Monday, May 25, 2015

"Extraordinary expertise in surrogacy"

It is rare that I receive compliments in this job, let alone from politicians, but I recently received compliments from a politician no less. John Dawkins is the Liberal whip in the South Australian Upper House. He has a bill before that Parliament, seeking to amend that State's Family Relationships Act, to create a register for surrogates (so that hopefully there will be more availability of surrogates) but also to ensure that anyone from South Australia who undertakes surrogacy overseas first has the permission of the State Attorney-General, before doing so.

The Bill has now passed the Upper House, although it was opposed by Labor Minister Ian Hunter as it has not removed discrimination against same sex couples. It is likely to be some months before the Bill is debated in the Lower House. The position of the Weatherill government as to the Bill is not known at this stage.

I was recently in Adelaide, and used the opportunity to meet with Mr Dawkins. For reasons of protocol, I am not in a position to say precisely what we discussed. However, talks were fruitful.

I am on the record as saying that South Australia:

  • needs to remove its discriminatory laws, which prevent gays, lesbians and singles from proceeding with surrogacy. It is likely that these laws will not survive a challenge under Federal anti-discrimination laws.
  • needs to remove the requirement that all fertility treatment for surrogacy needs to occur in SA.
  • should have laws to enable the easy alteration of birth records for children born in SA under interstate surrogacy arrangements.
  • needs to clarify what money can be paid to surrogates for their expenses.
  • needs to recognise the partner of the surrogate fully in the process.
  • needs to make sure that rather than having three counsellors at the beginning of the process, which potentially is a recipe for disaster, that there be one counsellor seeing both the intended parents and the surrogate and her partner.
  • needs to ensure that post-birth there is mandatory counselling for all concerned, before orders are made by the Youth Court.
I am also firmly of the view that a provision in the Surrogacy Act (Qld) that the birth mother has the same right as any woman as to how she manages her pregnancy and child birth is a vital protection for surrogates and ought to be copied nationally.

Following the discussions I had with Mr Dawkins, amendments were made by him to his Bill. These amendments included:

  • clearly involving the surrogate's partner in counselling: "Individuals closely associated with a surrogate will be significantly exposed to the process, from the impregnation to the birth of the child, and therefore, in my view, should have access to counselling services to assist them during their partner's surrogacy journey." Mr Dawkins said: "This potential amendment was raised with me by a lawyer who has extraordinary expertise in surrogacy legislation across the commonwealth as a suggested practical improvement to the current bill and law."
  • Counselling for the surrogate and her partner post-birth: "These constituents and experts who have suggested this practical amendment to me believe that counselling for the surrogate and the person closest to them, as their partner, is vital to ensure the mental health and wellbeing of the surrogate couple after parting with the child born as a result of the surrogacy agreement."
  • that there be one counsellor for all parties before signing the surrogacy arrangement: "
    I have moved this amendment after consultation with an expert surrogacy lawyer who I mentioned before and who has had significant experience in the practical implementation of current laws and how they might be improved for the benefit of all parties involved in altruistic surrogacy. The amendment will ensure that the counselling provided to the surrogate, their partner—regardless of whether that relationship is the result of a marriage or de facto or domestic relationship—and the commissioning parents is conducted where practicable by the same qualified and registered counsellor.

    This will enable the counsellor involved to have a holistic view of all the relationships between all of the parties involved in a prospective surrogacy agreement and enable them to issue or not issue a certificate based on the substantial information which will be gathered through this holistic approach. This could help nip—I think that was the term that the lawyer used to me—any potential issues which could arise during the life of the agreement in the bud, so to speak, before the agreement is executed."
    • That the surrogate have the right to control the pregnancy and child birth like any other woman: "While this amendment reflects existing law of the state of South Australia, after speaking with the legal expert in the field of surrogacy whom I mentioned earlier, I decided that it would be my intention with this amendment to reinforce that the surrogate mother—who is giving one of the greatest gifts that any person could ever give to another—has the right to conduct the pregnancy, insofar as it does not contradict the recognised surrogacy agreement agreed to by all parties, as if that surrogate was the natural mother of the child that would be born through the pregnancy that resulted from the agreement."

