out elsewhere, the proposed discrimination appears to be in breach of those Conventions, points raised as long ago as 2009 by the then President of the Queensland Law Society, and now LNP Member for Ipswich Ian Berry, and will likely fall foul of the Sex Discrimination Act. The President of the Queensland Law Society, Dr John de Groot, not a man given to hyperbole, talks of the proposals as a "miscarriage of justice"


Myth 7: The Surrogacy Act process will cause suffering to children by being closed and secretive


Sections 5 and 6 of the Surrogacy Act set out guiding principles which emphasise openness and honesty:
Section 5: The main objects of this Act are—
(a) to regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and
(b) in the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result—
(i) to establish procedures to ensure parties to the arrangement understand its nature and implications; and
(ii) to safeguard the child's wellbeing and best interests.
Section 6: (1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
(2) Subject to subsection (1), this Act is to be administered according to the following principles—
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that—
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child's birth parentage; and
(iii) promotes the development of the child's emotional, mental, physical and social wellbeing;
(b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of—
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become the child's parents as a result of a transfer of parentage;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.

Section 5 of Mr Springborg's Bill, the one that the Attorney said would be the model of the Government's changes, is almost identical to sections 5 and 6 of the Surrogacy Act:

(1) The main objects of this Act are—
(a) to regulate particular matters in relation to surrogacy
arrangements, including by prohibiting surrogacy
arrangements except in particular circumstances; and
(b) to provide for the court-sanctioned transfer of parentage
of a child born as a result of a surrogacy arrangement in
those particular circumstances; and
(c) in the context of a surrogacy arrangement that may
result in the court-sanctioned transfer of parentage of a
child born as a result—
(i) to establish procedures to ensure parties to the
arrangement understand its nature and
implications; and
(ii) to safeguard the child’s wellbeing and best
interests.
(2) This Act is to be administered according to the principle that
the wellbeing and best interests of a child born as a result of a
surrogacy arrangement, both through childhood and for the
rest of his or her life, are paramount.
(3) Subject to subsection (2), this Act is to be administered
according to the following principles—
(a) a child born as a result of a surrogacy arrangement
should be cared for in a way that—
(i) ensures a safe, stable and nurturing family and
home life; and
(ii) promotes openness and honesty about the child’s
birth parentage; and
(iii) promotes the development of the child’s emotional,
mental, physical and social wellbeing;
(b) the same status, protection and support should be
available to a child born as a result of a surrogacy
arrangement regardless of—
(i) how the child was conceived under the
arrangement; or
(ii) whether there is a genetic relationship between the
child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become
the child’s parents as a result of a transfer of
parentage;
(c) the long-term health and wellbeing of parties to a
surrogacy arrangement and their families should be
promoted;
(d) the autonomy of consenting adults in their private lives
should be respected.

The very approach under the Surrogacy Act and Mr Springborg's then Bill is contrary to the concern of Ms Francis- openness and honesty, so that children know where they come from. This is also consistent with sperm and egg donations in Queensland- where the child will know the genetic history of the donor, and can find out who the donor is after turning 18.


The irony of Ms Francis' position is that if the amendments proceed, it is likely that more Queenslanders will access surrogacy clinics in India than do now (although it is an offence in Queensland to do so), where the genetic knowledge of and identity of the sperm donor is not known, something that Ms Francis rightly decries.

Myth 8: The Surrogacy Act causes pain by forcefully removing children from their mothers

Ms Francis refers to forced adoptions and the Stolen Generation. The realities of both those shameful episodes were:

  • they occurred without the informed consent of the mothers- that is not the case under the Surrogacy Act, as I set out above. Surrogates, or as the Act calls them "birth mothers" know who the intended parents are. The Surrogacy Act, for example, says that birth mothers can manage their pregnancy and birth, just like other mothers.
  • they occurred with an overlay of moral righteousness, including the complicity of Governments,  about the unfitness of the mothers to care for the children. That is not suggested nor practised under the Surrogacy Act.
  • they were surrounded by acts of secrecy, which as I set out above does not reflect the practice of surrogacy in Queensland.
  • they reflected the ongoing desperation of people to have children. That reality remains, and is not confined to heterosexual couples.

