Tuesday, 20 May 2014

Presentation to Qld Rainbow Labor




Last week I was asked to present to Qld Rainbow Labor, the LGBTI group in Queensland of the ALP,  about surrogacy and adoption, as well as other family law issues, and discrimination against LGBTI people.


Rainbow Labor asked me to speak as an expert in the area. I am not a member of the ALP, nor of any other political party.


The presentation went well. The challenges I identified, aside from the obvious challenges that exist with too few children and too much red tape with adoption, and the minefields that intended parents must endure to access surrogacy were:


  • The Marriage Act does not allow same sex marriage. All other Commonwealth discrimination was removed, at first by the Howard government, and then extensively by the Rudd government.
  • In Queensland there is a differential age of consent. In the news recently were two Labor icons- Neville Wran, who died, and Wayne Swan, who was being operated on for a brain tumour. When Neville Wran decriminalised homosexuality, he did so in the 70's, making the age of consent for anal sex in NSW at 18 years. Wayne Swan copied him in Queensland in 1990, a generation ago. Queensland remains the only State where there is this differential age of consent. For all acts other than anal sex, the age of consent is 16 years, but for anal sex it is 18 years. It is about time that they were the same.
  • When Peter Beattie removed discrimination under Queensland laws against gay and lesbians in 1993, there remained two exceptions- neither of which appears to have any rhyme nor reason: gay and lesbian teachers can still be discriminated against in Church schools; and gay and lesbian people (and singles) cannot adopt in Queensland (discrimination that was continued by the Adoption Act enacted by Anna Bligh in 2009).
  • The Queensland Government has announced a review of the Births, Deaths and Marriages Registration Act- which appears to be a removal of the requirement that trans people have to be single to have their birth register changed- a long overdue reform.

Wednesday, 7 May 2014

Qld Rainbow Labor event on Saturday

On Saturday I will be joining Senator Louise Pratt from WA in addressing the meeting of Qld Rainbow Labor. I will be talking about relationship, parenting, surrogacy and adoption issues.

Apparently members wanted to talk about these issues, and were kind enough to ask me to speak to them about those issues.

While Queensland does not discriminate about who can be parents through surrogacy, there remain legal barriers impacting LGBT people, including:

  • the inability to marry
  • the inability to have public ceremonies for civil partnerships
  • the inability to adopt
  • alone of all the States, the age of consent for anal intercourse remains 18, not 16
  • the impact on trans people in being able to change their birth record
  • the position of teachers in Christian schools
It is often assumed that any hard won fights to ensure equality are written in stone. That assumption is false. There ought to be eternal vigilance to ensure that once equality is achieved, it is not subsequently removed.  The clear example of that was in 2012 when the Attorney-General Jarrod Bleijie proposed to ban those who wanted to undertake surrogacy- if the intended parents were a gay couple, a lesbian couple or a single man or woman- and make it a criminal offence punishable by up to 3 years jail; and to remove the recognition of lesbian mums on birth certificates.

Thankfully those proposals were put on the backburner last year, in part due to the lobbying of Queenslanders for Equality, of which I was the convenor.

While it might be thought that Queensland is backward-  when it comes to surrogacy, for example, only Victoria, NSW and Queensland do not discriminate. The other States and the ACT discriminate. The NT does not as it has no laws concerning surrogacy.

The surrogacy discrimination list:

  • ACT: both the intending parents and the surrogate and her partner must be couples. No singles need apply.
  • Tasmania: unless a judge rules otherwise in the best interests of the child, the intended parent(s) and the surrogate (and her partner, if any) must come from the Apple Isle.
  • South Australia: only heterosexual couples need apply. Gay and lesbian couples and singles miss out.
  • Western Australia: only heterosexual and lesbian couples and single women  need apply. Gay couples and single men miss out.

Supreme Court of Qld library event co-hosted with the GLBN

Tomorrow week, Thursday 15 May, the Supreme Court of Queensland library, the prime resource for lawyers in Queensland, will be co-hosting an event with the Brisbane Gay and Lesbian Business Network, called Library by Night.

The event, at the Supreme Court of Queensland library, is part of the celebrations of Law Week. It will include a presentation by law library staff about the library, and is aimed not just for practising lawyers like myself. There will also be a tour of the Sir Harry Gibbs Legal Heritage Centre.

