Saturday, December 5, 2015

Chief Judge Pascoe appointed to The Hague surrogacy working group

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

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

Who is Chief Judge John Pascoe?


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

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consistent laws, and the ban on residents in some States going overseas for surrogacy should either be enforced, or repealed, noting that the bans were not enforced, and to not enforce laws but have them for symbolism is to make a mockery of the law.

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

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

What is the Hague working group?

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

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

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

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

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

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

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

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










Get ready for the Australian surrogacy inquiry

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

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

The terms of reference are very wide:

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

Thursday, December 3, 2015

Hooray we are going to have a surrogacy inquiry!

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

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

The inquiry is due to report by June next year.

Sunday, November 29, 2015

Donor conception changing- by the numbers

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

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

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

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

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

Sunday, November 22, 2015

Welcome to the Wild West: Cambodian surrogacy

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

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

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

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

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






Avoidable Mexican surrogacy disaster

I hate surprises. When it comes to surrogacy (or other court cases for that matter) I very much believe in prevention is better than cure. I would rather clients tell me what the dramas are, in a candid manner, so that they can be planned and accounted for, rather than trying to fix up a mess.

When it comes to surrogacy, I like to plan the process at the beginning, using people I like and trust, who can assist my clients all the way through. For domestic surrogacy arrangements, this may be other lawyers, financial planners, counsellors and IVF doctors. I just want it to go right first time, or at least have the greatest chance of going right first time. And if it doesn't go right first time, to do what needs to be done to fix it- easily, quickly, and as cheaply as possible.

Any surrogacy journey can have dramas, which most of the time will be medical, but can be regulatory. For those going to developing countries, it is very much a case of buyer beware. Going overseas for surrogacy, with IVF and using an overseas surrogate, and often an egg donor, is one of the most complex ways of becoming a parent, and things can go badly wrong.

Doing surrogacy at home can be a truly beautiful experience, despite the hurdles, as seen here and here

Those contemplating going overseas ought to rethink about whether they can do so back home. For some people, such as singles, gay and lesbian couples living in South Australia, or single men and gay couples in Western Australia, at first glance they have little choice but to go overseas. However, it may be possible for them to undertake surrogacy in Queensland or New South Wales. The delay may be no greater than an overseas trip, risk is down and cost may be especially down. Domestic surrogacy arrangements can be as cheap as $25,000 to $60,000, which is usually a lot cheaper than anywhere overseas.

A good illustration of things going wrong is this terrible tale of an Australian couple going to Mexico in today's Sydney Morning Herald:

 "The list of problems included the destruction of our embryo by the clinic through an error in the freezing process and the mixing up of paperwork on transfer of embryos between clinics. We weren't even sure the embryos transferred in to the surrogate were ours for a period of time.
"In some ways we are glad this devastating experience is over, for us and also for the surrogate mother who didn't fall pregnant."
One laboratory report stated that the "technique used is terrible". The couple said that while the two clinics argue who is the least incompetent, they are heartbroken at seeing the photos of the destroyed embryo.
Mr Yii added: "We where given assurance by our Australian lawyer who did due diligence on a number of clinics that the one we were to use was 'the most professional and ethical clinic with the most experience in Mexico'. Clearly the best in Mexico has failed."

I was not the lawyer who advised this couple. 

Appearing in four States for surrogacy

Last Friday when I appeared in the Supreme Court of New South Wales in Sydney for Claudia and Sonny Luca to obtain a surrogacy parentage order, it was the fourth State in which I have appeared for clients to obtain a surrogacy parentage order.

Although I and my associate Karen Gough have obtained surrogacy parentage orders in New South Wales in the past, this was the first time I had gone to court there. The reason is that in NSW surrogacy parentage orders are normally made in chambers. That means the documents are forwarded to the court. A judge then looks at the documents in his or her office, called chambers, and the orders are then made. The reason this time was different was because, for the first time the Supreme Court gave us a choice. I was told that we could have the orders made in chambers or we could have an appearance. Choosing the latter would also speed up the process.

By having a court appearance would mean that my clients would come face to face with the justice system- with a judge beaming down, approving of them as parents. It is truly a beautiful process. Judges have told me that making surrogacy parentage orders is the highlight of their weak, because it is joyful, unlike most of the rest of their work.

So it was a no brainer! We were going to court.

I have previously appeared in courts in Queensland, Victoria and South Australia. I have obtained surrogacy parentage orders in all four States. I have not blogged pictures of most, because laws generally prohibit publication- in order to protect the privacy of all concerned, especially the child. In this case the judge ordered that cameras could be taken into the court room, and Claudia, Sonny, Antonietta and Joe all consented to their details and that of Luciano being published.

I have acted in surrogacy matters for clients from all eight States and Territories and, at last count, 19 overseas countries:
  • USA
  • UK
  • Ireland
  • France
  • Germany
  • Belgium
  • Netherlands
  • Switzerland
  • Denmark
  • Japan
  • China
  • Hong Kong
  • Malaysia 
  • Singapore
  • Indonesia
  • Philippines
  • Papua New Guinea
  • New Caledonia
  • New Zealand

Helping Claudia and Sonny become parents to Luciano

On Friday I had the joy of representing a couple, Claudia and Sonny, in the NSW Supreme Court, so that they could achieve recognition as parents.

Claudia has a rare medical condition that she was born without a uterus. She knew all along that she would never achieve the joy of being a mum. Trips to the doctors confirmed it, and she was in despair that there were no options to become a mum.

Not a quitter, Claudia went online and found out about surrogacy. Claudia's mum, Antonietta offered to be Claudia's surrogate. Claudia and Sonny came to a seminar about surrogacy that I spoke at in Sydney almost 3 years ago.

They looked at undertaking surrogacy overseas and decided instead to do surrogacy at home. I said to them at the time that surrogacy was a when not if idea- a certainty when they would become a mum and dad, not a maybe.

As sometimes happens, there were a few medical bumps on the way, but back in June, Antonietta gave birth to Luciano. As the pictures show, he is a much loved prize. A wonderful bouncing boy!

On Friday, I was such a lucky man to be there when Justice Lindsay in the Supreme Court made a surrogacy parentage order, transferring parentage from Antonietta and Claudia's dad, Joe, to Claudia and Sonny.

Smiles all around.

Claudia, Sonny, Joe, Antonietta and Luciano have had their story told in Woman's Day and 60 Minutes. Only now, though, are Claudia and Sonny recognised as Luciano's parents. My role is to make it all happen- to reality test the plans, and then put the plan into action, so that my clients will not only have the joy of a baby, but also be recognised as the parents.

I have acted in several cases before for intended parents whose mum was the surrogate. A wonderful, wonderful tale. :)
(L to R) All smiles! Claudia, Sonny, Luciano, Joe and Antonietta
(L to R) Justice Lindsay's associate, Sonny, Luciano, Claudia, Justice Lindsay proudly holding the court order, Antonietta and Joe.

First Townsville surrogacy

I love helping people achieve their dreams and become parents. Just over two years I posted about why I love my job.