How Queensland's proposed surrogacy changes breach Australia's human rights obligations

I have been asked to set out how the proposed changes to Queensland's Surrogacy Act 2010 will breach Australia's human rights obligations. When looking at the treaties below, it appears that the proposed changes breach Australia's obligations under:


  • the International Convention on the Rights of the Child
  • the Universal Declaration on Human Rights
  • the International Covenant on Civil and Political Rights
  • the International Covenant on Economic, Social and Cultural Rights
  • the International Convention for the Elimination of all forms of Discrimination Against Women

Australia has signed a number of human rights treaties. Signing the treaties is Australia saying to the rest of the world that it is prepared to be bound by the treaties. However, signing the treaties is not the same as saying the obligations under the treaties are part of Australian law. That only happens when laws are passed enacting the obligations under the treaty.

As was seen in the case of Nick Toonen, even if the law of a State is discriminatory, if it is in breach of Australia's fundamental human rights obligations it can be overturned. Mr Toonen was the manager of the Tasmanian AIDS Council. He complained to the United Nations Human Rights Committee about Tasmania's anti-sodomy laws which, he said, impacted on his right to privacy and were in breach of Australia's fundamental human rights obligations. Mr Toonen was successful, resulting in the passage by the Keating government of the Human Rights (Sexual Conduct) Act 1994, which provides:

Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

A reminder...

 The proposal by the Queensland government is to:



Relevant treaties

International Convention on the Rights of the Child

Breach of Article 2.2

Article 2.2 provides:

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.  (emphasis added)
One might think that if the laws are passed banning these surrogacies that they will therefore stop. Aside from  any issue to do with IVF clinics, it is clear that a belief that such surrogacies will not happen is foolish, and contrary to evidence.

In essence, there are two medical forms of surrogacy: traditional and gestational. Traditional means that the surrogate is the genetic mother of the child. In other words, she can be impregnated at home, using a turkey baster or syringe. Doctors are not required. Gestational means that there is not genetic link by the surrogate with the child- she gestates the child, without the genetic link. This form necessarily involves medical intervention. It is likely, in light of what has happened in Queensland in the past, that traditional surrogacies will continue, legal or not.

Before the enactment of the Surrogacy Act 2010, an all party committee chaired by former Attorney-General Linda Lavarch inquired into altruistic surrogacy in Queensland. It concluded:

The committee has concluded that whilst prohibition may have dissuaded some, it has not prevented altruistic surrogacy occurring in Queensland … To promote the best interests of the child, the committee wants to ensure that children born of altruistic surrogacy are not stigmatised by the manner of the conception and not disadvantaged by the lack of legal recognition of their intending parents, for example, in terms of child support or inheritance.  The committee’s proposal for a specific mechanism to enable the transfer of legal parentage is an expression of this principle.
 
From 1988 to 2010 Queensland's law governing surrogacy was the Surrogate Parenthood Act 1988. It criminalised all forms of surrogacy, in Queensland or out of Queensland, but as the committee concluded, surrogacy nevertheless happened. Given that doctors did not provide IVF for gestational surrogacy, the only form of surrogacy that could happen was traditional.

The case of Re Evelyn was the nightmare case of a traditional surrogacy gone wrong, ending up in a devastating Family Court case. The significance of Re Evelyn was that at the time the child was conceived, using a Queensland father's sperm and a South Australian mother's egg, surrogacy was illegal in both South Australia and Queensland, but nevertheless happened, and as far as I am aware, no one was prosecuted.

Therefore, the evidence demonstrates that children will continue to be conceived via traditional surrogacy, and no doubt in breach of   the proposed provisions. Those children will never be able to call their parents as their parents as a matter of law. This is because the illegal surrogacy will not enable a parentage order to be made. Nor can an adoption order be made (both because it would be approving of an illegal act, and also because the Adoption Act 2009 (Qld) specifically discriminates against same sex couples and singles), and nor does a Family Court order denote parentage.

