Linda miller

Surrogacy Laws in Queensland The Need for

ReformAugust 2015

Linda Miller

Introduction

Commercial surrogacy is illegal throughout Australia and is subject to criminal prosecution. In spite of this, the number of commercial surrogacy's, predominantly performed overseas, have increased disproportionately to that of legal altruistic surrogacy's. In 2011-12 more than 300 babies were produced by overseas commercial surrogacy arrangements as opposed to 23 babies born through altruistic surrogacy in Australia.1 Current laws are ineffective and the situation will only worsen with research predicting infertility to become the third most widespread health condition this century.2 Commercial surrogacy should therefore, be lawful in Queensland. I will argue that current laws involving both altruistic and commercial surrogacy are out of date and should be reformed to better reflect the current situation.

Current Status

Surrogacy has been simply defined as 'an understanding or agreement by which a woman-the surrogate mother-agrees to bear a child for another person or couple.'3 The first act in Queensland to address this issue was the Surrogate Parenthood Act 1988. This Act banned all forms of surrogacy to residents regardless of where they took place (Queensland, interstate or overseas). The Surrogacy Act 2010 (SA) legalized altruistic surrogacy. All forms of commercial surrogacy are prohibited.

The Act lists a number of requirements that must be met prior to an altruistic arrangement. Intended parents and surrogates must be at least 25 years old and have a medical or social need.4 Before conception, the parties must obtain counselling;5 independent legal advice;6 and a surrogacy guidance report approving the arrangement.7 Affidavits must be made by all parties previously mentioned, swearing that all steps have been fulfilled and that they understand the arrangement.8 The Act outlines when and how to obtain a parentage order to transfer parentage from the birth mother to the intended parents.9

1 Thousands of Infertile Australians Paying for Surrogacy in India and Thailand (April 03, 2014) News.com.au < http://www.news.com.au/lifestyle/parenting/thousands-of-infertile-australians-paying-for-surrogacy-in-india-and-thailand/story-fnet08xa-1226872653386>.2 Figures based on research presented at the 5th Congress of the Asia Pacific Initiative on Reproduction Conference. Thousands of Infertile Australians Paying for Surrogacy in India and Thailand (April 03, 2014) News.com.au < http://www.news.com.au/lifestyle/parenting/thousands-of-infertile-australians-paying-for-surrogacy-in-india-and-thailand/story-fnet08xa-1226872653386>.3 Derek Morgan, Surrogacy: An Introductory Essay' in Robert Lee and Derek Morgan (eds), Birthrights: Law and Ethics and the Beginnings of Life (Routledge, 1989) 55, 56.4 Surrogacy Act 2010 (Qld) ss 14, 22(2)(f)-(g).5 Surrogacy Act 2010 (Qld) s 22(2)(e)(ii).6 Surrogacy Act 2010 (Qld) s 22(2)(e)(i).7 Surrogacy Act 2010 (Qld) ss 22(2)(i), 32.8 Surrogacy Act 2010 (Qld) ss 26-31.9 Surrogacy Act 2010 (Qld) ss 20-25.

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Problems

Surrogacy is a relatively new area of law. Current legislation does not reflect situations presently encountered. There is no Commonwealth legislation specifically regarding surrogacy. The Family Law Act 1975 (Cth)(FLA) addresses artificial conception, however not in the context of surrogacy.10 The prescribed laws of a State/Territory prevail in matters of surrogacy arrangements over Commonwealth legislation.11 This becomes problematic in issues of parentage.

The SA declares that parentage presumptions under the Status of Children Act 1978 (Qld) apply.12 The presumption states the birth mother is the legal mother of any child (husband/de facto partner: presumed father) regardless of genetic heritage.13 This is irrebuttable.14 The FLA's intention may have been to give providers of genetic material in surrogacy arrangements the status of parents, however in Queensland, it does not have this effect.15

Surrogacy arrangements are not enforceable.16 Unlike other contracts, the intended birth parent(s) will have no legal recourse to demand performance of this agreement. If a surrogate changes her mind, the intended parents have no legal claim to the child and cannot obtain a parentage order.

Advertising for a altruistic surrogate is illegal.17 This has resulted in Australians becoming the largest clients of international commercial surrogacy in spite of a extra-territorial surrogacy ban.18 Problems occur when parents try to return to Australia with the child(ren). Jurisdictional issues arise given that international birth certificates or foreign parentage declarations are not legally binding.19 Families can be denied entry and stranded overseas until a foreign passport can be obtained.