Having experienced infertility problems myself, I know the pain of infertility. The inevitable questioning. The eating away of the soul as if my acid. The self-doubting and self-loathing.

Too often I have heard from women who have gone to their fertility doctors to be told: you can't do anything; it's all over.

The reality is that sometimes egg donation can be used, or surrogacy. Surrogacy is the option of last resort, or for gay couples as an American colleague recently put it, it is the option of first resort.

Surrogacy of course has two aims: to have a baby, and to have the parents legally recognised.

A week ago I was honoured to represent a couple who had the joy of a baby girl through surrogacy. The couple, from Townsville, had to jump a series of hurdles to get there in the end. I told them at the beginning that surrogacy was a WHEN not if  proposition- when they would become parents. At each hurdle, I said not to give up in despair, but to keep on trying. They will get there. And they did!

To have appeared in court to help intended parents achieve legal recognition of their parentage is a joy, that continued from the first time we talked, when I said that they would get there.

I am a very lucky man. :)

Outside Brisbane Childrens Court. The order had been made: they are now officially mum and dad!


Thursday, November 19, 2015

Our child protection system needs overhauling: Sammutt

I am at a seminar in Brisbane with Dr Jeremy Sammutt who convincingly argues that due to ideology we are failing children- because the number of children in care Australia wide has doubled to 43,000, but only 100 were adopted. 

Instead the kids in care are often in multiple placements, without stability. 

Why adoption is automatically rejected as an option seems madness. Great work!

Thursday, November 12, 2015

Breaking the adoption taboo in Australia

Tonight in Melbourne, and in coming days in Adelaide and Brisbane, there will be a free seminar about breaking the adoption taboo in Australia, by author Dr Jeremy Sammutt and other speakers.

Why are children in dysfunctional families abused and neglected despite being reported many times to child protection authorities? Why are children further damaged by being cycled in and out of unstable foster care? Why are there so few adoptions in Australia despite the thousands of children in long-term care?

Adoption has been internationally proven as the best way to provide a safe, stable and loving family life for children who are unable to live with their biological parents. However, in relation to comparable countries, Australia has very low rates of adoption.

To coincide with National Adoption Awareness Week, this special event will examine the issues raised by Centre for Independent Studies Research Fellow Dr Jeremy Sammut’s new book, The Madness of Australian Child Protection: Why Adoption Will Rescue Australia’s Underclass Children (Connor Court).

I will be attending the Brisbane event.


 Chloe Valentine

This is what Dr Sammutt said earlier this year to the ABC following an inquest into the death of toddler Chloe Valentine in South Australia:

"Family preservation is an ideology, it's based on the idea that you can fix often unfixable families, families with high levels of dysfunction, high levels of personal problems, particularly drug and alcohol abuse," he said.
"The reality is that some families can't be fixed."
Dr Sammut said agencies resisted using adoption as an intervention.
"There is an anti-adoption culture within child protection departments. They simply refuse to take legal action to free children for adoption," he said.

He believed a stigma around forced adoption policies in Australia had contributed to such reluctance.
"It's partly due to the legacy of the Stolen Generations. It's partly due to the legacy of forced adoption but what we've got to recognise is we're talking about saving children from lives of dysfunction because the present system replicates and perpetuates intergenerational disadvantage," he said.
"It's made people reluctant to endorse adoption because they are concerned about replicating the errors of the past.
"That's a legitimate concern but we've got to understand that what we're doing today to try to avoid the errors of the past actually has a negative impact on children."


Will Victoria pass non-disciminatory adoption laws?

Later today, fingers crossed, the Victorian Upper House will hopefully pass laws to remove same sex discrimination from adoption laws in Victoria. The Bill has already passed the Lower House.

Currently half of Australia by jurisdiction, and greater than half of the Australian population, is subject to laws that prevent same sex couples from adopting children. Human Rights Commissioner Tim Wilson has called for the repeal of the laws. The discriminatory laws are in: Victoria, Queensland, the Northern Territory and South Australia.

The proposed change in Victoria will bring Victoria into line with those places that do not discrimination on the basis of sexuality in adoption: New South Wales, the ACT, Tasmania and Western Australia.  Despite the statements of the Chicken Little's of the world, the sky has not fallen in those places when they legislated to allow adoption by same sex couples. Queensland has also pledged to remove this discrimination and South Australia is reviewing how its laws discriminate against same sex couples.

The irony of the discrimination is that everywhere in Australia same sex couples are accepted as foster carers. If they are good enough to care for our most troubled and vulnerable children, why can't they be allowed to adopt?

When I say fingers crossed, I understand that the numbers in the Upper House are finely balanced, and the vote could go either way.

Surrogacy seminars

Surrogacy seminars in just over a week


In just over a week,  Families Through Surrogacy will be hosting surrogacy seminars throughout Australia- in Perth, Adelaide, Sydney, Melbourne and Brisbane.

I will be speaking at the Brisbane seminar on Tuesday 24 November, 2015. Other speakers include speakers from the Ukraine, Canada and Oregon.

Many Australians choose to go overseas for surrogacy, believing that it is quicker, easier and cheaper than back home. Properly organised, surrogacy in Australia should be cheaper and should be easier than going overseas, while providing legal certainty. The difficulties in organising local surrogacy usually revolve around finding a surrogate and an egg donor, and discrimination issues.

Local laws tempting people to go overseas


ACT

In the ACT those undertaking surrogacy have to be a couple, and the surrogate also has to be part of a couple. There isn't discrimination on the basis of sexuality. Fertility treatment must be in the ACT. Due to geography, these problems can usually quickly be avoided, as NSW does not have these restrictions.

Tasmania

Under the Surrogacy Act, all the parties must, unless a court orders otherwise, be from Tasmania. The problem is that the court makes the order after the baby is born- and therefore after the decision is made whether to go ahead with the surrogacy arrangement.

South Australia

SA discriminates against singles and same sex couples seeking surrogacy.

Northern Territory

The Northern Territory has no surrogacy laws. The effect is that IVF cannot be performed there, and those living in the NT have to go interstate or overseas.

Western Australia

WA discriminates against single men and gay couples. Single women, and lesbian couples can access surrogacy in WA.

Where there are legal complications if you decide to go overseas



If you choose to go overseas for surrogacy, then there is always a legal complication as to citizenship (assuming you are an Australian citizen) or visa conditions (assuming you are a permanent resident or NZ citizen living in Australia) and as to whether or not you are a parent.

On top of that there are State laws where it makes it complicated and potentially a jail term by accessing surrogacy overseas. Here is the State by State guide- current as of 12 November, 2015:

Queensland

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

New South Wales

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

ACT

Potentially you could go to jail for accessing surrogacy overseas.

Victoria

No complications.

Tasmania

No complications.

South Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

Western Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas. It is a crime for Western Australian lawyers to advise you about overseas commercial surrogacy.

Northern Territory

No complications.