For those children born to those arrangements, their parents will as a matter of law be the surrogate, and if she has a husband or a male partner, that husband or male partner, not the intended parents. This is due to the effect of presumptions under the Status of Children Act 1978 (Qld).

Therefore:

  1. Children will be born to intended parents where the surrogate and her partner, not the intended parents will be recognised at law as the parents.
  2. The intended parents will not be the parents of the children as a matter of law.
  3. The reason that the intended parents will not be recognised is because of either their sexuality or because of their relationship status (not married, or single) or both.
  4. this would amount to discrimination against the children in breach of Article 2.2.
Breach of Article 3.1

Article 3.1 provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.   (emphasis added)

The proposals, by not recognising the intended parents,resulting in discrimination against children, is clearly not in the best interests of children, and are therefore in breach of Article 3.1. What impact can there be on a child who knows and loves their parents, to be reminded regularly that their parents are not recognised by the State, and that therefore there is something wrong with the child? This is a return to legitimate and illegitimate children, a distinction removed in 1978 because of the adverse stigma on children with the passage by the Bjelke-Petersen government of the Status of Children Act.

Breach of Article 6.2

Article 6.2 provides: 

States Parties shall ensure to the maximum extent possible the survival and development of the child.
The child may well suffer significant psychological problems by not being able to properly identify and name his or her parents, a situation that neither the child nor the child's parents can fix.


Breach of Article 7.1

Article 7.1 provides:

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 

The child will be left knowing that his or her parents are as a matter of law someone else entirely, and that he or she can do nothing to fix it.

Possible breach of Article 8.1

Article 8.1 provides: 

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

It is arguable that the failure to allow the child to recognise the intended parents as his or her parents, either through a process of surrogacy or adoption means that the child's identity is not able to be preserved.

Universal Declaration of Human Rights

The Universal Declaration was adopted by the United Nations General Assembly in 1948. Australia's then External Affairs Minister (and former High Court judge) "Doc" Evatt played a key role in the process leading up to the adoption of the declaration.

Breach of Article 1

Article 1 speaks for itself:

All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Article 2 provides:

 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. (emphasis added)


Breach of Article 7:


All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

International Covenant on Civil and Political Rights

The Covenant follows on from the Universal Declaration of Human Rights, and entered into force in Australia in 1980, and in respect of Article 41 in 1993.

Article 2.1:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2.3:


3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

Article 3:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 24.1:

 Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

It is questionable as to whether this article might have been breached by the proposals.


Without a doubt, the surrogacy proposals would be in breach of Article 26, because those proposals are to restrict access to surrogacy based on sexuality or relationship status:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

International Covenant on Economic, Social and Cultural Rights

Breach of Article10:


The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses....

Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. 

Convention for the Elimination of all forms of Discrimination Against Women

Article 5 provides in part:


States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
It is arguable that the proposals are in breach of this Article, because they are based on the model that every child deserves a mother and a father.  The proposals contain customary, stereotypical views of what men and women should do with child rearing, and in particular:

  • it is not optimal for single men to raise children alone
  • it is not optimal for single women to raise children alone
  • it is not optimal for a lesbian couple to raise children alone
  • it is not optimal for a gay couple to raise children alone,
but so bad that those people should be banned from seeking surrogacy and be subjected to legal prosecution and imprisonment; as opposed to those in heterosexual relationships who will be able to proceed and obtain parentage orders.

Social science research certainly indicates that the care provided for children by same sex couples is no worse than that provided by heterosexual couples.


Article 16 provides, in part:

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:...

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

It is arguable that the Queensland Government's proposals:

  •  are in breach of the rights of lesbian co-parents to be recognised as "parents" within item (d);
  • by virtue of sexuality and relationship status breach item (e) for women who are intended parents, whether as singles, or as part of a lesbian couple.

Tuesday, July 10, 2012

Qld: battle of the surrogacy e petitions

Queensland got more confusing for those wanting to sign a petition about surrogacy, as there are now competing e petitions!