Time: 5pm for 5.30pm, concluding 7pm
Place: Queen Elizabeth II Courts of Law, George St, Brisbane
Cost: $10

ALL WELCOME

I will be attending. :)

NHMRC review

The National Health and Medical Research Council is undertaking preliminary research about its  Ethical Guidelines, which are the basic licensing requirements of the nation's IVF clinics. The Guidelines impact greatly on egg donation and surrogacy. I apologise for the layout, largely caused by a template that the NHMRC required to be used. Here are my submissions:
30 April 2014
Project Officer – ART guidelines
Health & Research Ethics
Research Translation Group
National Health and Medical Research Council
By email:        ethics@nhmrc.gov.au
Dear Sir/Madam
I am a solicitor in private practice who undertakes surrogacy work in all States and Territories and have had clients from fifteen countries overseas.  I have undertaken surrogacy work on a domestic basis in Queensland, New South Wales and Victoria.  I am familiar with the formal requirements of surrogacy/ART law in all states and territories.
In 2012 I obtained a world first precedent defining “conception”, a decision of the Queensland Children’s Court [which defined conception as being the act of pregnancy, not fertilisation].  In addition to my membership of the Fertility Society of Australia, I am one of three Australian members of the International Surrogacy Forum, I chair the Surrogacy Australia Legal Committee, and I am one of 2 international representatives of the American Bar Association’s Assisted Reproductive Technology Committee.
The opinions set out in my submissions are mine and mine alone and not of those of any organisation of which I am a member or in which I hold office.
I am able to provide further assistance to the committee as requested.  My submissions are set out and the answers to the template are attached. 
Please find attached:
1.      The template answers
2.      My curriculum vitae
3.      My submissions to the Family Law Council dated 3 June 2013 and 28 June 2013
4.      A copy of the ASRM ruling
5.      A copy of a media report concerning Megan Jane Hooper.
Yours faithfully                                                         
Stephen Page                                                            
Harrington Family Lawyers                         
    

Section 6.5
Q20. In view of developments in other countries allowing women to receive compensation above medical and travelling expenses for donating eggs, should it be permissible for Australian women to also be compensated for the reproductive effort and risks associated with donating their eggs?  (See also Section 13 Surrogacy)
It is without question that Australian women ought to be compensated for the reproductive effort and risks associated with donating their eggs.
It is currently an offence under both Commonwealth and State legislation allows for state legislation to stand and compliment the Commonwealth legislation.  The effect of this, due to various state criminal laws means that in some jurisdictions that potential criminality of those offences extends to undertaking egg donor contracts overseas.
I have had clients or spoken to intended parents who have undertaken egg donor contracts in Argentina, south Africa, Spain, Greece, Ukraine, and the usual three places that Australians have tended to go overseas for surrogacy: India, Thailand and the United States.
In 2007 in its ethical ruling, the American Society for Reproductive Medicine rec9ognised that with the amount of pain, suffering and time taken by egg donors they should be compensated accordingly.  The council would be well aware of that ruling.  Currently egg donors in the United States are typically paid between US$5,000 and US$10,000.  The committee would be well aware of the Hefa ruling so far as egg donors in the United Kingdom are concerned.
There is no certainty as to what are “reasonable costs incurred” and regulations under both Commonwealth and State Legislation are sorely needed to clarify this.
The delays in obtaining eggs from an egg donor are acute.  In the past, with the rise of Australian websites clients have reported to me that they can make contact with a donor in about 6 – 8 weeks.  This has not been consistent.  Clients of mine have approached 40 potential egg donors and been rejected by all, except an egg donor in Western Australia who wanted to be paid $5000 so that she could undertake surrogacy overseas.  My clients declined that offer which would on the face of it appear to be a criminal act under Commonwealth Law and in that of the two jurisdictions concerned.
It seems extraordinary that Australians are having to travel to other parts of the world principally because donors in Australia are not available as I described above, Australians have been to numerous countries overseas.  In my view if egg donation were to occur in Australia subject to the rigid requirements of the guidelines, and any relevant legislation, then the interests of the donors in any children would be able to be adequately protected.
In my view the paper by the Ethics Committee of the American Society for Reproductive Medicine “financial compensation of oocyte donors” (2007) is compelling.  I have attached a copy of the paper for the assistance of the committee for those who are not familiar with it.
Q21. Should more guidance be given about the reimbursement of legitimate expenses? What guidance would you recommend?
See my answer to question 20.  If there is to be some listing of legitimate expenses then it should be done in an inclusive manner (so as to avoid the law of unintended consequences) similar to that in legislation concerning a birth mother’s surrogacy costs.  A good example of drafting of those costs, which sets out clear guidelines but at the same time allows flexibility to take into account the individual circumstances of each case, is section 11 of the Surrogacy Act 2010 (Qld) which provides:
“11 Meaning of birth mother's surrogacy costs
(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.
(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 of a reasonable medical cost for paragraph (a)—
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 into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including—
(i) the cost of counselling obtained by the birth mother or the birth mother's spouse (if any) before or after entering into the surrogacy arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;
(e) a reasonable legal cost for the birth mother and the birth mother's spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;
(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 the pregnancy when the birth mother was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.
Examples of other reasonable costs for paragraph (g)—
travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
travel and accommodation costs associated with a birth mother's attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court
(3) 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.”
Section 6.7 (see also Section 7.5)
Q25. Do you consider 18 years of age too late to have access to this information?
    • Should earlier access to the information be possible?
The age of 18 is considered to be the age of majority in Australia.  Courts have nevertheless recognised the Gillick Competence Test.  A possibility might be to have an earlier age subject to their being reports from say two doctors that the person concerned has Gillick competence.  That does, however, seem a complex manner of doing things and a more straight forward way may be to retain the current mechanism that when the child reaches sthe age of majority that they are therefore entitled to know.  To rely on the Gillick Competence Test would give further level of uncertainty for donors as opposed to a clear demarcation line as to when the child turns 18.  Posthumous donation is typically happened in cases where men have been killed.  I’m aware of a case or cases where a court has authorised the removal of sperm from the deceased partner that the clinic has then been reluctant or unable to provide treatment.
It is suggested that there ought to be an alternative test:
a. If written consent from the donor; or
b. A court or tribunal has made an order for the retrieval of gametes from the deceased in which case it ought to be presumed that there is authorisation to carry out treatment.