Sunday, November 8, 2015

Visit to Fertility Center of Las Vegas

Last year I had the privilege of meeting prominent US fertility doctors Dr Bruce Shapiro and Dr Said Daneshmand from Fertility Center of Las Vegas. I first met Dr Shapiro when I saw him present about the perils of implanting more than one embryo into a surrogate, due to the risks of twinning, which in turn led to a high risk of complications, premature births, increased cost and risk to the babies and the life of the surrogate.

Subsequently I met Dr Daneshmand when I attended the American Society for Reproductive Medicine conference, where Dr Daneshmand was presenting.

Last year, Dr Daneshmand and I presented about surrogacy in the US, along with psychologist Dr Kim Bergman from Growing Generations surrogacy agency, at seminars in Brisbane, Sydney and Melbourne. One of the questions that I am always asked is how often the surrogate gets pregnant on the first cycle. My response is that I am a lawyer, not a doctor, but when you mix medicine and techniques designed to get infertile women pregnant with a fertile woman, a surrogate, there are very good odds for the surrogate to get pregnant on the first IVF cycle.

Dr Daneshmand was able to be more precise. He said that at his clinic  the surrogate was pregnant 87% of the time on the first cycle. The obvious question was why the surrogate was not pregnant the other 13% of the time. His answer was clear- usually the problem was not the surrogate- typically it was when the intended parents used their egg and sperm and there was an undiagnosed problem. This did not occur when donor eggs are used, because donor eggs are subject to rigorous screening.

The form of screening of which Dr Daneshmand is a clear proponent is pre-genetic screening or PGS. In Australia we call it pre-genetic diagnosis or PGD. PGD has not been available in Australia except for medical reasons. Doctors are forbidden from using PGD here otherwise, because it enables doctors (and therefore intended parents) to find out the gender of the embryo. Australians instead have been going to the US to have PGD, and reports indicate that 80% of them are choosing girls. Recently the National Health and Medical Research Council (which sets these licensing conditions) has proposed lifting this ban in Australia.

I have always strived for excellence in my work. I am impressed by those who innovate, and in terms of IVF labs, those who put research at the forefront of their practices. Aside from being nice guys, I have been impressed by Dr Shapiro and Dr Daneshmand's commitment to innovation, excellence and research. 

But I digress. Recently my husband Mitchell and I called in and visited the labs of the Fertility Center of Las Vegas. The pictures speak for themselves.




With business development manager, and our matron of honour, Shivas Price.




 This screen shows that the DNA is of a healthy female.
It isn't an IVF lab without liquid nitrogen!
 The screen shows the complexity of DNA.

With Dr Bruce Shapiro, who was about to operate.

Disclosure:  I stayed in Las Vegas as a guest of the Fertility Center of Las Vegas. Dr Daneshmand was my best man when I married Mitchell. Shiva Price was matron of honour.

Thursday, October 8, 2015

The musicians may change but the band plays on. Did Baby Gammy change anything? Australian surrogacy- an update: presentation to the AAARTA conference

On Tuesday I presented to the Assisted Reproductive Treatment law conference of the American Academy of Assisted Reproductive Treatment Attorneys in Chicago. I am the first international Fellow outside the US and Canada of the Academy. I presented an update about surrogacy in Australia. Here is my paper:



The Musicians May Change but the Band Plays On.
Did Baby Gammy Change Anything?

By Stephen Page[1]

American Academy of Assisted Reproductive Technology Attorneys Conference

Chicago

6 October 2015

“What’s clear is while one culprit’s been exposed, there will always be another rogue operator, new sets of parents desperate to have children, and a willing supply of surrogates trying to better their own lives. And when this pattern plays out around the world in developing countries with next to no regulation, there are very few winners.”[2]

It’s not all about surrogacy!

As I had to explain to one judge, who wanted to know why my gay clients wanted to undertake surrogacy, the easiest way to have a child is to have sex. My clients, as I told his Honour, tried repeatedly, but they were unable to succeed because they were both men.

His Honour then invited me to continue. I explained that no one would undergo the option of last resort, surrogacy, if all the successful alternative was that of sex. After all, why run the gauntlet with a battery of counselors, doctors, lawyers and then finally a judge, if the alternative were that of sex?

For many laypeople, and indeed many intended parents, the focus is on surrogacy. Fair enough when you are a gay couple or a single man- you have little option, but for single women, lesbian couples or heterosexual couples, surrogacy is often one of the options, and the last option after other options have been considered including:

·         Sperm donation
·         Egg donation
·         Embryo donation
·         IVF
Many intended parents, after seeing media coverage about surrogacy, or reading about it via Google, then assume that surrogacy is the option for them. Often they’re wrong.

Although I talk in this paper about surrogacy, the other aspects of ART should not be forgotten.

Australians restrict the ability to pay egg donors, for example. I have had clients head overseas after asking 38 potential egg donors, none of whom responded positively except the last one, who wanted A$5,000for an overseas holiday, which aside from the risk of paying what would appear to be a capricious donor, raised the further risk of criminality in two states and federally.

Australians have headed overseas for egg donors to as far away as:

·         Argentina
·         USA
·         Mexico
·         Canada
·         Spain
·         Greece
·         Ukraine
·         India (until recently)
·         Thailand (until last year)
·         Cambodia (if anecdotal stories are correct)

A focus on surrogacy alone will miss the other aspects of ART that should not be ignored.

Intended parents may worry that they not commit criminal offences to do with surrogacy (which depending on the jurisdiction has  a maximum penalty of up to three years imprisonment) but not realize that there can be a criminal offence with overseas egg donor contracts (which can have a maximum penalty of 15 years imprisonment).

Introduction to the madness

Just over a year ago, the Baby Gammy saga burst into view. Day by day the saga played out with new developments.

I had no connection with the case except that I was seemingly the world’s expert du jour. I was at the epicenter of the media storm. For one month I did very little billable work, instead every day being a series of media interviews, backgrounders or setting up media interviews.

I knew it was big when colleagues in Canada and Switzerland were interviewed about the same story- the story of surrogacy gone wrong, involving two babies, an Australian couple, a Thai surrogate and an Australian trained Thai fertility doctor.

To give you a perspective of that month of madness:

·         in one day I did five separate national TV network interviews, plus several radio interviews, a backgrounder, plus two or three press/internet interviews.
·         I was contacted by seemingly everybody: The New York Times, Wall Street Journal, The Guardian, Fuji TV, DW (German TV), Radio NZ, as well as seemingly most of Australia’s media. Who knew that there was a Christian radio station in Sydney or that there was a late night political talk show on pay TV in Australia? I didn’t!
·         When I went to speak at the inaugural AFCC conference in Australia, I spent much of the day down the hall from the conference venue sitting in winter on the polished stone floor? Why? This was the only place that I could find that was quiet enough where I could find a plug to charge my phone at the time of doing a dozen or two phone calls connected with interviews- with everywhere from Brisbane radio to a colleague in Boston and journalists in Bangkok.
·         A year later I was hit by a sense of déjà vu of going to the annual family law conference in Queensland. What was different this time was that unlike last year, I was not sitting in my car in the car park for a lengthy time. Last year the interview with Fuji TV was conducted via Skype, using my phone. As it was almost out of juice, I had to plug it into the phone charger in the car, and then hold my phone dead still for 20 minutes. You cannot possibly realize how heavy an iPhone is until you have achieved this!

