FERTILITY NURSES OF AUSTRALASIA CONFERENCE
BROADBEACH 26 MAY 2018
MY DANCE CARD IS FULL – SURROGACY UPDATE
By Stephen Page
FERTILITY NURSES OF AUSTRALASIA CONFERENCE
BRISBANE, 26 MAY 2018
MY DANCE CARD IS FULL – SURROGACY UPDATE
By Stephen Page1
Why my dance card is full?
The simple fact remains that in part due to our acceptance or non-acceptance of surrogacy
and because of our legal settings both as to egg donation and surrogacy, there is a shortage of
egg donors across the country and a shortage of surrogates across the country. Before the
Victorians jump and down and say well there isn’t a shortage of egg donors in Victoria, the
simple fact of the matter is that the reports I continue to receive from clients is that if they
can’t get an egg donor through their networks, their clinic may tell them that there are no
donors available, they may be unwilling to go to one of the clinics that have egg banks and
instead they go overseas. In March 2016, I attended a clinic in Cape Town where the clinic
was seeing 3-5 Australian heterosexual couples seeking egg donation every business day.
I am sure it is no surprise to you, but Aussies have been all over the world for egg donation,
including Argentina2, US, Canada, Greece and Spain, as well as countries where surrogacy
occurs, such as the Ukraine, Russia and Georgia.
Of course, one of the issues about Australians going overseas for egg donation is that the
child may never know who the donor was. In the case of South Africa, the current legal
settings are that children cannot find out who the donor was. One can have great confidence
1 Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He was admitted as a solicitor in 1987 and
has been a Queensland Law Society Accredited Family Law Specialist since 1996. Stephen is a Fellow of the
International Academy of Family Lawyers including being a member of its Parentage/Surrogacy and LGBT
Committees. Stephen is the only Australian Fellow of the American Academy of Adoption and Assisted
Reproduction Attorneys. Stephen is one of three international representatives on the ART Committee of the
American Bar Association. He is a member of the Fertility Society of Australia. He has written and presented
around the world concerning fertility law issues, most recently in Sydney and before that, Nashville.
2 https://america.cgtn.com/2016/07/07/more-couples-heading-to-argentina-for-fertility-tourism, seen 21 May
2018.
2
that clinics there will keep good records as to the identity of the donor. Currently the South
African Law Reform Commission is looking at a proposal to, in essence, copy what we have
done in Australia and has occurred in the UK amongst others - so that the child will be able to
find out the name of the donor. How long this may take and whether it is retrospective, I
don’t know, but there is a clear move to change the settings there.
The numbers of babies born to Australian citizens outside Australia via surrogacy each year
have always been consistently greater than the number of babies born through domestic
surrogacy. I am told that there is currently a domestic surrogacy boom happening, but we
shall see. Most recent figures that I have seen for the number of babies born domestically
through surrogacy is about 40 babies a year.
The most reliable figures I have seen for international surrogacy has typically been about 250
babies born overseas each year who become Australian citizens. That number is understated
because:
there will always be people who tell fibs to the Department of Immigration, typically
heterosexual couples who say they went overseas and had a child, and
visa holders, such as permanent residents, who undertake surrogacy overseas. Their
children will not be counted in the citizenship figures.
Nevertheless, in the 2016/2017 year the number of citizenships granted to children born
through international surrogacy dropped to 142. Time will tell whether that figure is an
anomaly or if it’s the beginning of a trend.
The other feature about Australia is that we are a migrant country. Australians are world
travellers. Just under 50% of our population are migrants or the children of migrants3.
Therefore, there are Australians who have migrated from overseas and wish to undertake
surrogacy in their home country.
3 As of the 2011 census, 26% of Australian residents were born overseas, 8.9% reported that both their parents
were born overseas, and a further 11% reported that one parent was born overseas; a total of 45.9% of the
population: https://www.homeaffairs.gov.au/ReportsandPublications/Documents/research/migrants-
contemporary-australia.pdf seen on 21 May 2018. As of the 2016, 28.5% of Australian residents were born
overseas: http://www.abs.gov.au/ausstats/[email protected]/Latestproducts/3412.0Main%20Features32015-
16?opendocument&tabname=Summary&prodno=3412.0&issue=2015-16&num=&view= seen on 21 May
2018.
3
Example
Prakesh and Indira are migrants to Australia from India. They are Indian citizens. India does
not allow dual citizenship. Therefore if they became Australian citizens, they would have to
cease being Indian citizens. They are permanent residents of Australia. Prakesh and Indira
wish to become parents through surrogacy. They seek to undertake surrogacy in India. They
comply with relevant Australian law and successfully complete their journey. If they were an
Australian couple, they would not be able to undertake surrogacy in India (due to Indian
regulations banning surrogacy for citizens of countries other than India).
In the last two years, clients of mine have considered, attempted or completed surrogacy in
the following countries:
America
Brazil;
Canada;
United States.
Europe
Georgia;
Greece;
Russia;
UK (UK residents);
Ukraine.
Asia
Bangladesh;
Cambodia (where surrogacy has been banned since October 2016);
China (where surrogacy is banned);
India (where surrogacy is only available to Indian citizens);
Iran;
4
Laos/Thailand (where by an under the counter method surrogacy is happening in
Laos, but controlled from Thailand);
Nepal (where surrogacy has been banned since August 2016);
Sri Lanka.
Africa
Ghana;
Kenya;
Nigeria;
South Africa.
Oceania
Australia;
New Zealand.
Light at the end of the tunnel
I want to emphasise that we are lucky to be practising in this area. It is an absolute honour
and privilege to help people become parents. Whilst there have been some bad surrogacy
journeys, surrogacy well-handled is an absolutely magical journey where magic dust spreads
in every direction. Luckily for me some of it happens to fall on me as a bystander.
I tell my clients that it is a certainty that they will become parents through surrogacy. Of
course there are four circumstances in which that won’t occur:
1. They die before the child is born;
2. They don’t have enough patience to persevere if things turn tough;
3. They don’t have enough money to fund the journey;
4. If they are in need of a donor, that they are not prepared to use the assistance of a donor.
On top of whatever other IVF costs they might have incurred previously, from continually
asking our client, the overall cost of surrogacy is:
5
In Australia - $30,000 to $70,000 (the main variant being the cost of IVF);
Canada – A$80,000 to A$120,000 but ball park figure I would budget for A$120,000;
USA – A$145,000 to A$300,000.4
To put some meat on the bones, the kind of costs that are incurred by intended parents in
Australia for the surrogate we have seen have been in the order of usually $9,000 to $15,000.
In one case they were as high as $30,000. That was because the clients had not obtained
disability insurance. The surrogate had to cease work and our clients had to pay for her loss
of wages.
The kind of expenses that a surrogate in Canada would be paid are typically A$20,000 –
A$22,000.
A surrogate in the United States is paid a remarkably diverse fee from as low as US$20,000
to US$60,000 plus.
There is an assumption that if Australians are undertaking surrogacy in Canada, that because
surrogacy in Canada is altruistic that therefore as a matter of course they are compliant with
the law of Australia. That assumption is not right. They might be compliant with the law of
Australia, but it is quite possible that if proper checks haven’t been taken that the couple may
have breached local laws in Australia. Usually these things are easily fixed before signing of
documents.
Similarly, there is an assumption that if a couple are going to the US for surrogacy that they
must be undertaking commercial surrogacy. As I set out below, that assumption in light of a
court case in 2016 may not be accurate either. I cannot emphasise enough how important it is
for those contemplating surrogacy overseas to get expert legal advice about their surrogacy
journey before they commence.
4 The sources are from continually asking my clients, and reviewing retainer agreements for lawyers, IVF
clinics, surrogacy and egg donor agencies, as well as surrogacy arrangements, gestational carrier and egg
donor agreements.
6
Overview of surrogacy in Australia
I am sure that everyone listening today or reading this paper will be aware that surrogacy in
Australia is allowed if it is altruistic. Each of the States and the ACT have laws in place to
ban commercial surrogacy.
The Northern Territory still has no laws about surrogacy. One might think therefore that
there is a free for all in the Northern Territory. In reality, residents of the Territory will go
interstate or more likely overseas. The only IVF clinic in the NT, Repromed, if it decided to
provide surrogacy services, would be limited in doing so to only altruistic surrogacy because
of the NHMRC Ethical Guidelines. The absence of laws in the NT means that parentage
cannot be transferred from the surrogate to the intended parents. Repromed therefore has
taken the decision not to provide any surrogacy services in the NT.
A reminder – surrogacy is not a medical process. IVF, or more correctly ART, is a medical
process. Surrogacy is a legal process to transfer the parentage of a child from a surrogate
(and if she has a partner or spouse from them) to the intended parent or parents.