7   Use of donated embryos

General Comments on Section 7
The issue of named donors appears to be an ongoing problem.  In Groth and Banks[2013] a man and a woman represented to a Victorian IVF clinic that they were a couple.  They were not.  Under the Status of Children Act (Victoria) he signed a form for the clinic to say that he was not a parent but merely a donor.
The ruling under the Family Law Act means that he was a parent.  It is essential in my view that known donors and the recipients of known donors ought to have the option of legal advice and preferably obtain that legal advice as to the implications of their actions.
A current trend is for lesbian partners to donate an egg to be carried by their partner.  There is a presumption by these couples that by virtue of these actions they will both become parents of a child, because the law says that they are both parents of the child and they have undertaken this project jointly.  I have been in several cases where the birth mother has presumed that she is the mother and the other mother is not.  This can have quite drastic implications if those parties separate. In the honeymoon period when the couple are considering having a child this issue appears not to have been adequately addressed by them.
In cases where a lesbian couple have a known sperm donor I am strongly of the view that there should be a written donor agreement, even though such a document is probably not legally binding.  The purpose of having such an agreement in place is to set out clearly in black and white for all concerned, including the IVF unit and the Federal Circuit Court or the Family Court later as  to the intention of the parties.
As was demonstrated in the recent case of Megan Jane Hooper, a copy of relevant news article is attached, Ms Hooper forged her husband’s signature.  It has been pointed out to me by overseas colleagues that if the consent forms had been properly witnessed by lawyers then the chances of such a fraud occurring would be minimal.  There’s certainly strength to that argument.


           


Q57. Have you encountered any difficulties in the interpretation and/or application of the current ethical guidance in Section 13?
There is ongoing difficulty for those in IVF units as to whether they have facilitated surrogate pregnancy for commercial purposes.  It has been said to me repeatedly by fertility doctors including the Fertility Society of Australia Conference last year when I presented about legal and ethical issues to do with surrogacy and at the Merc Sorono Conference this year in Brisbane that doctors do not know what the word “facilitate” means and they are therefore reluctant to provide any assistance to their patients.  Because a great divergence of views between doctors as to whether they could inform their patients about the availability of commercial surrogacy overseas, balanced against a concern that if they were to provide any information to their patients they might be facilitating surrogate pregnancy for commercial purposes or might be committing some criminal offence such as aiding and abetting payment of a donor for greater than her reasonable expenses incurred or aiding and abetting the entry into of a commercial surrogacy arrangement.
I note that in the Northern Territory commercial surrogacy is legal as there are no laws there concerning surrogacy.  The only clinic there, Repromed, will not undertake surrogacy, in part because there are no laws therefor there cannot be a parentage order made in favour of the intending parents – for altruistic surrogacy, and in part because if they were to engage in commercial surrogacy they would be in breach of clause 13.1.  In short compass the licensing requirements as set out in the guidelines should not be in addition on this point to the law in each jurisdiction.  Why should the Ethical Guidelines prohibit IVF Units from undertaking commercial surrogacy when the law in the Northern Territory does not?  Why is it unethical for doctors to undertake preliminary tests of patients whom have chosen to undertake commercial surrogacy overseas?  Whilst there might be difficulties for doctors specifically in Queensland, New South Wales and the ACT for doctors in Victoria, for example, where it is clear that it is legal to undertake commercial surrogacy overseas nevertheless for doctors to undertake that work might be seen as “facilitating commercial surrogacy”.
Q56. Do you think that there are gaps in the current ethical guidance in Section 13?
Begin typing…
Specific Questions
Section 13.2
Q57. In view of developments in other countries, should there be compensation, more than expenses, for gestational mothers congruent with the reproductive effort contributed?
I was once opposed to commercial surrogacy as I believed that it necessarily resulted in the exploitation of women and potentially the trafficking of children.  According to recent reports approximately 1000 children were born in India and Thailand alone to Australian intended parents in the year ended 30 June 2012.  If an international non-government organisation is correct and there are 20,000
I note that in the Northern Territory commercial surrogacy is legal as there are no laws there concerning surrogacy.  The only clinic there, Repromed, will not undertake surrogacy, in part because there are no laws therefor there cannot be a parentage order made in favour of the intending parents – for altruistic surrogacy, and in part because if they were to engage in commercial surrogacy they would be in breach of clause 13.1.  In short compass the licensing requirements as set out in the guidelines should not be in addition on this point to the law in each jurisdiction.  Why should the Ethical Guidelines prohibit IVF Units from undertaking commercial surrogacy when the law in the Northern Territory does not?  Why is it unethical for doctors to undertake preliminary tests of patients whom have chosen to undertake commercial surrogacy overseas?  Whilst there might be difficulties for doctors specifically in Queensland, New South Wales and the ACT for doctors in Victoria, for example, where it is clear that it is legal to undertake commercial surrogacy overseas nevertheless for doctors to undertake that work might be seen as “facilitating commercial surrogacy”.