When you are subjected to this level of scrutiny, as happens when for example I said that our Prime Minister was wrong (as he said that Australian intended parents who went to Thailand who got stuck should have complied with the law in both places, to which I responded that many of them did), and every journalist wants to scoop all the others, suddenly you have to come up with some soundbites as to how prevent something like Baby Gammy happening again.

Mine were:

1.      Reduce demand by increasing supply. Australia has to allow commercial surrogacy. Surrogacy in Australia, with the most limited exception in the Northern Territory, is non-commercial. Donors are not able to be paid, except for out of pockets. Surrogates are not able to be paid, except for out of pockets. It is illegal to advertise for surrogates in most of Australia. If demand were increased, then Australian intended parents would not be going overseas to developing countries where human rights protections and governance standards were less than adequate- they would be staying home, at their local high quality, heavily regulated IVF clinic. Who wants to go to a developing country overseas when they could go just down the road? After all, Australia produced the IVF pregnancy. Its twinning rate (along with NZ) is the lowest in the world. The suggestion that Australian laws could not protect the human rights of surrogates and children was laughable.
2.      Use soft power to encourage overseas countries to lift their standards. This would be through diplomatic efforts, but also through legal and medical organisations, such as the International Bar Association and ASPIRE (Asia Pacific Initiative on Reproduction).
3.      Have a sensible Hague Convention on international surrogacy arrangements.

In the midst of the saga, the chief family law judges, Chief Justice Diana Bryant of the Family Court of Australia and Chief Judge John Pascoe of the Federal Circuit Court of Australia, supported change. Their Honours:

·         Supported the removal of extra-territorial sanctions for overseas surrogacy, which exist in Queensland, New South Wales and the Australian Capital Territory. After all, they reasoned, these laws are in place to prevent people from going to developing countries, for which they have been spectacularly unsuccessful. Either the laws should be enforced, which they weren’t as not one person had been prosecuted, which made a mockery of the law, or they should be repealed.
·         Supported the legalization of commercial surrogacy in Australia.
·         Called for a Parliamentary inquiry to investigate commercial surrogacy, to see whether it ought to be allowed in Australia.


A summary of scandals

Probably a better name for this paper might have been: the more things change, the more they stay the same[3]. Despite the scandals, it might seem that very little has changed with the regulation of surrogacy, nationally and internationally.

To give an idea of recent troubles, it is best to highlight all of which have an Australian element. Australians hold the dubious honour, due to our surrogacy laws, and relative ease of obtaining citizenship, of probably being the highest per capita users, and possibly the highest absolute users of international surrogacy arrangements.

Scandal 1: Russia and USA: Newton and Truong

Mark Newton is a US/Australian dual citizen. His former partner, Peter Truong is an Australian citizen of Vietnamese background. They lived together near Cairns.

Their story was that they went to Russia, underwent surrogacy there using Mr Newton’s sperm, and came home with a baby boy. They obtained at first a custody order and then an adoption order in the US.

They presented to the world as a loving gay couple who had undertaken surrogacy and doted on their child.

Most of what they said was a lie. The lie was exposed when a man in New Zealand in 2011 took his computer to the repair shop. The repairer noticed that there was child porn.

The truth was that Mr Newton and Mr Truong had purchased the baby from a Russian woman for the purpose of sexualizing the child and making him available both physically but also via video and pictures on the web, to a global paedophile ring.

The child was sexualized, according to media reports to an extraordinary degree. He is now in the care of relatives in the US. Both Mr Newton and Mr Truong are serving long sentences in US jails.

The good news is that Queensland police, as part of Taskforce Argos[4], co-operated with the FBI and counterparts in New Zealand and Europe in investigating the leads and catching the various suspects.

Scandal 2: India: The missing boy

In 2008 an Australian couple from Western Sydney had twins born to them in India via surrogacy. They did not want the boy, and took the girl. The choice was based on sexuality. It is not known where the boy ended up, other than with “friends”, but it is likely that he did not leave India. The Chief Justice of the Family Court of Australia, Diana Bryant, has called the actions, if correct (and they appear to be so) to be child trafficking.

Her Honour broke the scandal in October 2014, and there have been reports about the case from Australia’s ABC[5] since then.

The effect of the scandal, which broke in the aftermath of Baby Gammy, was that India stopped all Australians from undertaking surrogacy there whatsoever. Since early this year, India has relented somewhat so that limited numbers of intended parents from Victoria, Tasmania, South Australia, Western Australia and the Northern Territory can undertake surrogacy in India.

Following earlier changes in 2012 when India changed the rules halfway through some surrogacy journeys, many Australian intended parents got stuck on the way through. Thankfully, all were able to bring their babies home, although it was reported to me by clients that bribes had been paid to enable them to do so.

Scandal 3: Thailand/Cambodia: Making multiple babies

At the time that the Baby Gammy saga broke, and it appeared that almost the whole of the world’s media beat a path to my door, what journalists in Thailand told me was that Thai officials viewed much more seriously were the efforts of a 24 year old  Japanese man, Mitsutoki Shigeta, the son of an IT billionaire, to create many children. At last count, there were 18, fathered by 13 surrogates, all created through the efforts of Australian-trained Dr Pisit Tantiwattanakul.

I do not know what ultimately has happened with these babies, or the Japanese father, although it appears that in January he was awarded custody of three of them[6] and was suing for 13 of them to come into his care[7].

As well, another 21 babies were taken into custody by Thai authorities, in what they described as a baby factory. Those babies were conceived from eggs of donors from Australia, the US, Sweden, China, Spain, Brazil, Malaysia and Israel[8].


Scandal 4: Thailand: the Baby Gammy Saga

The biggest of the scandals was the Baby Gammy Saga. Every day in August and September last year it appeared that there was a new development. The case seemed as far removed as it could possibly get from the standard surrogacy case, but nevertheless the facts kept rolling:

·         An Australian couple, the Farnell’s, underwent surrogacy through Dr Pisit’s All IVF in Bangkok.
·         They came there through a backyard surrogacy agency in Bangkok.
·         The surrogate it turns out was not a gestational surrogate, but a traditional surrogate.
·         Although doctors were not allowed to provide treatment for commercial surrogacy, it appears that the surrogate was paid, and recruited other surrogates.
·         Twins were conceived, presumably intentionally.
·         No discussions appear to have occurred between the intended parents and the surrogate as to what they might do if something went wrong, or if they did have discussions, those discussions were clearly inadequate.
·         All discovered in due course that the twins were a boy, Gammy and a girl. The girl was healthy. Gammy had Down’s syndrome.
·         The Farnell’s took that the view that there should be selective reduction of Gammy. The surrogate refused.
·         Following the births, the Farnell’s refused to take Gammy, and took the girl.
·         The surrogate consented to the removal of the girl from Thailand to Australia.
·         After their return to Australia, the Farnell’s refused to provide any financial help with Gammy, who it turns out also had a congenital heart condition.
·         A public appeal raised several hundred thousand dollars to help the mother provide for Gammy.
·         When the story broke, it was revealed that Mr Farnell was a convicted paedophile.
·         It then became apparent to the world’s media that there was in fact no global legal system concerning surrogacy, and that there were no criminal and child protection checks on those undergoing surrogacy overseas.
·         Media then camped out at the Farnell’s home, chasing down child protection service officers.
·         Mr and Mrs Farnell then took part in a 60 Minutes story to put their side of the story.