The Department of Immigration and Citizenship issued instructions on three separate occasions confirming exclusive domestic application, despite any actual wording to this effect within the FLA.20 Therefore, intended parents are not legal parents until they apply for a parentage order under Queensland statue. However, this cannot be facilitated until they return to Australia. 10 Family Law Act 1975 (Cth) s 4(1).11 Family Law Act 1975 (Cth) s 60HB.12 Surrogacy Act 2010 (Qld) s 17.13 Status of the Children Act 1978 (Qld) s 19E.14 Status of the Children Act 1978 (Qld) s 23; Surrogacy Act 2010 (Qld) s 17.15 Re Michael: Surrogacy Arrangements [2009] FamCA 691 [34] (Watts J).16 Surrogacy Act 2010 (Qld) s 15.17 Surrogacy Act 2010 (Qld) s 55.18 Surrogacy Act 2010 (Qld) s 54; Regulating Surrogacy in Australia (17 April 2015 ) Human Rights Law Centre < http://hrlc.org.au/regulating-surrogacy-in-australia/>. 19 Report on Parentage and the Family Law Act (2014) Family Law Council < https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/family-law-council-report-on-parentage-and-the-family-law-act-december2013.pdf>.

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Citizenship by decent is an option for a biological parent,21 however it is not available when there is no genetic relationship.

As a result of no applicable legal regime, only parental responsibility can be awarded,22 not legal parentage. Non-recognition of legal parentage negatively impacts decisions made on the child(ren)s behalf. These include: enrolment in school; registering with Medicare/health funds; medical decisions; rights to intestacy, superannuation and worker's compensation upon a parents death; and recognition of child support entitlements.23 Parenting orders cease once a child(ren) has turned 18 years old.24 There have been cases where domestic intended parents have not sought legal parentage when they have not met the requirements outlined in the SA.25

The courts paramount consideration is the best interest of the child(ren). Courts are being forced into determining cases where child(ren) are legally parentless and, in international cases, legally stateless. By the time these cases are being presented, the child(ren) have been in the applicants care for a extended period of time. Removal would be traumatic and the 'potential for long-term psychological and emotional harm' is great.26 The best interests of the child(ren) outweighs criminality and public policy considerations.27 Thus leaving the courts little choice but to award some type of legal relationship to the applicants regardless of the fact that they have broken the law.

Reforms

Reforms are needed at both the Commonwealth and State/Territory levels. The Chief Justices of both the Family Court and Federal Circuit Court have called for the ban on commercial surrogacy to be lifted. They recommend a crackdown on commercial overseas surrogacy, enforcing criminal sanctions and tightening visa rules preventing child(ren) from entering Australia.28

20Australian Citizenship Act 2007 (Cth) s 8; Family Law Act 1975 (Cth) ss 60H, 60HB; Jenni Millbank, 'The New Surrogacy Parentage Laws in Australia: Cautious Regulation or "25 Brick Walls"' (2011) 35 Melbourne University Law Review 165, 201 <https://www.law.unimelb.edu.au/files/dmfile/35_1_5.pdf>.21 Australian Citizenship Act 2007 (Cth) s 16. 22 Family Law Act 1975 (Cth) s 65C; Re Mark: An application relating to Parental Responsibilities (2003) FLC 93-173.23 Dudley & Anor v Chedi [2011] FamCA 502 [22] (Watts J).24 Family Law Act 1975 (Cth) s 61C. 25 Dudley & Anor v Chedi [2011] FamCA 502; Dennis v Pradchaphet [2011] FamCA 123.26 Ellison & Anor v Karnchanit [2012] FamCA 602 [3] (Ryan J). 27 Ellison & Anor v Karnchanit [2012] FamCA 602; Re X v Y (Foreign Surrogacy) [2009] 1 FLR 733; Re D v E (2000) 26 Fam LR 310.28Nicola Berkovic, 'Judicial Chiefs Call for Lifting Domestic Ban on Commercial Surrogacy', The Australian (online), 21 August,2014 <http://www.theaustralian.com.au/business/legal-affairs/judicial-chiefs-call-for-lifting-of-domestic-

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Legalizing commercial surrogacy in Queensland would reduce the need for parents to travel abroad for surrogacy and solve the problems that occur as a result of international arrangements. The SA should be extensively amended and the ban on extra-territorial surrogacy repealed. Any overseas arrangements should be strictly limited and regulated, requiring prior approval of the courts and co-operation with the originating country.