A recap on history
Just to take you back through some recent history, about 13 years ago then ALP Senator
Stephen Conroy, from Victoria, and his wife Paula Benson were unable to access surrogacy
in Victoria. She was unable to carry a child. Instead they travelled to Sydney to undertake
surrogacy. The story was taken up by the Sydney Morning Herald 5which then prompted the
then Federal Attorney-General Philip Ruddock to poke the States to ensure that there were
adequate surrogacy laws in place. A consensus was developed through SCAG, the Standing
Committee of Attorneys General, that there would be reforms to allow altruistic surrogacy to
occur, but that commercial surrogacy would be banned.
5 https://www.smh.com.au/news/national/and-baby-makes-five--the-senator-his-wife-and-the-surrogate-
mothers/2006/11/06/1162661615860.html seen on 21 May, 2018.
7
Before these changes occurred, surrogacy on an informal basis was able to occur in New
South Wales. Since 2004 the ACT allowed altruistic surrogacy to occur under its Parentage
Act.
There was then a veritable gold rush while each of the States held their own inquiry and
passed laws to enable altruistic surrogacy:
Assisted Reproductive Treatment Act 2008 (Vic);
Surrogacy Act 2008 (WA);
Surrogacy Act 2010 (Qld);
Surrogacy Act 2010 (NSW);
amendments to the Family Relationships Act 1975 (SA) in 2011;
Surrogacy Act 2012 (TAS).
Regrettably, we don’t have a uniform model of regulation in Australia.
Each of the States thinks pretty well that what they have legislated is great and wonderful and
marvellous. If only that were the case.
Whilst in broad terms each of the States and the ACT have legislated for altruistic surrogacy
and a banning of commercial surrogacy, there are great variants in the law which add cost
and complexity to the journey for any intended parents. They can make that journey either a
lawful one or a criminal one.
Example
Matthew and Mark are a couple who want to be parents. They lived in Queensland. Their
long term friend Mary, who lived in New South Wales, offered to be a traditional surrogate.
The three parties entered into a Queensland surrogacy arrangement. Although the then New
South Wales Attorney-General John Hatzistergos said that New South Wales liked the
Queensland model and would copy the Queensland Surrogacy Act, New South Wales did so
but with changes and additions!
The result? When the surrogacy arrangement was drafted, two clerks of my office had to
8
read the relevant expenses provisions of the New South Wales and Queensland Acts side by
side to determine therefore what the differences were. If we didn’t identify those differences
properly, then the parties would have entered into a commercial surrogacy arrangement by
accident, and therefore have committed offences in either or both Queensland and New South
Wales – and it is likely that each of the lawyers by acting for them would also have been
committing offences in either or both places.
The conclusion? Although drafted differently, the expenses provisions of both Acts were
identical!
When the matter came before the Childrens Court at Queensland, the Judge agonised about
how he was able to make an order concerning a child born interstate. What may have been a
short appearance became a long appearance, but nevertheless orders were made. The orders
were then transmitted to the New South Wales Registrar of Births, Deaths and Marriages.
New South Wales legislation specifically allows for the recognition of interstate parentage
orders, such as the order my clients had obtained.
As it was the first order of its kind sought to be registered in New South Wales, it took –
unbelievably and ironically – nine months for the parents’ details to be altered on the birth
register so that my clients were recognised as the parents and the surrogate was no longer
recognised as a parent.
Differences in the model of regulation
There are essentially two separate models of regulation:
The agreement model;
The regulator model.
The agreement model
Everywhere in Australia if a surrogacy arrangement is entered into, it is not legally binding,
except perhaps if the surrogate doesn’t hand over the child and consent to the order, in which
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case she may have to repay money spent on her expenses, or on the other hand if the intended
parents don’t pay then they might be obliged to do so. Whilst some laws are clear about that,
such as the Surrogacy Act of Queensland, other places are not.
Under the agreement model, certain things are done before a surrogacy arrangement is
entered into, namely counselling and legal advice. Depending on the model, post birth there
may be counselling, a report or reports or none at all before going to court and seeking an
order. This model varies dramatically to the regulator model.
The regulator model
This exists in Victoria and Western Australia. In each of those States approval must be
gained by the relevant State regulator – in Victoria the Patient Review Panel, and in Western
Australian the Reproductive Technology Council – before the surrogacy arrangement can
proceed. There is built-in delay with each of those models, but particularly in Western
Australia.
These figures from Western Australia are telling. Western Australia has just under 10% of
Australia’s population at 2.4 million people of a population of 25 million. In recent years on
average one surrogacy arrangement a year has been approved by the Reproductive
Technology Council. If the WA population is reflective of the national whole, then
approximately 25 surrogacy arrangements a year in most years6 are entered into by WA
residents. Twenty-four of those are overseas. A regulatory regime that regulates 1 in 25 birth
smacks of the episode of Yes, Minister, when bureaucrat Sir Humphrey Appleby lauds the
Minister, Jim Hacker about a particular hospital for having the best statistics in the country-
but the hospital has no patients.
Oral agreements
As I once heard a Family Court Judge say:
“An oral agreement is worth the paper it’s written on.” 6 On the basis that 250 children are born to Australian citizens overseas through surrogacy.
10
Nevertheless, both the ACT and Victoria allow oral agreements. It seems extraordinary that
one must need regulatory approval in Victoria for a surrogacy arrangement, but the
arrangement need not be put in writing.
11
So what is commercial surrogacy?
We know that commercial surrogacy is something that is not altruistic surrogacy. One might
think that there is a common definition of what is commercial surrogacy and what is altruistic
surrogacy. As Oscar Wilde said “to assume is to make an ass out of you and me”. To make
that assumption is to make a fundamental mistake. The devil is in the detail. There are
widely differing definitions of what is commercial and what is not.
Going overseas comparison
Those going overseas for egg donation or surrogacy may be committing offences back
home7.
Committing offences by going overseas?
Jurisdiction Human tissue Payment of
donor’s expenses
above reasonable
Surrogacy
Commonwealth No No No
Qld Yes Yes Yes-commercial
NSW Yes Yes Yes-commercial
ACT Yes Yes Yes-commercial
Victoria No No No
Tasmania No No No
South Australia Yes Yes Yes- if contract,
even if altruistic
WA Yes Yes Yes-commercial
NT Yes No No
7 Every case is different. The laws in this area can be finely nuanced. Expert legal advice should be obtained by
intended parents looking at going overseas for ART or surrogacy- before they sign anything or make any
payment.
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Queensland
Surrogacy Act 2010 (Qld)
Surrogacy is regulated under the Surrogacy Act 2010 (Qld).
The offences are:
To advertise: section 55;
To enter into or to offer to enter into a commercial surrogacy arrangement: section 56;
To give or receive consideration, i.e. make or receive payment under a commercial
surrogacy arrangement: section 57;
To provide technical professional medical services to a surrogate of a commercial
surrogacy arrangement before she becomes pregnant: section 58.
Going overseas
The offences are committed either for acts done in Queensland or acts done outside
Queensland if the person was ordinarily resident in Queensland: section 54. Queensland has
a long arm provision: section 12 of the Criminal Code 1899 (Qld). What is a commercial
surrogacy arrangement is defined in section 10 but the essence is that the surrogacy
arrangement involves payments that is more than the reimbursement of the birth mother’s
surrogacy costs. They in turn are defined under section 11:
“(1) A
"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated
with any of the following matters —
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother’s spouse (if any) being a party to a
surrogacy arrangement or proceedings in relation to a parentage order.
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(2) Without limiting subsection (1), the following amounts are a birth mother’s surrogacy
costs —
(a) a reasonable medical cost for the birth mother associated with any of the
matters mentioned in subsection (1);
Example: a cost incurred before conception if the birth mother consults a medical
practitioner to find out if she is capable of carrying a pregnancy before undergoing a
fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost, for a child born as a
result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have
been obtained by the birth mother if the surrogacy arrangement had not been
entered
The key to section 11 is that the cost must be reasonable. It is very hard to define what is
reasonable because there have been no prosecutions to date. The great shopping list of
expenses under 11(2) is just that, a list of examples. To work out whether something is a cost
that is within section 11, it is necessary to go to section 11(1).
Example
Annabelle is the proposed surrogate for James and Charlotte. Annabelle lived in Queensland
with her husband David. James and Charlotte, the intended parents, lived in New South
Wales. Annabelle ran her own business, being a dog walker. She did so wearing inline
skates.
During the course of the surrogacy, she wanted, as she had had with her previous
pregnancies, both acupuncture and massages.
I acted for Annabelle. The solicitor for James and Charlotte initially was opposed to
massages and acupuncture because these would render the surrogacy arrangement a
commercial surrogacy arrangement. They were not listed in section 11(2) and the equivalent
provision in the New South Wales Act (remembering that the NSW and Qld Acts are very
similar on this issue). I said that they were reasonable costs often incurred by pregnant
women, did not render the surrogacy arrangement to be commercial and should occur. The
14
solicitor relented.