Following the multiple baby scandal, and the Baby Gammy saga, Thai officials (now appointed by a junta) took swift action. The actions of Thai officials seemed to change day by day. At first no action seemed to be taking place, then rules were put in place, which then kept changing.

Thai officials immediately announced that there would be no more surrogacy, unless it was altruistic and the intended parents were Thai citizens. So that there was no doubt about who could take the children from Thailand, it was also suddenly announced that any intended parents who wanted to remove their babies from Thailand would have to get an order from the Family Court there. This step had never been required before, and was estimated to take six months to complete, during which time the intended parents would likely lose their life savings, their jobs and homes back in Australia and other countries.

The Prime Minister, Mr Abbott, also announced that in effect Australian intended parents had to obey the laws in Australia and in Thailand, effectively saying that they only had themselves to blame. I said to media that the Prime Minister was wrong- because many of these parents believed that they were obeying the law in both places when they entered into the surrogacy contracts and could not be blamed for a change of rules halfway or even more of the way through.

Luckily the Australian government regrouped, via a committee of officials from various departments, and made strenuous diplomatic efforts, mostly behind the scenes, to ensure that the children could come to Australia in a timely manner. They were largely successful. However, it has been reported to me by several of the parents that they could only remove the children from Thailand following the payment of a bribe to relevant Thai officials.

Two Thai clinics were immediately closed down, one of which was Dr Pisit’s All IVF. It was announced that Dr Pisit was placed under arrest, presumably never to practice again.

Recent anecdotal reports I have received suggest that some Thai doctors are still at the centre of surrogacy: evidently the profits are too good. Thai doctors have been responsible, so I have been told, for the creation of embryos in Cambodia, sometimes with surrogates there, or for the subsequent export of embryos from Cambodia to Nepal.

As of 12 August 2015, Dr Pisit appeared on the web, no longer from All IVF, but now appearing at “iBaby Fertility and Genetic Center, Leading Fertility Center in Bangkok Thailand”[9]. This is what his website said under “About us”:


“Why iBaby : Dr. Pisit is a doctor of clinical embryology, receiving his post-graduate credentials from Monash University in Melbourne, Australia…
Moreover, Dr.Pisit received doctorate of medicine from Chulalongkorn University, one of the best and world class university in Bangkok, Thailand and has a wealth of experience in the fields of embryology, gynecology and obstetrics. Dr.Pisit has spent over 10 years in the study and work of reproductive medical practices. Dr. Pisit has written heavily researched and detailed papers on pregnancy, embryo transfer and contraceptive affects on the uterus and also has done work for several hospitals throughout Thailand and Australia. Recently, at our clinic, Dr. Pisit works as an infertility specialist and director of embryologist.”

There is no suggestion that Dr Pisit is undertaking surrogacy work now, but certainly continuing fertility work.

A report I read in early September  from Thailand suggested that the Thai government was now seeking to deregister Dr Pisit. Let’s see.


Scandal 5: Mexico: Rudy Rupach, Planet Hospital

In 2013 I met Rudy Rupach in Melbourne. He turned up there as a sponsor of the Surrogacy Australia conference, and appeared under a large banner spruiking surrogacy in Mexico. While I do not profess to be an expert on the subject, my immediate impression of Mr Rupach was that he seemed to be the archetypal 1970’s Californian porn film director: open necked shirt, heavy gold chain and pulled back long black/grey hair.

Mr Rupach touted the benefits of going to Mexico. He had tried running surrogacy in India, but given the regulatory changes there, was now trying Mexico, in the State of Tabasco. When I asked how surrogacy came about, I was told that it was due to the efforts of a State senator, who was keen to help infertile women, who moved a bill through the Tabasco legislature, and to whose political action committee Mr Rupach paid a substantial donation before the next election.

However, as Foreign Correspondent[10] and The New York Times[11] revealed, Mr Rupach’s Planet Hospital struck problems:

·         The company was insolvent, leaving intended parents from several countries, including Australia, many thousands of dollars out of pocket;
·         It operated, as alleged by intended parent, then lawyer and former Planet Hospital employee Catherine Moscarello as a Ponzi scheme;
·         Women were being trafficked from Colombia to be promised payment as surrogates, only to learn that they were unpaid, abandoned, and unable to return home.

Last heard from there was an FBI investigation and bankruptcy proceedings concerning Planet Hospital[12]. 

But that is not the end of Catherine Moscarello. Ms Moscarello, who lives here in Illinois, and who was severely critical of Mr Rupach, has been disbarred by the California State Bar[13] in November, 2014. The California Bar Journal Discipline Summary states:

“Moscarello stipulated that she didn’t comply with the terms of a 2012 disciplinary order. She submitted four quarterly reports to the Office of Probation late and did not provide proof of restitution. She was ordered to pay the previously unpaid $1,200 plus interest in restitution. Moscarello had two prior records of discipline. In 2013, she was suspended for failing to refund unearned fees. In 2011, she was suspended for misconduct in eight matters including improper withdrawal from employment with a client and failing to perform competently, refund unearned fees to a client, return a file to a client, communicate adequately with a client or cooperate in a State Bar investigation.”

Moscarello remains in the surrogacy business[14], running IP Conceptions, which specialises in surrogacy in Mexico[15].


So what’s changed?


Well, not that much really. The locations have changed, but surrogacy in developing countries continues. Certainly Thailand is closed for good for surrogacy. The musicians may change, but the band plays on.

Certainly, there has been a sea change in some aspects since pre-Baby Gammy. In April last year I spoke at the Merck Serono conference on Cross-Border Reproductive Care in Brisbane. Another speaker was acclaimed IVF specialist Dr.Wiwat Quangkananurug from Bangkok who described how surrogacy was undertaken in Thailand, and how he would not deal with any of the surrogacy agencies there, which in light of what happened in the Baby Gammy saga seems particularly prescient in hindsight. He considered the agencies to be scam merchants, often operating out of apartments, with little evidence that they were genuine.

Dr Wiwat was critical of the Indian approach to surrogacy, suggesting that in Thailand surrogates were better looked after and that quality control was higher in Thailand.

India

Of course, such debates between Indian and Thai doctors, at least so far as Australians are concerned now, is academic. Hardly any Australians can now access surrogacy in India, and Thailand is closed for business. India has talked since 2008 of regulating its ART industry by passing an ART Bill. It still hasn’t done so, meaning that the industry is largely self-regulated, or not regulated at all.  The death of a 17 year old egg donor [16] in 2010 allegedly by a clinic that was at the time popular with Australians, has not prompted changes. Nor has the alleged rape of a law student there who refused to be a surrogate[17].