In the pink corner is the e petition by psychologist Paul Martin, sponsored by Labor MP Jackie Trad, that calls for the scrapping of changes to the Surrogacy Act, as the changes would lead to discrimination, or in the words of the President of the Queensland Law Society, Dr John de Groot, a "miscarriage of justice". That e-petition is petition 1919-12 called Amendments to Surrogacy Act 2010. I urge my fellow Queenslanders to sign that e petition.

In the black and white corner is the e petition by Australian Christian Lobby convenor Wendy Francis, sponsored by LNP MP Trevor Watts, which speaks for itself:

that the Surrogacy Act 2010 allows single people or same sex couples to obtain a child by altruistic surrogacy, thereby depriving the child of either a mother or a father;
·         that it is an offence against a child to wilfully deprive that child of the knowledge and care of their own parents, as stated in the International Convention on the Rights of the Child: “The child shall, wherever possible, grow up in the care and under the responsibility of their parents … a child of tender years shall not, save in exceptional circumstances, be separated from their mother”;
·         that society has caused grave suffering to children in the past by depriving them of their right to both a mother and a father: whether by preventing knowledge of their origins (as with children of anonymous sperm donors) or by compelling them to live without their mother (as with babies removed from unwed mothers) or by the practice of the Aboriginal “stolen generations”;
·         that the “equal right” of every child to enter the world with both a mother and father must take priority over the alleged “equal right” of single people or same sex couples to obtain a child by surrogacy.

That e petition is called 1922-12 The best interests of the child in altruistic surrogacy. I urge my fellow Queenslanders NOT to sign that e petition. I will dissect the mistakes and falsehoods of Wendy Francis' e petition in another post.

Interview with 4ZZZ

Today I was interviewed by 4ZZZ's Brisbane Line about the proposed Queensland Surrogacy Act changes. Click here to access the interview.

Qld Surrogacy Act changes: "a miscarriage of justice": Law Society

The Queensland Law Society has highlighted two major issues with proposed changes to the Surrogacy Act
2010 – significant legislative inconsistencies and discrimination.
The changes include redefining ‘intended parent and couple’ to refuse access to surrogacy arrangements
for same-sex couples, single people and those who have been in a de facto relationship for less than two
years.
President Dr John de Groot said it wasn’t a case of wading into recent debate on same-sex couples’
status but ensuring legislation was fair and just and doesn’t infringe human rights.
“This means ensuring clarity in workable laws and freedom from discrimination,” Dr de Groot said.
“The proposed changes to the Surrogacy Act can put people in a catch-22 situation.
“For example, a doctor who is approached to assist a same-sex couple to access a surrogacy
arrangement may be an accessory to a criminal offence under state law if they assist, and if they refuse,
unlawfully discriminating against the same-sex couple according to federal law.
“The proposed changes allow the government to set different rules for different people and discriminate in
a way that businesses and individuals in our society may not.
“If companies or private individuals discriminate against people on the basis of their relationship status,
they are violating two state and two commonwealth laws and a range of internationally recognised human
rights.
“The current surrogacy law requires no change as it is consistent with other legislation and is nondiscriminatory

Monday, July 9, 2012

The innate desire to be a parent

One of the things that I have always been amazed about in being a family lawyer is the innate desire of many of us to be parents, and the desire, no matter how badly at times that we screw up as parents, to be better parents for the sake of our children.

When I started undertaking surrogacy work several years ago, I was struck by the desperation of people to undertake surrogacy. It was extremely moving to talk with clients who were seeking to have children, that this was part of their life journey, and that they would move heaven and earth to achieve the dream of parenthood.

Despite the differences at times being played out in commentary and the media that there is some huge differnece between gay and lesbian or single intended parents, as opposed to married couples who want to achieve the dream of parenthood, or those in heterosexual de facto couples, what impressed me was that in reality, these differences were really a chimera, a mirage.

The reality is that some people, whether in a relationship or alone, and irrespective of their sexuality, want to have kids, that this is an essential part of who they are, and to deny this reality is to emphasise ignorance over knowledge.

