Sunday, November 30, 2014

Stage 1 of the surrogacy grand tour

Recently I undertook three weeks away from the office, travelling almost 40,000 km in the process, as the followers of my Twitter feed and Facebook feed would already be aware.

Stage 1 of the surrogacy grand tour was in Sydney. I attended there for the Australian national family law conference. As usually happens with such conferences, I enjoyed stimulating topics by interesting speakers, and caught up with friends and colleagues, some of whom had come from the other side of the world.

What I had not expected to occur was another media fire storm, albeit thankfully not on the same scale as Baby Gammy. The ABC had been working on a story about an Australian couple who had been having twins in India some years before, but decided that they only wanted one of the twins because it was the "wrong" gender. The issue was raised by Family Court Chief Justice Diana Bryant, who said that the child had allegedly been taken care of by family, but that consular staff believed that money had changed hands, which meant of course that there was baby trafficking occurring.

Then Chief Federal Court Judge John Pascoe took the matter further. His Honour spoke at length about surrogacy. He had a dramatic prop for his speech. It was a box, not much bigger than a shoe box. Babies packed in boxes like this one had been found in a baby trafficking racket in Indochina. His Honour sought to emphasise that the most vulnerable, the children, need to be the ones protected most in any surrogacy arrangement. His Honour spoke of the twins, born to a Norwegian couple, who  had been unable to leave India. These children were born Stateless and were not recognised in either India or Norway!A disaster that should have been avoided by getting legal advice in both places before starting out- but still a disaster for the intended parents, but especially for the children.

Following these speeches, the media again took a keen interest in surrogacy. I found myself in the thick of it. In one day I had:


  • four TV interviews: ABC 24, ABC TV news, SBS World News, The Project (Ten network)
  • 3 radio interviews: AM (ABC Radio National), ABC Darwin, Checkpoint (NZ Radio)
  • 1 print/web interview: The Guardian Australia 
I hope it makes a difference, and that we are able to have a regime of regulation in this country that is able to protect all concerned- intended parents, surrogates, their partners, donors, their partners, and above all the children, but enable people to achieve their innate desires to become parents. 

And the surprise of the interviews? Having the Family Court tweet that in my interview with ABC 24 I had accurately related the state of surrogacy laws in Australia. 

An action packed week: surrogacy in three States in one week

In one 7 day period, from the Thursday the week before last to Thursday last week, I appeared in courts in three States about surrogacy matters. Great for Qantas, but by the end of it I wondered which way was up.

On the Thursday before last I appeared in the County Court of Victoria in Melbourne about a surrogacy matter.

Last Monday I appeared in the Childrens Court of Queensland in Brisbane about a surrogacy matter.

On last Thursday, the night after I presented to the Law Society of South Australia about surrogacy, I appeared before the Youth Court of South Australia about surrogacy. 

What was unusual about the Adelaide appearance is that in every other State and Territory I have a right of appearance due to my being admitted in Queensland, and having a current practising certificate (i.e. that I am fit to practise and have my professional indemnity insurance paid up. In my case the practising certificate is issued by the Queensland Law Society). This is because I am an Australian lawyer. 

South Australia is different. An interstate lawyer such as myself can appear in a South Australian court, but can only appear there (if not having an office in South Australia) if notice is given to the client prior to retainer as to professional indemnity issues.  In 2013 I decided, due to my surrogacy practice, to seek admission there. As a result I  have been admitted in South Australia since 2013. This enables me to sign off on South Australian recognised surrogacy agreements. 

Government: wait and see about surrogacy recommendations

The Abbott government's position with the Family Law Council paper is: we're thinking about it.

At Christmas last year, the Family Law Council, a statutory body full of family lawyers, judges and counsellors, provided a report to the government about how the Family Law Act fits with State Status of Children legislation, and other related legislation, such as State surrogacy legislation.

The report was released by Attorney-General George Brandis in August this year, in the midst of the Baby Gammy saga, but the release occurred only following a freedom of information request. In the report, the Council recommended that there be a Commonwealth status of children act, so that there was consistency about when children would be recognised following a surrogacy arrangement. The report also said that commercial surrogacy was problematic, but recommended that there be an inquiry about whether or not Australia should have commercial surrogacy, a call echoed by Chief Federal Circuit Court Judge Pascoe.

The council also recommended that when intended parents go overseas and bring their babies back to Australia, they should go to the family law courts and obtain an order before citizenship is given to the child. this, so the theory goes, will mean that there is a checking mechanism to ensure that children are protected. At the moment very, very few intended parents go to court to seek parenting orders.

Recently I met the family law advisor of Senator Brandis, Dr Susan Cochrane. The Government's position about the report and its recommendation is not known - other than the formal position, which is " the Government is considering the report and its recommendations". The Prime Minister has said several times during the Baby Gammy saga that the issue of surrogacy is a matter for the States, and that it was not a matter for the Commonwealth. Let's see.