No prosecutions

No one has yet been prosecuted for undertaking surrogacy overseas.

No one has yet been prosecuted for undertaking egg donor contracts overseas, even though the criminal laws in several States, such as NSW, would appear to stretch that far.  

The State Attorneys-General were recently reported as wanting to get tough about these laws, but as yet nothing substantial appears to have happened.

The impact of Thailand being shut for business for surrogacy has not deterred the childless and the desperate. Australians have gone in increasing numbers to Mexico and to Nepal.

The number of Australians going to developing countries is likely to increase, following the collapse in the Chinese exchange rate, which in turn has led the Australian dollar down from near parity with the US dollar a year ago to now buying US$0.63, with predictions that it will travel further south.

Mexico

One Australian lawyer specialises in assisting clients to undertake surrogacy in Mexico[18]. Reports have continued to come from Mexico in 2015 about intended parents being stuck there, unable to bring their babies home. There were stories this year of parents from the US[19], Canada and Spain[20] in this category. One story about the Canadians was particularly revealing: they said that their Mexican lawyers had discussed with them about which officials to bribe[21]! This was after:

"They've done their due diligence. They hired a lawyer, they took the precautions they thought they needed to."[22]

A prospective client of mine told me that he and his partner had budgeted A$160,000 for the surrogacy journey through Mexico!

Nepal


Australians are now undertaking surrogacy in increasing numbers in Nepal, notwithstanding the recent earthquake and pictures of Israeli gay couples being choppered out with their babies after the earthquake. Nepal is an ironic location. Generally India will not allow Australians to undertake surrogacy there. Nepal, being poorer than India, has given the green light to medical tourism, including surrogacy. However, in order to protect its women, Nepal will not agree to Nepalese women being surrogates. They come from India!

At the time of writing, the Supreme Court of Nepal issued an interlocutory injunction preventing all commercial surrogacy there. Australian intended parents are stuck there, with pregnant surrogates, as are intended parents from other countries.

It seems to be a replay of India in 2012 and Thailand in 2014: a developing country in which surrogacy is seen as a panacea, but the panacea is more like opening Pandora’s Box:  ethical and moral issues come with surrogacy, something goes wrong, and a lack of regulation causes a kneejerk reaction, resulting in intended parents being trapped.

The court case has exposed that there are no laws in Nepal regulating or allowing surrogacy, but instead surrogacy is allowed pursuant to a Cabinet decision made last year.

In the court case it is being argued that surrogacy involves the exploitation of women and the children. It is argued that the hospitals issue their own (non-State sanctioned) birth certificates, and that children going overseas do so in breach of the 1961 Hague Convention.

That Convention is the 1961 Hague Infants Convention[23]. The key provisions of the Convention are Articles 5 and 6:

“Article 5
If the habitual residence of an infant is transferred from one Contracting State to another, measures taken by the authorities of the State of the former habitual residence shall remain in force in so far as the authorities of the new habitual residence have not terminated or replaced them.
Measures taken by the authorities of the State of the former habitual residence shall be terminated or replaced only after previous notice to the said authorities.
In the case of change of residence of an infant who was under the protection of authorities of the State of his nationality, measures taken by them according to their domestic law shall remain in force in the State of the new habitual residence.
Article 6
The authorities of the State of the infant's nationality may, in agreement with those of the State where he has his habitual residence or where he possesses property, entrust to them the putting into force of the measures taken.
The authorities of the State of the habitual residence of the infant may do the same with regard to the authorities of the State where the infant possesses property.”
The member States of this Hague Convention are, with one exception, China, all European. China is listed as continuation, which I suspect is for Macao only, as Portugal is a signatory, but the UK is not.

Member States:

Austria

People’s Republic of China

France

Germany

Italy

Latvia

Lithuania

Luxembourg

Netherlands

Poland

Portugal

Spain

Switzerland

Turkey


Nepal is not a signatory. Nor are the countries that have been the largest sources of intended parents: Israel, Australia and USA, amongst others.







USA

Australians continue to go to the US. They do not stick just to California (though that is the favourite location) but have ventured all over, including to Arizona, Washington State, Arkansas, Minnesota, Idaho, Massachusetts, Maryland, Illinois, Ohio and Hawaii.

The cost of Australians undertaking surrogacy in the US varies.

The key in going to the USA (of course aside from the issue of whether it is legal in the home State) is to make sure that healthcare costs are under control. The Affordable Care Act  may be making a difference. However, recently a couple (who had not sought my advice before going to the US) told me that some things had gone wrong in their surrogacy journey, including uninsurable twins, resulting in a total cost of A$1 million! Another couple, who were referred to me by an American attorney ignored my advice to sort out health insurance and have had a health care bill of $1million!

There are recent reports of Australian authorities cracking down on the practice of Australian intended parents bringing their babies home on tourist visas. What impact this will have on practice I do not know. It is again a case of watch this space.

Canada

For those in Queensland, NSW and ACT where there is no doubt that it is illegal to go overseas for commercial surrogacy (including of course to the US) , some intended parents have been going to Canada. It is possible to undertake altruistic surrogacy in Canada, with ART occurring in the US, such as  California or Nevada[24], if properly planned.

Ukraine, Greece, Georgia

I have also been approached by agencies or doctors in the Ukraine, Greece and the Republic of Georgia seeking Australian intended parents.





Surrogacy Cost Guide[25] in AUD- overall costs[26]

Country
Cheap, cheap
Low range
High range
OUCH!
Australia
$25,000
$35,000
$60,000
$300,000[27]
Canada

$80,000
$100,000

India

$70,000
$80,000

Georgia
NK
NK
NK
NK
Mexico
NK
NK
$160,000
NK
Thailand
$50,000
$70,000
$80,000

Ukraine
NK
NK
NK
NK
USA
$25,000
$100,000
$250,000
$1million

Parliamentary Inquiry

Following Baby Gammy, the Australian House of Representatives Select Committee on Social Policy and Legal Affairs held an informal inquiry into surrogacy, called a Roundtable.

Witnesses came in two groups. The first group were opposed to surrogacy, because they saw it would be like the exploitation of women through adoption and the robbing of people of their heritage caused by anonymous donors.

The second group were calling for change, the removal of discrimination, the legalization of commercial surrogacy, and the removal of laws banning Australians going overseas.

Chief Justice Diana Bryant of the Family Court of Australia and Chief Judge John Pascoe of the Federal Circuit Court of Australia were both in the latter camp. Her Honour called for laws, prepared in advance by 18 months, so that those going overseas had to meet certain checklists back home, as it was assumed that Hague processes would be too slow. Another witness raised concerns that to do so might mean that children were trapped offshore, remaining stateless.