Annabelle wanted to engage a locum for her business during the course of the pregnancy. The
solicitor for the intended parents was opposed to this because it wasn’t within section 11(2)
and the equivalent provision of New South Wales, and taking time off under section 11(2)(f)
entailed:
“The value of the birth mother’s actual lost earnings because of leave taken –
(i) for a period of not more than 2 years during which a birth happened or was
expected to happen; or
(ii) for any other period during the pregnancy when the birth mother was unable
to work on medical grounds.”
Aside from dealing with (ii) I noted that my client was self-employed and therefore was
outside the ordinary scope of (f). In any event, I was not going to have my client, pregnant
with someone else’s child, being hauled by a bunch of dogs up and down hills whilst on roller
skates. She was not profiting by employing a locum, but preserving her business.
The other solicitor relented.
The surrogacy proceeded and ultimately orders were made in the Supreme Court of New
South Wales without drama.
Example 2
One Saturday morning:
The sun was shining. The flowers were blooming. Birds were chirping. Bees were going
about their business. Stewart was digging in the garden and his wife Rosalie was happily
singing in the house when into this paradise, came three plain clothes detectives walking
down the driveway. Australia’s anti-money laundering agency, Austrac, had detected a
payment by the couple to an overseas IVF clinic. The agency referred the matter to the
Australian Federal Police, who quickly found out when the couple had left Australia and
returned to Australia. The Australian Federal Police referred the matter to local police on
15
suspicion that the couple had engaged in child trafficking or international commercial
surrogacy.
The police then interviewed the couple. Subsequently, I spoke with the police. Given the
facts of the case, the police decided to take no further action.
The myth that police will never prosecute for surrogacy offences is clearly just that – a myth.
The police officer told me that there is great agitation in Canberra about Australians engaging
in commercial surrogacy overseas. Whilst the actions by Austrac were unprecedented, if they
have happened once, they will happen again.
Re Halvard [2016] FamCA 10518
The common view has been that those who go to the United States must, by definition, be
engaged in commercial surrogacy. Re Halvard demonstrates that that assumption may be
false.
The intended parents lived in the United States. The husband was an Australian citizen and
the wife a US citizen. They underwent surrogacy in the US. Prior to the birth of the child an
order was made, the effect of which was that they were the parents under the law in the US
where the child was born.
The child was born and obtained Australian citizenship. The couple sought to register the US
surrogacy order in Australia, the effect of which would be that the couple would for all
purposes be the parents of the child under Australian law. They were successful. This is the
first time that any surrogacy order was able to be registered.
A previous attempt had been made in 2013 in Carlton and Bissett9, which involved a South
African man who obtained a pre-birth order naming him as the father under the Childrens Act
8 http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2016/1051.html seen on 21 May 2018.
9 www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/143.html seen on 21 May 2018.
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prior to his twins being born. He had migrated to Australia and then sought that he be
recognised as the parent. He ultimately succeeded under a comity argument but his first
argument was that the South African order be registered in Australia because it was an
overseas child order, a phrase that appears in the Family Law Act. An order can only be
registered if it is an overseas child order. The court in that case held that the South African
court order was an overseas child order, but it was unable to be registered because South
Africa was not a prescribed overseas jurisdiction, as South Africa was not named in the list
contained in the Family Law Regulations. It is still not named. 48 of the 51 US jurisdictions
are named.
Justice Forrest was of the view that the pre-birth order was of its nature similar to a post birth
order made in New South Wales or Queensland.
In the exercise of discretion as to whether or not the court should register the US order, the
solicitor for the parents said that the surrogacy arrangement was commercial within the
meaning of both the Queensland and New South Wales Surrogacy Acts, but nevertheless it
should be registered, in the best interests of the child. His Honour was of the view that the
solicitor was mistaken and that it was not commercial surrogacy, but altruistic and that
although generous, the costs for the surrogate were still reasonable within the meaning of the
NSW and Queensland Acts. As it was altruistic, it was therefore able to be registered. If it
had been commercial it may not have been able to be registered. The court ordered that the
names of the solicitors who acted for the applicants not be published.
New South Wales
Surrogacy Act 2010 (NSW)
There are two offences in New South Wales:
1. To advertise (except there it is an altruistic surrogacy arrangement and no money has
been spent on the advertisement);
2. Entering into or offering to enter into a commercial surrogacy arrangement.
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There is no specific offence for assisting someone, but if you are aware that someone is
entering into a proposed commercial surrogacy arrangement and you assist them, you may be
a principal offender by virtue of general provisions of criminal law. If in doubt, get legal
advice first!
New South Wales has two alternate tests about extending jurisdiction:
1. Section 10C of the Crimes Act 1900 (NSW);
2. Section 11(2) Surrogacy Act.
The offence is committed by a person ordinarily resident or domiciled in New South Wales,
wherever the surrogacy arrangement might be: section 11(2) Surrogacy Act.
Most States have a long arm law. This is the law that extends the jurisdiction of the State
outside the State for criminal offences, i.e. like the long arm of the law. In New South Wales
it is section 10C of the Crimes Act which provides that if the circumstances for an offence
arise and part of the act occurs in New South Wales that constitutes the offence or the effect
of the act occurs in New South Wales that constitutes the offence, then the offence occurs in
New South Wales.
There is limitation as to how section 10C will apply to surrogacy. In the Family Court in
2011 a judge delivered on the one day four judgments relating to two couples from
Queensland and two couples from New South Wales who underwent surrogacy in Thailand.
Justice Watts referred the two Queensland couples to Queensland authorities for
consideration of prosecution10. His Honour did not refer the New South Wales couples. His
Honour found that they fell within the Assisted Reproductive Technology Act, as they had
signed their surrogacy agreements before the Surrogacy Act commenced. His Honour
10 Dudley and Chedi [2011] FamCA 502 http://www.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/FamCA/2011/502.html; Findlay and Punyawong [2011] FamCA 503
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/503.html both seen 21 May 2018.
18
considered section 10C of the Crimes Act but considered that it was unlikely that they had
committed any offence11.
Intended parents from New South Wales can, in light of Re Halvard, undertake surrogacy
overseas lawfully if they engage in great care – and get expert legal advice first!
What is a commercial surrogacy in New South Wales is very similar to that in Queensland,
namely a surrogacy arrangement where the payment is greater than the birth mother’s
surrogacy costs. These are defined in section 7 of the Surrogacy Act 2010:
“(1) For the purposes of this Act, a
"birth mother's surrogacy costs" are the birth mother's reasonable costs associated
with any of the following matters:
(a) becoming or trying to become pregnant,
(b) a pregnancy or a birth,
(c) entering into and giving effect to a surrogacy arrangement.
(2) The reasonable costs associated with becoming or trying to become pregnant include
any reasonable medical, travel or accommodation costs associated with becoming or
trying to become pregnant.
(3) The reasonable costs associated with a pregnancy or birth include the following:
(a) any reasonable medical costs associated with the pregnancy or birth (both
pre-natal and post-natal),
(b) any reasonable travel or accommodation costs associated with the pregnancy
or birth,
(c) any premium paid for health, disability or life insurance that would not have
been obtained by the birth mother, had the surrogacy arrangement not been
entered into,
(d) any reasonable costs, including reasonable medical costs, incurred in respect
of a child (being the child of the surrogacy arrangement),
11 Hubert and Juntasa [2011] FamCA 504 http://www.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/FamCA/2011/502.html ; Johnson and Chompunut [2011] FamCA 505
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/505.html both seen 21 May 2018.
19
(e) the cost of reimbursing the birth mother for a loss of earnings as a result of
unpaid leave taken by her, but only for the following periods:
(i) a period of not more than 2 months during which the birth happened
or was expected to happen,
(ii) any other period during the pregnancy when the birth mother was
unable to work on medical grounds related to pregnancy or birth.
(4) The reasonable costs associated with entering into and giving effect to a surrogacy
arrangement include the following:
(a) the reasonable costs associated with the birth mother and the birth mother's
partner (if any) receiving counselling in relation to the surrogacy
arrangement (whether before or after entry into the arrangement),
(b) the reasonable costs associated with the birth mother and the birth mother's
partner (if any) receiving legal advice in relation to the surrogacy
arrangement or a parentage order relating to the surrogacy arrangement,
(c) the reasonable costs associated with the birth mother and the birth mother's
partner (if any) being a party to proceedings in relation to such a parentage
order, including reasonable travel and accommodation costs.
(5) A cost is reasonable only if:
(a) the cost is actually incurred, and
(b) the amount of the cost can be verified by receipts or other documentation.