There is ongoing difficulty for those in IVF units as to whether they have facilitated surrogate pregnancy for commercial purposes.  It has been said to me repeatedly by fertility doctors including the Fertility Society of Australia Conference last year when I presented about legal and ethical issues to do with surrogacy and at the Merc Sorono Conference this year in Brisbane that doctors do not know what the word “facilitate” means and they are therefore reluctant to provide any assistance to their patients.  Because a great divergence of views between doctors as to whether they could inform their patients about the availability of commercial surrogacy overseas, balanced against a concern that if they were to provide any information to their patients they might be facilitating surrogate pregnancy for commercial purposes or might be committing some criminal offence such as aiding and abetting payment of a donor for greater than her reasonable expenses incurred or aiding and abetting the entry into of a commercial surrogacy arrangement.
I note that in the Northern Territory commercial surrogacy is legal as there are no laws there concerning surrogacy.  The only clinic there, Repromed, will not undertake surrogacy, in part because there are no laws therefor there cannot be a parentage order made in favour of the intending parents – for altruistic surrogacy, and in part because if they were to engage in commercial surrogacy they would be in breach of clause 13.1.  In short compass the licensing requirements as set out in the guidelines should not be in addition on this point to the law in each jurisdiction.  Why should the Ethical Guidelines prohibit IVF Units from undertaking commercial surrogacy when the law in the Northern Territory does not?  Why is it unethical for doctors to undertake preliminary tests of patients whom have chosen to undertake commercial surrogacy overseas?  Whilst there might be difficulties for doctors specifically in Queensland, New South Wales and the ACT for doctors in Victoria, for example, where it is clear that it is legal to undertake commercial surrogacy overseas nevertheless for doctors to undertake that work might be seen as “facilitating commercial surrogacy”.

NSW surrogacy review

NSW is also undertaking a review of its Surrogacy Act 2010. I have also made submissions to that review. Thankfully NSW does not discriminate about the sexuality or the relationship status of intended parents. Here are my submissions:



