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.