(6) In this section:
"medical costs" does not include any costs that are recoverable under Medicare or
any health insurance or other scheme.”
The comments in Re Halvard apply to this legislation as they do to the Queensland Act.
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Australian Capital Territory
Parentage Act 2004 (ACT)
The offences are entering into a commercial substitute parenting agreement: section 41;
Procuring a commercial substitute parenting agreement: section 42.
The offence is committed if it occurs overseas when the party is ordinarily resident in the
ACT: section 45.
The ACT has a long arm provision similar to section 10C of the Crimes Act 1900 (NSW):
section 64 of the Criminal Code 2002 (ACT).
The ACT does not adequately define what are the expenses that can be paid to the surrogate?
In broad terms the definition is similar to that in Queensland or New South Wales, although
arguably narrower, as it refers to expenses connected with the pregnancy or the birth or care
of a child born as a result of that pregnancy: section 40 Parentage Act 2004.
The ACT doesn’t have as many barriers as other places because of its small size. It is
possible for someone who lives in the ACT to move to New South Wales during the
surrogacy journey so that the flexibility under the New South Wales legislation can apply –
provided that the surrogacy arrangement at commencement is a New South Wales surrogacy
arrangement.
Victoria
Assisted Reproductive Treatment Act 2008 (Vic)
Assisted Reproductive Treatment Regulations 2009 (Vic)
21
One offence in Victoria is that a surrogate mother must not receive any material benefit or
advantage as a result of a surrogacy arrangement: section 44(1) Assisted Reproductive
Treatment Act 2008.
The offence is not committed if only prescribed costs are paid: section 44(2).
Under regulation 10 the following costs are prescribed:
(a) Any reasonable medical expenses associated with the pregnancy or birth that are not
recoverable under Medicare, health insurance or another scheme;
(b) Any legal advice obtained for the purposes of the legal consequences of entering into
the arrangement12;
(c) Travel costs relating to the pregnancy or birth.
Being a surrogate in Victoria necessarily means that the surrogate will be out of pocket. One
can instantly see the types of expenses that are not included. The example of Annabelle
above, to pay acupuncture, massage or for a locum, would all not be prescribed expenses-
which means that all the parties would be committing a criminal offence because they are
deemed to have engaged in commercial surrogacy.
It is not an offence for Victorian residents to undertake surrogacy overseas.
Checklist of comparison between NSW and Victoria
To illustrate the problem, I have set out below a comparison as to what expenses can be paid
between section 7 of the Surrogacy Act 2010 (NSW) and section 44 of the ART Act 2008
(Vic) and regulation 10 of the ART Regulations 2009 (Vic).
Expense NSW VIC
Any reasonable medical costs associated
with the pregnancy or birth
Allowed: altruistic Allowed: if they are
not recoverable under
12 By reference back to s.43(c).
22
Expense NSW VIC
Medicare, health
insurance or another
scheme, otherwise
criminal.
Travel costs Allowable if reasonable. Allowable.
Accommodation costs Allowable Not allowable –
criminal.
Health insurance for the surrogate –
obtained for the surrogacy arrangement
Allowable. Criminal.
Disability insurance obtained for the
surrogate because the surrogacy
arrangement has been entered into
Allowable. Criminal.
Life insurance obtained for the surrogate
– because the surrogacy arrangement has
been entered into.
Allowable. Criminal.
Reasonable costs including reasonable
medical costs incurred in respect of a
child (being the child of the surrogacy
arrangement)
Allowable. Criminal.
Reimbursing the surrogate for loss of
earnings due to the pregnancy – either 2
months or a greater period because she is
unable to work on medical grounds
related to medical or birth
Allowable. Criminal.
Implications counselling for a surrogate
provided on behalf of an IVF clinic about
social and psychological implications of
entering into the arrangement
Allowable. Allowable.
Counselling about relinquishment and
the relationship between the surrogate
mother and the child once it is born.
Allowable. Allowable.
Legal advice before entry into the
surrogacy arrangement.
Allowable. Allowable.
Legal advice and representation after
entering into the surrogacy arrangement.
Allowable. Criminal.
Travel and accommodation for going to
Court.
Allowable Criminal.
23
Tasmania
Surrogacy Act 2012 (Tas)
Section 40 makes it an offence to enter into or to offer to enter into a commercial surrogacy
arrangement, with a fine not exceeding 100 penalty units.
Like the Queensland or NSW Acts, section 8 defines what is a commercial surrogacy
arrangement:
“A surrogacy arrangement is a commercial surrogacy arrangement if it provides for
a person to receive a payment, reward or other material benefit or advantage (other
than the reimbursement of the birth mother's surrogacy costs) for the person or
another person –
(a) agreeing to enter into, or entering into, the surrogacy arrangement; or
(b) giving up a child born as a result of the surrogacy arrangement to be raised by the
intended parent or intended parents; or
(c) consenting to the making of a parentage order in relation to a child born as a
result of the surrogacy arrangement.”
What is a birth mother’s surrogacy costs in section 9 is in essence the same as section 11 of
the Queensland Act:
“ (1) In this section –
legal cost includes fees for obtaining legal advice and legal representation, court fees,
and registry fees associated with registration of a birth and transfer of parentage;
medical cost means a medical cost to the extent that it is not recoverable under
Medicare or any health insurance or other scheme.
(2) A birth mother's surrogacy costs are the birth mother's reasonable costs
associated with any of the following matters in relation to a surrogacy arrangement
to which the birth mother is a party:
(a) becoming, or trying to become, pregnant;
(b) a pregnancy or birth;
(c) the birth mother and the birth mother's spouse, if any, being a party to the
surrogacy arrangement or proceedings in relation to the obtaining of a parentage
order or a parentage order that has been obtained.
(3) Without limiting subsection (2) , the following amounts are a birth mother's
surrogacy costs in relation to a surrogacy arrangement to which the birth mother is a
party:
(a) a reasonable medical cost, for the birth mother, associated with any of the matters
mentioned in subsection (2) ;
24
(b) a reasonable cost, including a reasonable medical cost, for a child born as a
result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have
been obtained by the birth mother if the surrogacy arrangement had not been entered
into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in
subsection (2) , including the cost of counselling, in relation to the surrogacy
arrangement, obtained by the birth mother or the birth mother's spouse, if any;
(e) a reasonable legal cost for the birth mother and the birth mother's spouse, if any,
relating to the surrogacy arrangement, the obtaining of a parentage order or a
parentage order that has been obtained;
(f) the value of the birth mother's actual lost earnings because of leave taken –
(i) for a period of not more than 2 months during which a birth happened or was
expected to happen; or
(ii) for any other period during or after the pregnancy when the birth mother was
unable to work on medical grounds associated with the pregnancy or the end of a
pregnancy;
(g) travel and accommodation costs associated with the surrogacy arrangement;
(h) another reasonable cost associated with the surrogacy arrangement, the obtaining
of a parentage order or a parentage order that has been obtained.”
Commercial brokerage or advertising of surrogacy arrangements is prohibited: s.41. When
the Surrogacy Bill was passing through Parliament, there was an Upper House inquiry. I gave
evidence. I was critical of the drafting of section 41(as it then stood) as I said it could be
argued that section 41 prohibited Tasmanians from undertaking surrogacy overseas. The Bill
was amended in light of my evidence to ensure that it is clear- Tasmanians do not commit an
offence by entering into an overseas commercial surrogacy arrangement.
South Australia
Family Relationships Act 1975 (SA)
Offences
1. Except as authorised by or under the Family Relationships Act 1975 or the State
Framework for Altruistic Surrogacy, a person who for valuable consideration, negotiates,
arranges or obtains the benefit of a surrogacy contract on behalf of another: section
10H(1).
25
2. A person who, for valuable consideration, induces another to enter into a surrogacy
contract.
The definition of surrogacy contract is in section 10F, meaning:
“A contract under which –
(a) A person agrees –
(i) to become pregnant or seek to become pregnant; and
(ii) to surrender custody of, or rights in relation to, a child born as a result of the
pregnancy; or
(b) A person who is already pregnant agrees to surrender custody of, or rights in
relation to, a child born as a result of the pregnancy, but does not include a
contract that forms part of, or relates to, a recognised surrogacy agreement or
proposed recognised surrogacy agreement.”
A recognised surrogacy agreement is defined in section 10F as meaning:
“A recognised surrogacy agreement under section 10HA(2) and includes, for the
purposes of Division 3 –
(a) A surrogacy agreement (however described) entered into in accordance with a
prescribed corresponding law of the Commonwealth, or of another State or
Territory; and
(b) A prescribed international surrogacy agreement.”
Prescribed international surrogacy agreement is defined in section 10F as meaning:
“(a) A surrogacy agreement (however described) under a law of another country that is
declared by the regulations to be a prescribed international surrogacy agreement; or
(b) A surrogacy agreement (however described) relating to surrogacy arrangement
between commissioning parents resident in this State and a person resident in another
country and approved by the Minister for the purposes of this paragraph.”