30 April 2014
The Director
Justice Policy
Department of Attorney General and Justice
New South Wales
By email:        justice.policy@agd.nsw.gov.au
Dear Sir/Madam
Review of Surrogacy Act 2010
This is my submission as to the Surrogacy Review.
1.                  Who am I?
I am the leading surrogacy lawyer in Australia.  I have advised hundreds of clients in all 8 states and territories as well as clients from 15 countries overseas about proposed surrogacy arrangements.  I have or am about to engage in proceedings for parentage orders in Queensland, New South Wales and Victoria.
Many of my ART/surrogacy clients come from New South Wales.
I am a partner of a Brisbane boutique family law firm.  I was admitted in 1987 as a solicitor of the Supreme Court of Queensland, in 1989 as a solicitor of the High Court and in 2013 as a solicitor and barrister in South Australia.  A copy of my current curriculum vitae is enclosed.
In 2012 I obtained a world first precedent that conception is the act of pregnancy, not that of fertilisation.
I have given evidence to the Tasmanian Upper House inquiry concerning that State’s Surrogacy Bill, which resulted in changes to the bill before it was enacted.  I have also spoken to both Queensland and New South Wales MP’s regarding those States Surrogacy Acts.  I was the co-author (with now Federal Circuit Judge Harland) and the principal researcher of an article on State by State Surrogacy Laws (in 2011).  I chair the Surrogacy Australia Legal Committee.  I am one of three Australian Members of the International Surrogacy Forum and I am one of two
International representatives of the American Bar Association’s Artificial Reproductive Technology Committee.  In my role with that committee, I hold the responsibility for drafting a
position for the American Bar Association as to the proposed Hague Convention on international surrogacy.  I am a member as well of various legal and family law organisations.  This submission is my own.  The opinions I hold are my own and not of those of any organisation of which I am a member or of which I hold a position.
2.                  Family Law Council
I note that last year then Attorney-General Nicola Roxon asked the Family Law Council to review the interplay between the Family Law Act and the State Surrogacy Acts and related legislation.  That report was presented to the Attorney-General Senator George Brandis QC.  The recommendations of that report are unknown and the position of the Federal Government in response to that report is unknown.  It would be helpful in framing the review to know the outcome of that report and the position of the Federal Government.
In the course of that review I set out the various factors as to why people undertake surrogacy overseas and gave many examples as to the current problems with surrogacy law in Australia, including in New South Wales.  A copy of my two submissions dated 3 June 2013 and 28 June 2013 to the Family Law Council are enclosed.
3.                  National Health and Medical Research Council
I note that the council, which through its Ethical Guidelines[1] in effect licences IVF units nationwide, has commenced a review of the portion of the Guidelines covering donors and surrogates including asking as part of the preliminary process as to whether donors and surrogates should be paid.
4.                  What is right with the Surrogacy Act ?
The Surrogacy Act quite properly allows for the legalisation and regulation of surrogacy.  It sets in place a framework, along with other legislation, to allow the regulation of surrogacy.
It is imperative that surrogacy is able to be properly regulated.  Regulation brings with it one would hope the removal of exploitation – of surrogates, of intended parents, of donors and of children.  Regulation should also bring with it the removal of child trafficking.
The trick with regulation is to ensure that in meeting these laudable aims, and enabling the recognition of children born through surrogacy, that it doesn’t become so heavy handed that it defeats its purpose.
    4.1   No discrimination
There are real advantages with the Surrogacy Act as opposed to interstate legislation.  Those advantages include:
1.      The Surrogacy Act does not discriminate.  In this respect it takes a similar position to that in Queensland and Victoria.  It does not cast judgment about who can and who cannot be a parent.  This is in contrast to the other jurisdictions:
·         the ACT where intended parents must be a couple
·         Tasmania – where ordinarily all of the parties must come from that State;
·         South Australia where the intended parents must be married or in a heterosexual de facto relationship – thereby excluding gay and lesbian couples and single intended parents; and
·         Western Australia where the intended parents must be married or heterosexual de facto couples or lesbian couples or single women – thereby excluding gay couples and single men.
     4.2  Expenses
The Act also takes an inclusive approach as to expenses.  When the then Attorney-General George Hatzistergos stated that he would be following the lead of the Surrogacy Act 2010 (Qld), I had expected that the definitions used for expenses would be identical.  This was not the case and it is a terrible shame that identical language is not used in different States.
The language used for expenses is a matter with which the parties must comply.  If they do not then they risk entering into a commercial surrogacy arrangement, with the consequence that they are committing an offence.
There appear to be an assumption at the time of the drafting of the Bill that all those who enter into a surrogacy arrangement would come from New South Wales.  The reality is that there have been a number of interstate matters either with orders made, underway or contemplated in which, for example, the intended parents live in Queensland and the birth mother in New South Wales or the intended parents live in New South Wales and the birth parents in Victoria.
It would be ideal to have identical language rather than the differences in language.  Having said that the definition of expenses is sufficiently wide to allow expenses to be met.
In my view it is essential that the surrogate be cherished for the gift of life that she provides, especially when she potentially puts her life at risk.  It was recently estimated by leading fertility specialist Dr Warren DeAmbrosis[2] that a woman giving birth dies in one in ten thousand live births.  It would seem extraordinary with those odds that any woman would ever volunteer to be a surrogate.
     4.3  Insurance
It is essential, accordingly, in my view that adequate insurance is provided for surrogates, namely life insurance, health insurance and disability insurance.  The last can be difficult or impossible to obtain for women who are not in the workforce or self-employed.