To avoid issues between the birth mother and intended parents, surrogacy agreements should be legally binding.29 Surrogacy agreements should be treated like any other contract. Although this may seem harsh, if women truly seek gender equality, then maternal attachment should not be used as grounds to void a legal contract. The current status reinforces the patriarchal approach that women are emotional and ill-equipped to handle ramifications of complex business decisions.

Authorization by the courts for the transfer of the child(ren) should be in advance of the child(ren)'s birth. The presumption should be in favour of the intended parents. Safeguards would be required to ensure that sperm/egg donors could not claim parentage. An appeals process should be implemented to hear claims against awarding intended parents legal parentage. However, the claimant should bear the onus of proof.

The SA and the United Kingdom have similar requirements for altruistic surrogacy. The SA should be expanded to include the UK's use of non-profits to assist in the surrogacy process. These agencies pre-screen, educate and match surrogates with intended parents.30 Peer-support workers are assigned and provide support and counselling throughout the entire process.31 Although commercial surrogacy is illegal, courts do have discretion to allow for payments in excess of reasonable expenses.32 This ongoing support would reduce the likelihood of broken surrogacy agreements.

Currently the courts are declaring parenting orders that turn a blind eye to, and sanction, criminal offences. Although some applicants have been referred for prosecution, this is rare and applicants are still awarded parental responsibility.33 Diana Bryant CJ urged an enforcement or repeal of the current criminal law.34

ban-on-commercial-surrogacy/story-e6frg97x-1227031288720>.29 Surrogacy Australia Submission, 7-8; Stephen Page Submission 28; Report on Parentage and the Family Law Act (2014) Family Law Council < https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/family-law-council-report-on-parentage-and-the-family-law-act-december2013.pdf>.30 United Kingdom Border Agency, Inter-country Surrogacy and the Immigration Rules, Home Office <www.ukba.homeoffice.gov.uk/sitecontent/documents/residency/Intercountry-surrogacy-leaflet>; Childlessness Overcome Through Surrogacy (COTS) < http://www.surrogacy.org.uk/FAQ1.htm>.31 Surrogacy UK < http://www.surrogacyuk.org/intended_parents>.32 Human Fertilisation and Embryology Act 2008 (UK) s 54(8).33 Dudley & Anor v Chedi [2011] FamCA 502.

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I believe that this criminal behaviour should be considered when awarding parentage. The best interest of the child is the paramount consideration. However, it should not be the sole consideration. 35 All of the arrangement circumstances, including the behaviour of all parties, should be relevant as to the suitability of parentage. Due to the current lack of legislation it is easier to arrange a surrogacy then it is to adopt a child. Police and welfare checks, similar to that required for adoption, should be required prior to entering into a surrogacy agreement.36 This, with the additional counselling requirements, could avoid issues of exploitation of the birth mother and provide proof of fitness of the intended parents.

Conclusion

People desperate to have children will continue to enter into surrogacy agreements regardless of the legal status. If other options are not available, they will continue to violate the law to achieve this. Legalizing commercial surrogacy in Queensland would allow for stricter reinforcement of regulations to ensure the best interests of the child(ren)are met. It would reduce the need for international surrogacy and the problems of citizenship and legal parentage that result from it. Once reforms are enacted, if the law is violated, people should be prosecuted to the fullest extent. There should be broader discretion given to the courts to evaluate issues of non-compliance. Reforms would provide a more flexible approach to parental responsibility and legal parentage37 than the current legislation. This would better serve the needs of all parties involved in a surrogacy arrangement.

34 Nicola Berkovic, 'Judicial Chiefs Call for Lifting Domestic Ban on Commercial Surrogacy', The Australian (online), 21 August,2014 <http://www.theaustralian.com.au/business/legal-affairs/judicial-chiefs-call-for-lifting-of-domestic-ban-on-commercial-surrogacy/story-e6frg97x-1227031288720>.35 AMS v AIF [1999] HCA 26.36 Nicola Berkovic, 'Judicial Chiefs Call for Lifting Domestic Ban on Commercial Surrogacy', The Australian (online), 21 August,2014 <http://www.theaustralian.com.au/business/legal-affairs/judicial-chiefs-call-for-lifting-of-domestic-ban-on-commercial-surrogacy/story-e6frg97x-1227031288720>.37 Jenni Millbank, 'The New Surrogacy Parentage Laws in Australia: Cautious Regulation or "25 Brick Walls"' (2011) 35 Melbourne University Law Review 165, 201 <https://www.law.unimelb.edu.au/files/dmfile/35_1_5.pdf>.

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