26
A recognised surrogacy agreement as set out in section 10HA as to the requirements in South
Australia which include the agreements states that no valuable consideration is payable
under, or in respect of, the agreement, other than for expenses connected with or consisting of
–
“(A) A pregnancy (including any attempt to become pregnant) that is the subject of the
agreement; or
(B) The birth or care of a child born as a result of that pregnancy; or
(C) Counselling or medical services provided in connection with the agreement (including
after the birth of a child); or
(D) Legal services provided in connection with the agreement (including after the birth of
a child); or
(DA) Any reasonable out of pocket expenses incurred by the surrogate mother in respect to
the agreement; or
(E) Any other matter prescribed by the regulations for the purposes of this provision.
There is no agreement that has been prescribed for section 10F and nor is there any
prescription for the purposes of section 10HA(2)(ix)(e).
There is a requirement that the agreement states the commissioning parents will, in
accordance with any requirements in the State Framework for altruistic surrogacy, take
reasonable steps to ensure that the surrogate mother and her husband or domestic partner (if
any) are offered counselling (at no cost to the surrogate mother or her husband or domestic
partner) after the birth of a child to which the agreement relates (including, to avoid doubt, a
still-birth).”
27
In considering whether to make an order, the Court has to take into account whether valuable
consideration (other than as is authorised under section 10HA(2)(b)(ix)) has been given or
received by either of the commissioning parents, or either of the child’s birth parents, for or
in consideration of –
“(i) the making of the order; or
(ii) the handing over of the child to the commissioning parent; or
(iii) the making of any arrangements with a view to the making of the order.”
When amendments were proposed to the Family Relationships Act in 2014 I was quite critical
of the then Act. It was similar to that in Victoria, for example, where it was unclear as to
whether life insurance for the surrogate could be met. The amendment introduced in 2015
allows: “Any reasonable out of pocket expenses incurred by the surrogate mother in respect
of the agreement” which is such a wide ranging term that could well allow expenses as
envisaged in Queensland, New South Wales or Tasmania, provided that they are reasonable.
The previous problems with what a surrogate could be paid have been avoided.
South Australia has a long arm provision, section 5G of the Criminal Law Consolidation Act
1935 (SA).
Mr John Dawkins MLC, who has been the driving force for change to surrogacy legislation in
South Australia over many years, said that when the current amendments were debated in
2014/2015, that the advice he had received was that in theory an offence would be committed
by entering into a surrogacy arrangement overseas but in reality a prosecution was almost
impossible.
His solution was in effect to require anyone who was going overseas, whether for altruistic or
commercial surrogacy, to obtain the permission of the relevant minister, who in turn would
be guided by the Family Relationship Regulations and by the State Framework for Altruistic
Surrogacy. Those laws took effect in July 2015. Now, almost 3 years later, those relevant
regulations do not exist and neither does the State Framework in finalised form. It has been
put to me that South Australian ministers do not want to own an overseas surrogacy problem
and nor does the Minister concerned want to spend many hours researching whether or not
28
that particular surrogacy overseas is appropriate for that particular intended parent or parents.
That arrangement has gone nowhere. In my view, with care, and especially with extremely
careful legal advice, it is lawful for someone in South Australia to engage in surrogacy,
including commercial surrogacy, overseas – but there needs to be the most careful legal
advice on point.
A bill came before the last Parliament to get rid of the requirements for the State Framework
for Altruistic Surrogacy and overseas approval, and to rejig the Family Relationships Act to
be along the lines of the Surrogacy Act 2010 (NSW). That Bill died with the last Parliament.
There has been a change of Government in South Australia so I don’t know whether the Bill
will be revived or indeed if a new bill of a different kind is put before Parliament.
Western Australia
Surrogacy Act 2008
The offences
Making a surrogacy arrangement that is for reward: section 8;
Reward for introducing parties for a surrogacy arrangement: section 9;
Advertising: section 10;
Providing a service connected with a surrogacy arrangement that is for reward: section
11.
It is therefore an offence in Western Australia for a lawyer in Western Australia to give
advice about a surrogacy arrangement that is not strictly in compliance with WA law.
Anyone contemplating undertaking surrogacy overseas should not go to a WA lawyer for
advice because the WA lawyer may be committing an offence in providing advice.
A surrogacy arrangement that is for reward is defined in section 6, being an arrangement
which:
29
“(1) Provides for any person to receive any payment or valuable consideration other than
for reasonable expenses associated with –
(a) The pregnancy or the birth; or
(b) Any assessment or expert advice in connection with the arrangement.
(2) Reasonable expenses associated with achieving, or attempting to achieve, the
pregnancy and reasonable expenses associated with the pregnancy.
(3) An expense is a reasonable expense for the purposes of subsection (1)(a) to the extent
only that it is –
(a) A reasonable medical expense that is not recoverable under any health insurance
or other scheme; or
(b) The value of earnings foregone because of leave taken –
(i) For a period of not more than 2 months during which the birth occurs or is
expected to occur; or
(ii) At any other time for medical reasons arising during the pregnancy; or
(c) A reasonable expense of psychological counselling; or
(d) A premium payable for health, disability or life insurance that –
(i) Would not have been taken out of the surrogacy arrangement had it not been
entered into; and
(ii) Provides cover for a period during which an expense referred to in another
paragraph of this subsection is incurred or might be, or have been expected to
be, incurred.”
30
If we go back to the example of Annabelle, to pay for a massage or acupuncture or a locum
for Annabelle in Western Australia would be a criminal offence. To pay for a reasonable
medical cost for a child born as a result of the surrogacy arrangement is a criminal offence,
unless it can be shown to be an expense associated with the birth. To pay for legal
representation of the surrogate post birth is a criminal offence.
WA is our largest State. One might have thought in Western Australia that there would be
allowance for travel and accommodation. To pay for travel and accommodation of a
surrogate in Western Australia is a criminal offence.
The common view that is held is that to go overseas for surrogacy in Western Australia is
lawful. The judgment in the Baby Gammy case of Farnell and Chambua [2016] FCWA 17,
makes plain that the long arm provision of Western Australian law - section 12 of the
Criminal Code - extends to surrogacy, so that someone who is going overseas and enters into
a surrogacy arrangement that is for reward may be committing a criminal offence.
Similarly, someone who is in Western Australia and is looking to undertake surrogacy
interstate (either as an intended parent or surrogate) may by the same provisions be
committing a criminal offence.
Discrimination in ART
Following criticism at the United Nations, on 1 August 2016, exemptions that were allowed
under the Federal Sex Discrimination Act 1992 for State laws which discriminated against
LGBTI people in the provision of services, employment, housing etc were removed (with the
exception of Western Australia where the exemption was removed on 1 August 2017).
Nevertheless, there appear to be pockets of discrimination that apply in ART:
The Australian Government is very generous in funding ART through our universal
health scheme, Medicare. It is not unknown that women have had up to 36 IVF cycles
partly funded by the taxpayer. For the taxpayer to provide a government rebate, the
couple must be considered to be infertile. The classic definition of infertility is that of a
31
heterosexual couple who are unable to conceive after trying consistently through
unprotected sexual intercourse over 1 year. A rebate will only be paid if the doctor is of
the view that the person is infertile. Some doctors still follow that classical definition,
which means that single people and LGBTI couples may not be eligible for the rebate,
costing them thousands of dollars. Other doctors consider those couples to be infertile.
Intended parents won’t know the outcome until they talk to the doctor. Recently I saw
online a discussion amongst intended parents about which clinics/doctors did provide the
rebates for gay intended fathers, and those that did not.
There is an exemption for surrogacy. The rebate won’t be provided for surrogacy. There
are differing opinions about the regulations13. Some are of the view that the effect of the
regulations is that the rebate won’t be paid once a surrogacy arrangement has been
signed. Others are of the view that if the doctor or clinic suspects that there will be
surrogacy (for example a gay couple walks into the room…) then the rebate is not
payable. The cost for a couple can be large- making the difference per cycle from
A$4,000-$5,000 out of pocket with the rebate, to up to A$17,000 out of pocket without
the rebate.
Table showing discrimination in ART in Australia
Jurisdiction Discrimination?14
Commonwealth No: s.22 Sex Discrimination Act 1992 (Cth)
Qld Yes. S.45A Anti-Discrimination Act 1991 (Qld) allows
discrimination on the basis of sexuality and relationship status.
However, this section appears not to be in force, in light of s.22
of the Sex Discrimination Act.