In South Australia, by contrast with the situation in New South Wales which allows all these insurance products to be made available to surrogates, it is in effect an offence to provide life insurance to the surrogate.
     4.4   No overarching bureaucracy
Another benefit of the approach under the Surrogacy Act is that there is no requirement to obtain pre-approval from a state regulator, contrasting with the position in each of Victoria and Western Australia.  In my view the stated advantages of having a State regulator are in fact overstated and the cost burden to both the taxpayer and the users concerned is in my view unnecessary.
In my view IVF clinics are very concerned to ensure, quite properly, that at all times they meet their licencing requirements, including those of ensuring that they are compliant with the National Health and Medical Research Council Ethical Guidelines.
I have had the privilege of dealing with four Sydney IVF clinics as to surrogacy/ART matters,  In my view all the clinics take their legal responsibilities very seriously, and strive to comply with the spirit, as well as the letter, of the law.
      4.5    Supreme Court   
I also believe that the Surrogacy Act gets it right in requiring that applications for parentage orders be made in the Supreme Court.  This is the superior court of record of New South Wales and was always the court that exercised parens patriae jurisdiction it is clearly the appropriate court in which these applications ought to be made pending of course any potential referral of power to the Commonwealth so that these applications could be made in the Family Court of Australia or the Federal Circuit Court of Australia.  By these applications being made in the Supreme Court if there is any defect in any application, there is the potential at least for the Supreme Court to exercise its cross-vested power.  It is a pity that in general other States, such as Queensland and South Australia did not see fit to invest their Supreme Courts with this jurisdiction.
    4.6    In Chambers
The one criticism that I would have about the Supreme Court process, as I have brought parentage order applications successfully in the Supreme Court as well as in the Children’s Court of Queensland and have a matter pending currently in the County Court of Victoria – is that the proceedings in the Supreme Court are in chambers.  This means in effect that the various paperwork including application and affidavits are filed in the Supreme Court and then about 3 weeks later the orders issue.  Whilst this may be appropriate to the rigorous demands of that Court, I would suggest that a better approach, being more inclusive of the surrogate and her partner and of the intended parents is that there be a requirement for the appearance to occur in
Court.  Having had the alternate experience of having to attend at Court and having talked to colleagues in Victoria, it is my view that it is certainly better for all concerned that there be a court appearance.  In my view it is likely that these applications will largely be made by solicitors on the papers with extensive submissions so they should be a fairly quick process, assuming that all the requirements of the legislation have been met and especially that the best interests of the child have been provided for.  There is not a much larger cost in going to court as opposed to doing the matter in chambers.  Most of the cost incurred by the parties at that point of the surrogacy arrangement is in preparation of affidavit material, with the obtaining of reports and the preparation of submissions.
For intended parents, birth mothers and their partners, the appearance in court is both nerve wracking before court and a wonderful release afterwards.  It is a clear recognition by society that this baby and all who sail with it in the ship of that surrogacy arrangement have the imprimatur of the State.  It is a joyous experience which is simply not matched by the matter being dealt with in chambers.  The matter being dealt with in court has a richer, more inclusive nature to it and I would strongly urge that it be adopted (whether under the Surrogacy Act or appropriate practice direction or other rules of the Supreme Court) to allow the procedure to occur in court as opposed to in chambers.
There are two clear advantages that the Surrogacy Act has over some interstate equivalent legislation:
1.      There is not a requirement for treatment to occur in New South Wales.
2.      There is not a requirement for the parties to reside in New South Wales before they enter into the surrogacy arrangement.
Place of treatment
Like Queensland, but unlike Victoria, in effect Tasmania[3], The ACT, South Australia and Western Australia there is no requirement for treatment to occur in New South Wales.  This may not seem of great significance, but it is of great advantage in allowing flexibility for intended parents.
            Example
Dom and Charmaine wish to undertake surrogacy.  Although Australian citizens and residents of New South Wales, they have previously lived in the United States.  While living in California, they created a number of embryos comprised of Dom’s sperm and Charmaine’s eggs.  These embryos were frozen.  One of these embryos was previously used when they undertook commercial surrogacy in California.  Commercial surrogacy is legal in California.  Their eldest child Taylah was born in California.
They decide to undertake surrogacy.  Realising that it is illegal to enter into commercial surrogacy in California again, Dom and Charmaine explain the problem to their family.  Charmaine’s sister-in-law Lauren agrees to be a surrogate.
Dom and Charmaine then have three options:
1.         Create new embryos. In accordance with the National Health and Medical Research Council, Ethical Guidelines, in a clinic in Sydney and then undergo implantation of Lauren in Sydney.  Not surprisingly this is their least favourite option, because they want to use the embryos they have already created that are currently in storage in California.
2.         Ship the embryos from California to Sydney for treatment to occur in a Sydney IVF Clinic.  There are two problems with this approach – one physical and one from a practical viewpoint.  The physical problem is that in shipping there is a low risk of the embryos being lost in the thawing process once they have arrived in Sydney.  There is a lower risk of loss of the embryos, in their view based on the advice they have received, if treatment occurs in California.  The other practical issue is that because they received counselling from an experienced psychologist before their embryos were created and before they undertook surrogacy, but that counsellor was not an ANZICA counsellor, therefore there was a real risk that an IVF clinic in Sydney would not treat because counselling was not in compliance with the NHMRC Ethical Guidelines.