The other realities in dealing with surrogacy, or adoption, is that anyone undertaking these journeys does not do so lightly or flippantly, and has to deal with a myriad of steps, decisions, costs and delays. Each is the journey of last resort- when there are no other options left to achieve the dream of being a mum or dad. I have never seen anyone decide on a whim to achieve parenthood this way.

A fair description of that dream is in this blogpost, Why having a family some day is important to me,  by Dylan Carmichael. Although he describes it from his perspective, namely that of a gay man, the desire to become a parent I think is well described, and applies to anyone who wants to become a parent. Thank you Dylan for writing your post.

Courier-Mail publishes my comments

Last week I was interviewed by Brisbane's Sunday Mail for an article about a gay couple who had had twins through surrogacy, which would be an offence under the Queensland Government proposals.

I mentioned to the journalist as to my concerns about the proposed Queensland laws would fail the Sex Discrimination Act, and that they were therefore in my opinion futile. She was interested in that issue, and next thing I know it was today's lead article on page 3 of the Courier:

http://www.couriermail.com.au/news/queensland/surrogacy-fix-would-breach-federal-laws/story-e6freoof-1226420509684

Friday, July 6, 2012

E-petition to stop the discriminatory surrogacy laws

It is vital that if you are of the view, as I am that, Queensland should not discriminate on the basis of sexuality or gender to decide who can and cannot be parents, you should take action to let politicians know how you feel.

I will use here the words of two clients:

  • the client who told me that he regrets having voted for Campbell Newman, and feels "soiled",  "cheated" and "lied to". In my many years of family law, the expressions by clients of anger and despair about the actions of politicians, especially the feeling of being "lied to" is the strongest I have ever seen.
  • the client who told me that this is a case of the "Government playing God" in determining who can and cannot be parents. In other words, picking winners and losers. "Winners" are married couples or those in heterosexual de facto relationships of over 2 years. "Losers" are same sex couples, singles, and those in heterosexual de facto couples of less than 2 years. The reality is that all of us and all intended parents are "losers" because the innate desire to have children is with many of us, and to decide on some rule, without prior consultation with the people as to who is excluded, in breach of our international human rights obligations, means that the Government could at any other time devise another arbitrary rule again excluding people it doesn't like. To say who can or cannot have a child in a purely arbitrary manner is cruel.

There are a number of ways that you can help:

  1. If you are a Queensland resident, sign the e petition. There are now over 2000 signatures. More are needed! Do not accept the outcome as inevitable nor pre-destined. The more people who take action and tell politicians that, they are opposed to the changes, the better. The e-petition can be found here: http://www.parliament.qld.gov.au/work-of-assembly/petitions/e-petitions
  2. Join the Facebook group, and take up the hints as to what action you can take:  http://www.facebook.com/groups/359599047447237/
  3. Email Campbell Newman and let him know what you think. Obviously keep it respectful. premiers.master@premiers.qld.gov.au 
  4. Email the Attorney-General, Jarrod Bleijie: attorney@ministerial.qld.gov.au and let him know what you think.
  5. Phone and then see your local State MP. If you don't know who it is, search here: http://www.parliament.qld.gov.au/members/current/list . You can search by name or name of electorate, gender, and party.

Wednesday, July 4, 2012

Appointment to leading surrogacy committee

With a great deal of humility and honour, I have accepted an appointment as a member of one of the world's leading surrogacy committees.

I have been appointed as a member of the Executive Council of the American Bar Association's Family Law Section's Assisted Reproductive Technology Committee.

Despite the mouthful, this is the surrogacy committee of the American Bar Association, the world's largest, richest and most powerful lawyers' association in the world.

I have been appointed as one of two international members of the Executive Council, which is to run the ART committee. It is both humbling and a recognition by my international peers of my abilities.

The appointments come at a critical time, as there are currently moves to have a Hague convention to govern international surrogacy.


The council and committee are headed by Steve Snyder (pictured), a leading surrogacy lawyer from Minneapolis.