The committee’s conclusion? That there ought to be a formal inquiry by the Committee to deal with international issues, cross-border issues in Australia, issues to do with discrimination in Australia, and the information that ought to be provided to intended parents. The report has been with the Government for months, and despite there being rumours that there will be an inquiry, none has yet materialised.

In April I took part in a discussion held by the Women Judges Association of Australia about surrogacy. The question that I long remember was from a man from the Lone Fathers Association of Australia who asked why these people could not just get used to the idea of not having children, after all that is what happens to parents often in the Family Law Courts- that they do not get to see their children. I replied that was not in the real world. In the real world, within less than a second a person who is desperate to have children can click on the browser on their smartphone or tablet and find millions of answers to surrogacy, based here and overseas. I said that we could be like Canute and pretend that we can stop the tide, but the reality is that we cannot, and that we are better off regulating surrogacy, rather than seeking to ban it.

Indians in India

Many Indian-Australians wish to undertake surrogacy in India, for a variety of reasons, mainly so that they can have a child who is ethnically theirs, and they feel much more comfortable negotiating Indian laws and custom than the wider Australian community. Undertaking surrogacy there means that they can go to their homeland and spend time with their extended families. It seems that these people, who have legitimate aspirations and do not want to exploit anyone, let alone the surrogates, are too often forgotten. In some cases, they have been able to speak the same language as the surrogate, and even maintain an ongoing relationship with her, valuing her role in their family’s life.

International altruistic surrogacy

This must not be forgotten. In all the noise about exploitation and the need for regulation of international commercial surrogacy, intended parents undertake international altruistic surrogacy. This can be extremely complex.

A recent example of the complexities of international altruistic surrogacy

Two sisters wished to undertake surrogacy. The sister who could have children was to be the surrogate. The sister who could not was to be the intended mother. Each of them were married.

Simple so far.

One couple lived in New Zealand. The other lived in Australia. State, Australian and New Zealand laws had to be negotiated, as well as the Hague Intercountry Adoption Convention (because NZ handles surrogacy via an adoption order when the baby comes home).

I drafted a surrogacy arrangement which did not comply with State law, in the sense that an order would not be able to be obtained (because the intended parents did not live in that State and fertility treatment was not in that State), but it was legal. Legal, but non-compliant, as opposed to legal and compliant, or illegal (commercial surrogacy).

Fertility treatment was in the US.

After my client the surrogate was pregnant, I was telephoned by a lawyer for a medical defence fund, acting on behalf of the obstetrician. She wanted to know if her client, in providing treatment, would be committing an offence. I said: “No.” She then asked me to explain. Dealing with complex issues of law, including private international law, took me 15 minutes. She then asked me to confirm that advice in writing, resulting in an eight page letter!

Treatment was provided, and a healthy child was born as a result.

The Hague

Since 2010 the Permanent Bureau of the Hague Conference of Private International Law, based, not surprisingly, at The Hague in the Netherlands, has been working on the idea of the possibility of there being a Hague Convention on International Surrogacy.

Australia, along with many other Western countries, such as the US, is a member of the Hague Conference. As a member nation, Australia is a party to several Hague Conventions to do with children, such as the Hague International Child Abduction Convention and the Hague Intercountry Adoption Convention.

The current status of progress is that there is likely to be a working group of international experts meeting early in 2016 to flesh out the bare bones of a Convention. It is likely that any Convention is, at best, two to three years away. It is clear that if there any doubt about there being a Convention, most Member Nations formed the view post-Baby Gammy that there needed to be one, including a requirement of basic scanning of suitability of intended parents as to criminal and child protection histories.

We shall see what transpires.

South Australia

Not much has happened, as I said, in Australia, except that is in South Australia. There a Liberal backbench MP, John Dawkins MLC achieved changes to the Family Relationships Act 1975 (SA), the law that covers surrogacy.

Some of those changes were advocated by me- such as one counsellor before signing the surrogacy agreement, not three as used to be the case[28], and post-birth counselling (which was not previously provided)  but he came up with his own idea (independently also considered but rejected in Israel): that anyone from SA going overseas for surrogacy needs the permission of the Attorney-General to do so. As the MP explained to me, this was for the firm purpose of preventing a repeat of Baby Gammy. I do not share his optimism, but I understand the direction he took.

The irony of this change is that same sex couples and singles cannot proceed with surrogacy in South Australia and have to go overseas, but then have to get the permission of the first law officer, the Attorney-General, before they can go.

It is not known on what basis the Attorney-General will approve or decline approval, or require further information and documents about any international arrangements. It is likely that SA residents who head off overseas will ignore the law and attempt to fly under the radar, as have their cousins in Queensland, NSW and the ACT, unless and until there is the first prosecution.

Finally, my conception case

This case was decided as long ago as 2012, but it is still unique, I understand, so I mention it.

The Surrogacy Act 2010 (Qld) has some basic requirements before a parentage order can be made. One of those is that the surrogacy arrangement was entered into “before the child was conceived”. There was no definition of conception or conceived. Was it the act of fertilization or was it the act of pregnancy?  The difference could be stark- if the former, and the parties were using an embryo created before the surrogacy arrangement was entered into, then there could never be a parentage order.

That was exactly the situation that faced the judge in my case, LWV and Anor v. LMH [2012] QChC 026[29]. The intended mother had cancer. Several eggs were removed, ahead of treatment for cancer, fertilized with her husband’s sperm, then frozen. Years later, her sister, my client, entered into a surrogacy arrangement with the intended parents to be their surrogate. A transfer then occurred, a pregnancy resulted and the child was born.  When was conception?

Judge Clare SC was clear- it was the act of pregnancy, not fertilization. Her Honour made a parentage order.

Her Honour stated:

“[1] LCH is a long awaited and precious gift, much loved by his family and a miracle of modern medicine. When his biological parents were unable to conceive naturally, his aunt grew and nurtured LCH in her body for them. LCH was born on 22 March 2012. He has been in the care of his natural parents, LWV and AKV, since his release from the hospital. This is an application for a Parentage Order. It is brought by LWV and AKV and supported by the continuing altruism of the birth mother, LMH, who is named as the respondent.

The court’s power to make an order
3
[2] The parties had a surrogacy arrangement. They have done everything they could to comply with the law and now seek its protection for LCH through the parentage order.

[3] The power to make such an order derives from the Surrogacy Act 2010
(Qld). As one might expect the Act sets out rigorous conditions for the protection of the birth mother and the protection of the child.


[6] The meaning of the term “conceived” as used in ss (2) (e) (iv) is critical to the court’s jurisdiction in this case. This is because the embryo was created years before the surrogacy arrangement, then frozen and not implanted in th
e uterus until months after the written arrangement was settled. The question now is whether the reference to pre conception as the cut-off point in ss (2) (iv) means before the creation of the embryo or simply any time before the transformation of the embryo into a pregnancy. If it were the earlier point in time, the court would have no power to make a parentage order for LCH.

What does “conceived” mean?

[7] The act offers no definition. This appears to be the first time a court has been asked to interpret ss (2) (e) (iv). Nonetheless, the answer seems
straightforward.  Whatever approach to statutory interpretation is applied, whether it is to view “conceive” as a technical term, or in its everyday meaning, or the meaning that best advances the purposes the Act, the result is the same. The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body.