3.         Undergo treatment in California with the surrogate to fly to California for treatment. 
Dom and Charmaine decide on the last option, although it is the most expensive of the three because they believe that the doctor being a renowned expert in the field will be recognised as an expert in the Supreme Court.  As at the time of preparation of this submission the child is shortly due to be born.
It might be noted that if the model in other States (other than Queensland) were adopted the ability to undertake this treatment overseas would not be available to them.
It might also be noted that the costs of IVF treatment in California are only marginally higher than that in Australia for surrogacy (as there is no taxpayer subsidy here).
    4.8    Resident
There are a good number of expatriates who wish to undertake surrogacy in Australia, typically with family or friends.  A requirement that the Surrogacy Act has, in common with Queensland, but not in common with the other jurisdictions is a requirement that the intending parents reside in New South Wales at the time of the making of the parentage order.  This means that there is not a requirement for the intended parents to live in New South Wales at the time of entering into the surrogacy arrangement.  This approach has flexibility as well as appropriate regulation.
    4.9    Language
I am pleased that the Surrogacy Act has adopted the language of “intended parents, birth mother, and birth mother’s partner”.  In doing so it has adopted international norms and has reflected the reality of intended parents.  It has not fallen into the mistake, as I see it of appearing to be a commercial transaction such as Victoria’s words of “commissioning parents” or demeaning of the intended parents such as in the ACT where they are called “substitute parents” or that of Western Australia where they are called “arranged parents”.
5.                  What is wrong with the Surrogacy Act
The Surrogacy Act and related legislation[4] whilst regulating surrogacy does so in such a
manner that in effect it forces people to undertake surrogacy somewhere else.
Changes required for surrogacy in New South Wales
1.      Taking a national approach;
2.      The ability to advertise for a surrogate;
3.      The ability to advertise for a donor;
4.      The ability to pay for a donor;
5.      The ability to pay for a surrogate;
6.      The ability to undertake commercial surrogacy overseas.
    5.1    Taking a national approach
Australians are mobile, as we have seen in recent times with the great numbers of Australians flocking to Western Australia during the mining boom.  It is essential that so far as is possible a national approach is taken to surrogacy laws. 
I note that there is a broadly similar model of regulation in five jurisdictions: Queensland, New South Wales, the ACT, South Australia and Tasmania – namely that surrogacy is undertaken without the need for pre-approval from a State beaurocracy and instead counsellors, lawyers and IVF clinics can be trusted to ensure that thorough screening is undertaken prior to commencement so as to ensure that there is not commercial surrogacy being undertaken, that there is not exploitation of the surrogate or of the intended parents, that all parties at the right time receive counselling and legal advice and appropriate medical help.
I note that when Tasmania was debating its Surrogacy Bill in 2011 the then Attorney-General,              specifically rejected the Western Australian approach as being too restrictive and slow.  I note in passing that the Upper House committee which reviewed the Surrogacy Bill also toyed with the idea of having the pre-approval by a judge of proposed surrogacy arrangements (presumably in a similar manner to that in South Africa) but rejected that also no doubt as being too restrictive as it added to costs to the parties and to taxpayers, without adding a greater benefit.  That pre-approval model also envisaged that after the child was born a parentage order would be made, necessitating therefore a minimum of two court appearances with the paperwork and costs associated with each.
Under the model of final approval, approval is granted at the end by the making of a parentage order at which stage a Judge has the opportunity to review all that has happened before.  The effect of that judicial check and balance is that the parties ensure that they comply with all steps prior to that point because their aim as is the aim with any intended parent is to ensure that not only a baby is conceived and born but that the parents are recognised by the community as a matter of law as the parents of that child, including on the birth certificate of that child.
Example:
Joanne Blow is a widow in Sydney.  It was always the dream of her and her husband to have children.  Tragically he died.  Joanne has had a number of miscarriages and has been unable to carry children.  She has since learnt that her eggs are not viable either.  She wishes to proceed by way of surrogacy.  Due to the complexity of her proposed surrogacy arrangement, she does not     meet the internal guidelines of one of Sydney’s IVF clinics and another decides that it will not assist.
Joanne then decides to undertake medical treatment in Brisbane.  There is no prohibition in Queensland in undertaking surrogacy treatment for those who live interstate. Joanne executes a surrogacy arrangement. Her surrogate and the surrogate’s husband live in Western Australia.  Her egg donor comes from Queensland and her sperm donor from New South Wales.
The surrogacy arrangement:
            -Is a New South Wales surrogacy arrangement because Joanne lives there.
-Must comply with the Surrogacy Act 2010 (Qld) because the clinic is in     Queensland.
            -Must not fall foul of the Surrogacy Act 2008 (WA) because the surrogate and       her husband live there.
-Must comply with the National Health and Medical Research Council, Ethical      Guidelines on the use of Assisted Reproductive Technology in Clinical Practice            and Research, 2007 – as that is a licensing requirement of the IVF clinic.
            -As the sperm donor is from New South Wales there must be compliance with       the Human Tissue Act 1983 (NSW).
            -As the egg donor is from Queensland there must be compliance with the   Transplantation and Anatomy Act 1979 (Qld).
            -Must not be commercial trading in human eggs or sperm and therefore must          comply with the Prohibition of Human Cloning for Reproduction Act 2002    (Cth), the Human Cloning for Reproduction and other Prohibited Practices Act 2003 (NSW) and the Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 (Qld).
             