History making conference in London

Since I last blogged, I have attended four conferences:

  • the American Bar Association family law/assisted reproductive treatment conference in Carlsbad, California. At this conference I spoke about the ownership of gametes, including who owned eggs, sperm and embryos. I also met with officials from the American Bar Association, in an effort to help get the American Bar Association adopt the paper that I have co-written about the proposed Hague convention on international surrogacy arrangements.
  • the history making LGBT Family Law Institute conference in London, at which I moderated a session.
  • the history making International Academy of Matrimonial Lawyers surrogacy symposium in London, at which I spoke about surrogacy in Australia.
  • the national Child Inclusive Forum in Brisbane, where I spoke about when children are interviewed in Family Law Courts proceedings, and especially when judges involve children in the court process.
International Academy of Matrimonial Lawyers surrogacy symposium

The symposium was simply the first time that the Academy has ever gathered together and discussed on one occasion issues to do with surrogacy. It drew on its strengths and had attendees from all over the world, able to give a snapshot in the one place of current global developments. There were speakers from North and South America, Europe, Africa, Asia and Australia. I was privileged to be able to speak about surrogacy in Australia.

The IAML is the leading group of family lawyers worldwide. Membership of IAML is by invitation only. Lawyers who are interested in joining IAML are asked to submit information to satisfy established criteria for membership in order to obtain the approval of the Board of Admissions.  The process is a rigorous one, designed to ensure that the high level of expertise within IAML is maintained. I am a Fellow.

Since 1986, IAML has grown steadily, both in terms of the countries represented and the overall membership. The number of countries now represented is 49 and IAML has over 690 Fellows.

What was clear from the conference was that there were highly divergent views about surrogacy. Those from the US, for example, were very clear that in that country there is a generally recognised right to procreate. This has come about in part because of shameful history when people were involuntarily sterilised, for example.

By contrast the European outlook was much more a child centred approach, in which it was considered that a child has the right to have parents, not that people have the right to parent a child. It was seen that following Baby Gammy there needed to be more checks and balances at an international level in order to protect children.

One of the speakers was Professor Paul Beaumont, who called for a Hague Convention for international surrogacy arrangements, along the lines of the current Hague Intercountry Adoption Convention, which he labelled a "success". He also said that intended parents under surrogacy were "not the same as natural parents". When I questioned Professor Beaumont about this statement, and its impact on for example a woman who has undertaken cancer treatment, or a woman with no uterus, or one with polycystic ovary syndrome, he said that they were not the same as parents who conceived naturally, because they involved third parties. I pointed out that this occurred with non-surrogacy cases, where there were egg, spern or embryo donors.

Another speaker was Rich Vaughn, chair of the American Bar Association's ART Committee (in respect of which I am the co-author with Bruce Hale of the committee's position), which was that any Hague Convention should not be too onerous that the effect of which is to prevent international surrogacy occuring, resulting in intended parents becoming parents through backdoor and hidden paths, away form the eyes of regulators. He said that there was a difference between adoption and surrogacy, the latter involving the transfer of care of an existing child, and the latter the conception of a child through reproduction, and the two should not be conflated.

One of the critics of Professor Beaumont's approach was Herb Brail, President of the American Academy of Adoption Attorneys. He did not see that the Hague Intercountry Adoption Convention was a "success", but that after the Convention was in place there a precipitous decline in the number of adoptions, it would appear in part because of the Convention.

What was clear from the multitude of voices, with many different opinions expressed, is that there will need to be many more discussions in place before the form and outline of a Hague Convention are put in place. It remains likely that in the next two or three years that there will be a Hague Convention in place governing international surrogacy arrangements. Australia has been a keen funder of the Permanent Bureau of the Hague Conference on Private International Law.

It is up to all of us to remain keen and alert, so as to ensure that if there is to be a Hague Convention it is a sensible one, and not one that will repeat the pain, agony, delay and cost that intended parents have long experienced with international adoptions.