NSW No
ACT Yes. The surrogate and her partner must be a couple: s.26(1)(b),
13 Item 2.37.7 of the Health Insurance (General Medical Services Table) Regulations 2017 (Cth): “Items 13200 to
13221 do not apply to a service provided in relation to a patient’s pregnancy, or intended pregnancy, that is, at
the time of the service, the subject of an agreement, or arrangement, under which the patient makes provision
for transfer to another person of the guardianship of, or custodial rights to, a child born as a result of the
pregnancy.”
32
(3)(d) and (e) Parentage Act 2004 (ACT) . There must be two
birth parents: s.26(2)(b), (3)(b),(c),(d) and (e) Parentage Act
2004 (ACT).
Victoria No
Tasmania Each party to the surrogacy arrangement at the time it was
entered into was resident in Tasmania: s.16(2)(g) Surrogacy Act
2012 (Tas), though this might be able to be dispensed with:
s.16(3).
South Australia Surrogacy is not available to single intended parents: s.9(1)(iva)
Assisted Reproductive Treatment Act 1988 (SA),
s.10HA(2a)(a)(ii), (c), (d), (g)(ii), (h)(ii), (j),(5)(c)(i), (6)(c);
s.10HB(2)(b),(4), (8)(b), (9)(a),(b),(c), (10) Family Relationships
Act 1975 (SA). Registered persons, i.e., RTAC licensees (not
doctors) can decide not to treat on the basis of the person’s
sexual orientation, gender identity, marital status or religious
beliefs: s.9(1)(ba); 9(1a) ART Act, reg. 6 Assisted Reproductive
Treatment Regulations 2010 (SA). I am unsure if this scheme
complies with the Sex Discrimination Act.
Western Australia Surrogacy is not available to single men or gay male couples. It
is unclear if it is available to single intersex or transgender
people, or where one of the parties is intersex or transgender:
s.19 Surrogacy Act 2008 (WA); s.7(1)(b), 23(1)(iii) Human
Reproductive Technology Act 1991 (WA). This appears in breach
of s.22 of the Sex Discrimination Act. Another barrier in WA is
that anonymous sperm, egg or embryo donation is not available
in WA for surrogacy because of a requirement that the donor is a
signatory to the surrogacy arrangement: s.17(b)(iii) Surrogacy
Act 2008 (WA). WA is currently reviewing its ART and
surrogacy laws.
NT No discrimination in ART. Surrogacy not available. Doctors
must comply with SA licences.
33
HOUSE OF REPRESENTATIVES INQUIRY
In 2015/2016, a select committee of the House of Representatives was reviewing the laws on
surrogacy. It handed down its recommendations in 2016 just before the Federal election. No
action has been taken on its recommendations which included:
A national non-discriminatory scheme of surrogacy laws.
Those laws to regulate altruistic and ban commercial surrogacy.
To make it harder for those undertaking surrogacy overseas in any jurisdiction which had
requirements less stringent than Australia. I note that the only place which has
requirements as stringent as Australia is New Zealand. Therefore even Australians who
go to the US or Canada for surrogacy would find their journey considerably longer and
more expensive.
Questioning whether it might be a good idea for any child born through surrogacy to have
noted on their birth certificate the name of the donor (and the donor’s partner) and that of
the surrogate and the surrogate’s partner. This was sought by donor conceived adults –
but it would seem that inadequate consideration was given to toddlers and school aged
children when their parents provide the birth certificate for enrolment or indeed 15 year
olds who might have to provide their birth certificate on seeking employment.
Farnell and Chambua [2016] FCWA 1715
As I said above, this was the Baby Gammy case in which the Court ultimately found that the
child Pipah should continue to live in Bunbury (a town a couple of hours south of Perth) with
Mr and Mrs Farnell and not live with her brother Gammy in Thailand who is being cared for
by the surrogate, Mrs Chambua.
If you want to read a case about how not to do surrogacy, it is a good illustration.
15 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/FCWA/2016/17.html seen on 21 May 2018.
34
Bernieres and Dhopal [2017] FamCAFC 18016
Mr and Mrs Bernieres lived in Melbourne. They travelled to India for surrogacy. Mr
Bernieres was the genetic father. An egg donor was the genetic mother. The surrogacy went
well. The child was born, obtained Australian citizenship and returned home. Mr and Mrs
Bernieres then applied to the Family Court for an order that they have parental responsibility
for the child and that the child live with them. Each was easily obtained. They also sought
an order declaring them to be the parents.
The trial judge, Berman J in 2015 declined that order. He said that there was a gap in the law
of Victoria whereby the parenting presumptions about who was a parent did not apply to
overseas surrogacy. The surrogacy was, although legal, non-compliant with the law of
Victoria (which amongst other things required that IVF be undertaken in a Victorian clinic).
Therefore, he refused to declare that they were the parents.
Mr and Mrs Bernieres appealed. A unanimous three member Full Court found that they were
not the parents, in essence for the reasons that the trial judge had found.
The case has highlighted that under Australian law there are different standards about who is
a parent. The effect of Bernieres and Dhopal is to emphasise that different statutes have
different approaches about whether someone is or is not a parent. For example:
16 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/180.html seen on 21 May 2018.
35
Who’s a parent?Law Comment
Family Law Act 1975 For people who went from Victoria overseas for surrogacy to
contract based jurisdictions such as India, Cambodia, Thailand, it is
clear that they are not parents under this legislation. However, it is
not so clear if they are from another State or went to a jurisdiction
where orders are made transferring parentage (such as the US or
Canada). It is untested and uncertain.
Exceptions to
Bernieres and Dhopal
There are five potential exceptions to Bernieres and Dhopal:
1. That the intended parents lived overseas, complied with the
law overseas and were recognised overseas as the parents, in
which case they would be recognised in Australia as the
parents: Carlton & Bissett [2013] Fam CA 14317.
2. There was an adoption, as part of the surrogacy process, in
which case they will be recognised as a parent under the
Family Law Act: section 4. This may lead to an absurd
outcome in which parent 1 (the genetic parent) might not,
consistent with Bernieres and Dhopal be recognised as a
parent; but parent 2, by virtue of a second parent adoption,
will be a parent.
3. The intended parents come from South Australia and have
obtained the permission of the Health Minister under the
Family Relationships Act 1975 (SA).
4. They have obtained an order made in most parts of the United
States and had it registered under section 70G of the Family
Law Act with the Family Court of Australia.
17 A case involving a man who was a citizen of, lived in, underwent surrogacy in and obtained an order from a
court in South Africa- before he and the children migrated to Australia, so that he could be with the man he
loved, also a South African.
36
Who’s a parent?Law Comment
5. The overseas order is recognised under the 1996 Hague Child
Protection Convention, and the judge is prepared to register
despite public policy exceptions.
Inheritance If someone is not a parent for the purpose of family law, almost
certainly they won’t be a parent for the purposes of inheritance.
Therefore properly drawn wills need to be prepared to minimise
risk.
Child protection Depending on child protection statues, the intended parents may or
may not be recognised as parents.
1980 Hague Child
Abduction Convention
Absent a court order, a person who is not a parent under family law
does not have parental responsibility and therefore does not have
rights of custody under the Convention.
Child support Seemingly by way of insult, many people who would not be
considered to be parents as a result of Bernieres and Dhopal will
nevertheless be considered parents for the purposes of child
support. In other words, they can’t be recognised as parents in
their relationship with their child except if the relationship breaks
down!
Superannuation Someone may be a parent for the purposes of superannuation
(retirement savings account). The monies in these accounts can be
substantial, given Australia’s compulsory superannuation laws, so
proper planning is required.
Citizenship The practical test to determine if someone is a parent for the
purposes of citizenship is if they are seen as a parent in the wider
sense of the community (although the case dealing with this
excluded surrogacy, it has been applied to surrogacy by the
Department of Immigration, now the Department of Home
Affairs). The basis of determining if someone is a parent is defined
by genetics, OR whether someone is a parent under the Family Law
Act OR if they are seen in the wider sense of the community as
being a parent. Typically the last means that judgments obtained in
37
Who’s a parent?Law Comment
the US or Canada identifying people as parents will be sufficient to
identify them as parents for surrogacy. See my discussion about
the Australian couple who went to Russia, below.
REGISTRATION CASES
There have now been three cases where US surrogacy orders have been dealt with by the
Family Court.
Re Halvard [2016] FamCA 105118
As discussed above.
Re Grosvenor [2017] FamCA36619
The intended parents were an Australian couple living in the United States who underwent
surrogacy in North Carolina. Justice Forrest registered the judgment. I acted. His Honour
stated:
“Given that the applicants and their solicitor tell the Court that the child in this case
was brought into the world with the assistance of an arrangement regulated by a
commercial surrogacy agreement, I am clearly required to more deeply consider that
proposition [if it’s commercial surrogacy the discretion might be refused] expressed
by me only six months ago. The public policy context within which this consideration
is set includes the fact that in Queensland, New South Wales and the Australian
Capital Territory entry into commercial surrogacy arrangements abroad by persons
ordinarily resident in those jurisdictions is a criminal offence. Of course, I have
already observed that Mr and Mrs Grosvenor reside in the USA and not one of those
jurisdictions. Nevertheless, they have entered into a commercial surrogacy
18 http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2016/1051.html .