The everyday meaning

[8] The phrase “conceived a child” is in common usage. It is commonly understood to refer to an actual pregnancy.

[9] One must examine the context of the provision.  This is a provision about surrogacy. As expressed in s 5, the purpose(s) of the Act are to safeguard the interests of the child and regulate surrogacy agreements. There is an underlying intention to protect the birth mother from duress to surrender her child. Such issues only emerge after a pregnancy occurs. The Act applies to all forms of conception. The use of invitro fertilisation is now widespread. In my experience when lay people talk about IVF treatments they tend to reserve the term “conceive” for the circumstance where an embryo actually takes to the uterus and the woman succeeds in becoming pregnant as distinct from even
the procedure of implantation. I am satisfied that in the ordinary everyday language of the community, the term “conceive a child” means more than what can be achieved in a test tube and refers to the commencement of a pregnancy in a woman’s body. This is consistent with the current editions of both the Oxford English dictionary and the Macquarie Dictionary. They define “conceive” as, inter alia, “to become pregnant”. The former publication also defines “conceived”, the adjective, as “brought into embryonic existence in the womb”.

[10] To construe the cut off point in s 22 (2) (e) (iv) as the point of pregnancy (and therefore after fertilisation) is also consistent with the definition of  “surrogacy arrangement “ in s 7 of the Act.

[11] AKV’s eggs were fertilised and preserved before she underwent the emergency procedure that saved her life but left her unable to carry her own children. This was before the Surrogacy Act had come into existence. It was therefore impossible for her to enter into an arrangement under the Act before the embryos were created.  The same situation is likely to confront any woman undergoing emergency procedures in the future, notwithstanding the commencement of the Act. A woman, although desirous of having a baby,
would have little hope of securing a compliant surrogacy arrangement in
advance of an emergency hysterectomy, given the requirements for the identification of a willing surrogate, proper counselling and legal advice with time to reflect on all of the implications. The Act is intended to help such people in genuine need of surrogacy.

[12] Therefore, to interpret the preconception condition as condition to be satisfied before fertilisation would not only be contrary to the ordinary language of the provision, it would frustrate the underlying intention of the Act. There is no reason to reach beyond the common language for the interpretation of s 22 (2) (e) (iv).

The expert evidence

[13] The court has an affidavit from Dr Justin Nasser, an obstetrician and gynaecologist involved in the case, as well as various definitions from medical dictionaries. Of course, the construction of the statute is a matter for the court, not doctors, but the expert evidence of the biological processes is relevant to that task. According to Dr Nasser:

“The creation of the embryos in 2008 was an act of fertilization. Fertilization is a step on the path way to conception. Many eggs fertilise but many fewer pregnancies are conceived. The act of conception or the act of conceiving the pregnancy was the actual embryo transfer and the subsequent implantation of that embryo into the uterus of Lisa over the next couple of days with the eventual positive pregnancy test approximately two week after 7 July 2011... The act of conceiving in this case is viewed as the act of achieving a pregnancy. Therefore, I view the conception of LCH as occurring from the
embryo transfer on 7 July 2011.” Dr Nasser’s professional distinction between
the processes of fertilisation and conception is consistent with the common understanding of what it means to conceive a child. The same can be said of the preponderance of definitions from the medical dictionaries cited.

Authorities outside of the jurisdiction

[14] Despite extensive research, the parties have found only one case in which the notion of conception was considered. This is the English case of
R (John Smeaton on Behalf of the Society for the Protection of Unborn Children) v the Secretary of State for Health.  It was about the legality of
the morning after pill and therefore approached the issue of conception
in the context of sexual intercourse rather than
scientific intervention. The distinction is not a relevant one as regards the true
meaning of conception. Professor James Owen Drife, Professor of Obstetrics and
Gynaecology at the University of Leeds, and, a Vice-President of the Royal College of Obstetricians and Gynaecologists had testified in this way:

“In my view pregnancy begins when the pregnancy test is positive, some ten to fourteen days after conception. My reasons relate to the large numbers of fertilised oocytes which are believed to be lost during the normal menstrual cycle. I do not believe these can be described as “pregnancies”. When teaching students, I describe the processes of spermatogenesis, ovulation and fertilisation as a continuum with implantation and early pregnancy development. I reserve the term “pregnancy” for the phase after implantation. When talking to patients, I would not use the term “pregnancy” until a pregnancy test was positive or a menstrual period had been missed.”

[15]  The weight of evidence in that case led Munby J to conclude:

“Put very simply, there are two key stages in the biological process following sexual intercourse:
     i) The first is fertilisation. This takes place after the man’s sperm and the
            woman’s egg have met...
     ii) The other key stage is implantation. This takes place after the fertilised            egg has moved into the womb. It involves a process by which the       fertilised egg physically attaches itself to the wall of the womb. The      process does not start until, at the earliest, some four days after the   commencement of fertilisation. The process of
            implantation itself takes some days.”


Conclusion

The regulation of ART and surrogacy in Australia will inevitably be slower than the innovations occurring throughout the world. How that regulation will change remains unknown, but future shocks are likely. What the future holds we will not know.

Little did I know just over a year ago that Thailand and then India would lock their doors, that Nepal and Mexico would open them, the former to be temporarily shut again, and other countries, such as Greece would be opening them. We continue to live in interesting times.




[1] Partner, Harrington Family Lawyers, Brisbane, Australia. Stephen is a Fellow of AAARTA. He was admitted as a solicitor in 1987, and has been an accredited family law specialist since 1996. He is an international representative on the American Bar Association’s Artificial Reproductive Technologies Committee, and is the principal advocate and co-author of that Committee’s draft paper on the proposed Hague surrogacy convention. Stephen has advised clients about surrogacy and fertility issues from all eight Australian jurisdictions and at last count 17 overseas countries. In 2012 he obtained a world first precedent that conception occurs with pregnancy, not fertilization.
[2] Jane Cowan, Foreign Correspondent, Australian Broadcasting Corporation, “The Last Resort”, 8/7/14: http://www.abc.net.au/foreign/archives_2014.htm .
[3] Translated from the French: plus ca change, plus c’est la meme chose.
[4] Searching for the golden fleece of sex abusers on the web.
[5] Australian Broadcasting Corporation

[23] Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants http://www.hcch.net/index_en.php?act=conventions.text&cid=39


[24] LAX being one plane flight from Brisbane, Sydney and Melbourne, and Las Vegas just a quick hop over from LAX.
[25] Taken from figures supplied to me by clients. All figures are in Australian dollars.
[26] This includes the hidden costs of getting there and back, accommodation, and getting the baby home.
[27] This one is a guesstimate based on legal costs involving a bitter surrogacy litigation some years ago. I was not involved.
[28] One for everybody, then a separate counsellor for the intended parents, and then a separate counsellor for the surrogate and her partner. Not surprisingly the parties could have different versions of what was agreed.