19 http://www.austlii.edu.au/au/cases/cth/FamCA/2017/366.html .
38
agreement and they seek the registration of the Court order that gives them the
parenting rights over their child in this Court.
Having considered the matter further, particularly having regard to:
the unique circumstance of this couple and the inability to biologically parent
and carry their own baby;
the well-regulated nature of the surrogacy arrangements entered into between
the applicants and the surrogate notwithstanding its commerciality;
the judicial oversight to the arrangements given by the Court in the USA,
including the procedural fairness offered thereby to the woman who carried
the baby for the applicants;
the acceptance by the Australian Government of the US jurisdiction as a
prescribed jurisdiction for the purposes of the registration of ‘overseas child
orders’ made in Courts of that jurisdiction, thereby, I am satisfied, signifying
the Australian Government’s satisfaction with the standard of the judicial
processes that would have occurred in the making of the order; and
the fact that the arrangements entered into, regardless of their nature, brought
into the world a child who is a biological child of at least one of the
applicants, the legal child of both of them, who is being loved and raised as
their child, who is an Australian citizen, like her parents, will be coming back
to live in Australia in the near future, and who has every right to expect that
the legal nature of her relationship with both of her parents is appropriately
recognised in this country of hers;
I am satisfied that the commercial nature of the surrogacy agreement alone in
this particular case should not determine the exercise of discretion against the
applicants.”
39
Sigley and Sigley [2018] FamCA 320
On 10 January 2018, Justice Forrest registered another US surrogacy order, this time being
for an Australian couple living in Los Angeles who had undertaken surrogacy in Texas.
Texas, as was Tennessee and North Carolina, was a prescribed overseas jurisdiction.
Following the approach that his Honour took in Re Grosvenor, he stated:
“This is another case where the parties and the solicitor inform the Court that the
surrogacy agreement entered into in the USA was a “commercial” one.
I am, as I considered I was in the earlier decision, clearly required to give
consideration in the public policy context within which my discretion is being
exercised. That context includes the fact that in Queensland, New South Wales and
the Australian Capital Territory entry into “commercial” surrogacy arrangements
abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of
course, I have already observed that Mr and Mrs Sigley reside in the USA and not
one of those jurisdictions. Whilst they currently intend to return to live in Australia at
some time in the future, it is not in one of the three jurisdictions just mentioned, but
rather the State of Victoria. Nevertheless they have entered into a commercial
surrogacy agreement and they seek the registration in this Australian Court of the
American Court Order that gives them the parenting rights over their child. If they
were “ordinarily resident” in Queensland, New South Wales or the ACT, they would
have, prima facie, committed a criminal offence. However, as the applicants’
solicitor points out in his submissions, Victoria allows intended parents to enter into
commercial surrogacy arrangements overseas and has not sought to criminalise such
behaviour. Entry by the applicants into the “commercial” surrogacy agreement was
lawful in the USA, particularly in the State of Texas where it was done and the
Australian Government has not determined to criminalise entry by Australian citizens
or residents into commercial surrogacy agreements overseas as, arguably, it could
do.
20 http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA//2018/3.html .
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Having given the matter my consideration, I am satisfied for all the reasons as I said
in my earlier decision…that the commercial nature of the surrogacy agreement alone
in this particular case should not determine the exercise of discretion against the
applicant. Different from that case though, in this case there are two children who
are brought into life through the surrogacy arrangements and both of those children
are the biological children of both of the applicants. Their gestational “mother” was
their carrier who assisted their biological parents bring them into the world. The two
children are both Australian citizens now as well, with legitimate expectations that
the legal nature of their parent-child relationship with both of their loving parents is
appropriately recognised in this country of theirs.”
The reference to legitimate expectations was a reference in my submissions that the High
Court of Australia had said in Teoh’s case (1995)21 that although Australia was a party to the
International Convention on the Rights of the Child, the Convention was not part of
Australia’s domestic law. Any child or the parents of the child had a legitimate expectation,
subject to any statute or regulation, that an officer of the Australian government would ensure
that Australia would comply with its international obligations. Article 8 of the Convention
refers to a child having a right to an identity. Jurisprudence from Europe in dealing with this
Article, and similar provisions in the European Convention on Human Rights identify that the
child’s family is that of the child and the intended parents.
His Honour then went on to say that the applicants were the de jure i.e. lawful, and biological
parents of the children and “I have not been able to identify any reason why they should not
be entitled to the registration of that Texas Court’s Order in this Court so their parent-child
relationship with [the children] is recognised appropriately in this country as they desire and
for the children’s sake.”
21 Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1995/20.html .
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Lamb & Shaw [2017] FamCA 76922
This is a case from North Queensland where surrogacy went wrong. There was in essence a
fallout between the surrogate and the intended parents. The intended mother and the
surrogate are third cousins.
After the child was born, there was a Mexican standoff at the hospital, at which time the
surrogate proposed to adopt out the child. The intended parents, worried that the surrogate
would adopt out the child, brought an urgent application in the Family Court for the child to
live with them. The parties were required to take part in mediation. By interim agreement,
the child went into the care of the intended parents. Regrettably there wasn’t an agreement as
to ultimately what was to happen so the matter proceeded to trial. At trial, Justice Tree
determined that there should not be time between the child and the surrogate.
Curiously, Justice Tree also found that under the particular wording of the relevant section of
the Status of Children Act 1978 (Qld) that the intended father (who was genetically the
father) was a parent of the child, albeit one with no rights or responsibilities.
[On my office checking the statute law following that decision, we discovered that no other
Australian State has an equivalent provision. The Northern Territory has an equivalent
provision only – but surrogacy does not occur there as far as I am aware.]
Regrettably, that wasn’t the end of the matter. The surrogate then appealed on the point as to
whether the intended father was a parent. Recently when the matter reached the appeal court,
that court determined that there had been an error at trial because there was no clear evidence
as to whether or not the surrogate was single at the time of implantation. There was some
suggestion at implantation that the surrogate and her boyfriend might have been in a de facto
relationship.
Accordingly, the matter was remitted back to the trial level, preferably to be heard before
Justice Tree again to determine that issue. We will see how that matter turns out.
22 www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/769.html seen on 21 May 2018.
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Since the initial decision in Lamb and Shaw, my firm has had three parentage order
applications before the Childrens Court of Queensland where there has been a single
surrogate. What approach should be followed? Is it one where the intended father is not a
parent, as has consistently been the view in Queensland and by virtue of similar case law in
New South Wales or is it one consistent with Lamb and Shaw that the intended father to a
single surrogate is a parent, albeit one with no rights and responsibilities?
In all three cases only the surrogate’s name was shown on the birth certificate. In those three
cases the Childrens Court judges have considered that either Lamb and Shaw is not relevant
to the exercise of the discretion or have distinguished as not being applicable to those cases.
It remains an uncertain area of law and I await with interest what happens with any further
developments in that case.
GETTING THE TECHNICAL ISSUES RIGHT
I can’t emphasise enough how important it is to get the technical issues absolutely right and
to ensure that any lawyers who are handling the matter are really expert in their field.
Last year my firm had a surrogacy matter which we had taken over. The parties to the
surrogacy arrangement were the intended parents and her mother the surrogate. The three of
them took part in counselling. The surrogate and the intended parents separately obtained
independent legal advice. A surrogacy arrangement was signed up. The counselling
recommended the counselling arrangement. The counsellor noted that the surrogate remained
married to the intended mother’s father, but they had separated many years before. This issue
was addressed in the report before the surrogacy arrangement was signed, but nevertheless
the surrogacy arrangement proceeded.
The surrogacy arrangement was presented to the ethics committee of a large IVF clinic,
which approved treatment. Treatment occurred. All went well. A child was conceived, born
and handed over.
In the meantime, the long estranged husband of the surrogate was dying. As a result the three
parties moved from New South Wales to Queensland to care for him. He died before the
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child was born. By moving to Queensland, the intended parents needed to make application
under the Queensland Surrogacy Act, not the NSW one. This was despite the fact that the
surrogacy arrangement was drafted under the NSW Act.
My firm was the asked to take over the matter. To my horror I saw that the surrogate’s
husband was not a party to the surrogacy arrangement. He had not received counselling nor
legal advice.
Solicitors in NSW had independently advised both the intended parents and the surrogate
before the surrogacy arrangement was signed. It somehow escaped both of their attention that
the surrogate’s husband may have been a parent under the Status of Children Act 1996
(NSW) and the Surrogacy Act 2010 (NSW).
There was no doubt once we had a careful look at the Surrogacy Act 2010 (NSW) that there
had been non-compliance with that Act so far as the surrogate’s husband was concerned. He
should have been a party. He should have had legal advice. He should have had counselling.
He was well aware of the surrogacy arrangement and in fact had written an email to my client
saying that he would pay for the IVF for it.
I was thankful that he had written that email because it got us over the line, as our clients
were able to persuade the court to dispense with various requirements under the Surrogacy
Act 2010 (Qld). It was a tricky business - that could easily have ended up with no parentage
order being made and the child’s legal parentage therefore left in limbo. All caused by poor
legal advice for both sides.
A plea
Please oh please oh please call those who want to have the children the intended parents.
Quite simply they are the people who intend to be the parents and parent the child. The
phrase is used in some States, for example New South Wales and Queensland. It is also the
international phrase. Other phrases that are used for the purposes of legislation have to be
used for legislation but otherwise they stink. To call someone a substitute parent, such as in
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the ACT is to say in effect they are not real, they are a substitute. They’re fake. To call
someone a commissioning parent sounds like they have commissioned a ship or a boat as
though they had bought a child. I have had clients, rightfully, complain to me that they have
been called substitute or commissioning. I have not had any clients complain to me that they
were called intended and then ultimately the parents.
Non-disclosure
I have become aware of a recent case where the intended parents, not satisfied with the report
from the counsellor, then went counsellor shopping, in order to obtain a favourable report so
that they could then undertake surrogacy. Ultimately they sought three counsellors. They did
not disclose to any of the counsellors that they had seen previous counsellors for the purposes
of a report for surrogacy. Please urge any of your counsellors that you work with to be alert
to this issue. I suggest that in your checklist for any ethics committee for your IVF clinic that
you ask for a copy of all counsellors’ reports obtained and ask the clients whether there are
any other reports, or whether they have been to any other counsellors for the purposes of the
surrogacy journey.
Some egg donor issues
It is common for Australians to go overseas for egg donation. Under Commonwealth
legislation and in every State other than WA (where it is 10 years) the penalty for paying an
egg donor under human cloning legislation above reasonable expenses is a penalty of up to
15 years imprisonment.
There is State legislation in every State plus the ACT. In the Northern Territory reliance is
solely on the Commonwealth legislation. There are long arm laws in Queensland, New South
Wales, ACT, South Australia and Western Australia. The Northern Territory has long arm
laws so far as under its Criminal Code which are relevant to the provisions of the
Transplantation and Anatomy Act.
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Someone who goes overseas for a commercial egg donor agreement may be in breach of the
relevant State or Territory human cloning legislation, State or Territory Transplantation and
Anatomy Act/Human Tissue Act, in light of the relevant long arm law.
A health professional, such as a doctor or nurse who facilitates the arrangement may be
committing an offence as a principal. For example in Queensland if you conspire with, aid
and abet or counsel or procure someone to commit the offence, then you are also a principal
offender, which means you too could be liable to a 15 year term of imprisonment.
Quite simply, if you have a patient who says that they are looking at undertaking egg
donation overseas, make sure they get good quality legal advice. If you tell them that it is
illegal for them to do that, that’s not accurate. It is proper for you to tell them that it may be
illegal. It would be wise to write a file note and it would be wise to refer them for legal
advice.
Carefully handled, they shouldn’t be committing a criminal offence. In the last few days I
spoke to new clients who told me that they have got overseas legal advice, entered into a
surrogacy arrangement which appears to be a criminal one in the law of their State and
entered into a commercial egg donor agreement, putting them at risk of committing an
offence under the Human Tissue Act/Transplantation and Anatomy Act in their State with a
penalty of up to 6 months imprisonment, but worse, putting them at risk of committing an
offence under the human cloning legislation with a possible penalty of up to 15 years
imprisonment in their State. Of the couple, the husband was in shock. I thought he was
going to decompensate in front of me. All because they had not received any legal advice
from an expert in the field before they started their journey.
If they had received that advice:
I am sure that they could have become parents but:
They wouldn’t have committed any offence.
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Feedback from clients
I believe that Australian IVF clinics are amongst the best in the world. We have pioneered
IVF. We have the lowest twinning rates in the world. ANZARD and RTAC are wonderful
means of ensuring high quality.
Thankfully not as often as I once heard, but still too often, I hear these things from my
clients:
1. We underwent endless rounds of IVF. Our doctor did not raise with us the possibility
of undertaking surrogacy. If only we had known that surrogacy was available, we
would have stopped the rollercoaster of IVF and undertaken surrogacy sooner.
2. The forms and procedures of the IVF clinic seem to be designed for heterosexual
couples and not for me (a single woman)/us (a gay couple).
3. It seems to be assumed that a gay couple can have children. If one can’t produce
sperm then the other can. We have had to rely upon a donor.
4. It seems to be assumed that a lesbian couple will never need surrogacy – but we did.
5. The US/Canadian clinic seems to be very focused on our needs and creating a baby.
By contrast the doctor/clinic in Australia seemed to be much more fixated on
procedures and not on the human touch. It was altogether a colder experience doing
this process in Australia than it was going overseas. We would never go to an IVF
clinic in Australia again.
I would just encourage you to be:
warm and welcoming to all patients;
focus on the human side and their journey;
be aware of the substance and spirit of antidiscrimination legislation.
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Yesterday I was sad to read research about transgender parents in Australia.23 This is
research in which 16 and 26 transmen who had experienced a gestational pregnancy
consented to being interviewed. The study is part of a larger project titled “The constructions
and experiences of parenthood amongst transgender Australians”. There were both open
and closed questions asked of the respondents related to four areas: demographic data, such
as age, education, and sexual orientation; participants’ experiences of their gender identity,
such as the term or terms they used to describe their gender identity, and steps they may have
taken towards transitioning; parenting information, such as number and age of children, care
arrangements and relationship with co-parents; and support systems.
As the researchers’ state:
“The participants in our study chose to pursue pregnancy for a variety of reasons.
Some participants had cisgender female partners whose fertility was affected by
medical issues, as Sam (32) describes:
(My partner’s) endometriosis was really severe…when we started talking
about a family I just knew it wasn’t going to be possible for her (to get
pregnant) so I decided that I’d do it. It wasn’t an altogether happy decision
but I knew it was the right one for us and I feel, actually, very grateful that I
could do that for us.
For other participants, being able to have a child that was biologically related to
them was positioned as important and valuable: “It just seemed like a huge privilege
to be able to have a child that shared my DNA”.
The authors’ state:
“It has been well established that transmen face significant difficulties when access
care and support for the reproductive health and wellbeing, and assisted fertility is no
23 Rosie Charter, Jane M. Usher, Janette Perz & Kerry Robinson (2018): The transgender parent: Experiences
and constructions of pregnancy and parenthood for transgender men in Australia, International Journal of
Transgenderism, DOI: 10.1080/15532739.2017.1399496, viewable at
https://doi.org/10.1080/15532739.2017.1399496.
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exception…as 18 of the 25 participants in this study were partnered with cisgender
women at the time of conceiving children, they would not be able to conceive their
children without accessing some form of external support, such as pursuing formal or
informal assisted fertility, including the acquisition and insemination of donor sperm,
and, in some cases, in vitro fertilisation.
For many participants, accessing sperm was the first step toward conceiving their
child…[there is then a recounting of those who obtained sperm donation at home].
However, experiences of assisted fertility were very different for those participants
who chose to use formal fertility services. Many described it as a “nightmare
process” that none were able to see through to completion.
We were rejected from multiple clinics due to “reasons unknown”. “We had a range
of appointments and each time the discussion centred almost completely on my genital
identity…everyone just seemed so uncomfortable seeing us.” (Justin, 30)
Other participants echoed this account, describing “embarrassing” and “awkward”
appointments followed by “cancelling our follow-ups”. Trent (36) stated:
“The doctor we saw was so awkward with us, kept misgendering me and repeatedly
asked why my (cisgender) partner wasn’t the one to have the baby.” For these
participants dealing with negative experiences with fertility service providers was
“the first in many pregnancy-related rejects and disappointments”. (Noel, 36).
Whilst transpeople are protected legally in Australia by HCPs (New South Wales
Government, 1977) these protections are not necessarily borne out in their actual
experiences. No participant in this study who attempted to access a fertility clinic
was actually granted treatment. This type of rejection and discrimination is reported
to be pervasive in the trans community and has a very significant impact on mental
health and wellbeing…as such, like many in the broader LGBTQI community,
transmen turn to informal networks and methods, indicated in the above accounts of
using known donors and at-home insemination, to assist them in achieving their goal
to conceive.”
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Stephen Page
23 April 2018