    5.2    The inability to advertise for a surrogate
It is an offence under the Surrogacy Act to advertise – except where the advertisement is for free and except where it is for an altruistic surrogacy arrangement.
As a daily event surrogates and intended parents advertise.  They are not prosecuted, despite there being similar laws in every State and Territory (other than the Northern Territory).  This law is ineffective.  It is not an offence, for example, for an intended parent to read an advertisement placed by a potential surrogate and then to contact that potential surrogate.  If given the option many Australian intended parents would rather undertake surrogacy with an Australian surrogate than with a surrogate overseas.
It is suggested that the ability to advertise should not be restricted to free advertisements. 
    5.3    Inability to pay the donor
It is an offence under section 21 of the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) to pay an egg or sperm donor anything other than “reasonable expenses incurred” (which phrase has not been defined as there have been no prosecutions to my knowledge).  The penalty for committing the offence is a maximum of 15 years imprisonment.  Section 24 of that Act allows for the operation of State laws.  The equivalent provision is section 16 of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (NSW) which allows for a maximum of 15 years imprisonment.
Intended parents in New South Wales faced with these laws and a shortage of donors are undertaking egg donation overseas.  Many intended parents knowing that they cannot have children themselves and believing that the cure is surrogacy unnecessarily have decided to undertake surrogacy overseas whereas the cure in their particular case may merely be that of egg donation.
The availability of egg donors seems to vary.  Recently Dr Warren DeAmbrosis, Fertility Specialist in Brisbane, told a surrogacy seminar in Brisbane that the delay in undertaking egg donors through Queensland Fertility Group was approximately 6 years.  From talking to my overseas colleagues, this appears to be the worst in the world, and reflected in New South Wales and Victoria.  Monash IVF has been able to import egg through its operations in Queensland and Victoria from the World Egg Bank in Arizona.
Australians have undertaken egg donation in places as disparate as Argentina, South Africa, Spain, Greece, Ukraine and the three places where Australians typically go for surrogacy are: India, Thailand and the United States.
Given that it has been estimated that one in six Australian couples have infertility problems it is likely that the number of Australians including New South Wales residents undertaking egg donor arrangements overseas will increase.
If the Surrogacy Act is looked at in isolation without consideration of the various parts that need to be changed to enable the legitimate expectations of New South Wales intended parents to become parents then the review will by its nature fail.
I am told that the delay in obtaining eggs from an egg donor through a website takes approximately 8 weeks.  Reports vary.  Queensland clients of mine reported to me that they approached 40 prospective egg donors and were unsuccessful with all save a prospective donor in Western Australia who wanted to be paid $5000 which she wanted to then use to undertake surrogacy overseas.  Not surprisingly, my clients declined her offer.
Note:  Section 10C of the Crimes Act 1900 (NSW) makes it plain that those who undertake commercial surrogacy outside New South Wales or those who pay egg donors other than “reasonable costs incurred” outside New South Wales may well be committing a criminal offence in New South Wales.  Section 10C provides:
            “(1) If:
a)      All elements necessary to constitute an offence against the law of the State exist (disregarding geographical considerations), and
b)      A geographical nexus exists between the State and the offence,
the person alleged to have committed the offence is guilty of an offence against that law.
            (2)  A geographical nexus exists between the State and an offence if:
a)      The offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or
b)      The offence is committed wholly outside the State, but the offence has an effect in the State.”
In other words if the offence is committed in part in New South Wales or the effect in New South Wales, the offence occurs in New South Wales.
I also note here the similar provision in section 32(3) of the Human Tissue Act 1983.
            Example of committing offences
Damian and Bianca Smith live in Sydney.  They have contacted the You Want a Baby Now Surrogacy Agency in Thailand.  The agency makes it plain that surrogacy can be completed efficiently, quickly and cheaply in Thailand and the agency will assist them in obtaining Australian citizenship for their child in Bangkok.  The agency sends them two agreements:
·                     Agreement with the surrogate
·                     An egg donor agreement
           
Both purport to be altruistic, but certain agency expenses are to be met.
            Damian and Bianca receive these documents by email, print them, sign and date them, scan them and email them back.
Damian and Bianca, by virtue of section 10C may have well committed an offence under section 16 of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 and by virtue of sections 8 and 11 of the Surrogacy Act 2010, the latter of which provides for an extra geographical nexus for offences, which is 2 years for breaching the Surrogacy Act and 15 years for breach of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003.
    5.4    The inability to pay the surrogate
In my view the extension of the geographical nexus under section 11 has been remarkably ineffective.  The purpose of it, as I understand it from talking to MP’s was that it was intended to ensure that women in developing countries were able to be protected, and that related to this, a strong message would be given by Parliament which would have the effect of deterring people from undertaking surrogacy overseas due to concerns also about the potential exploitation of intended parents and particularly about the trafficking of children.
As far as I am aware there have been no prosecutions, but it is beyond reasonable doubt that many people from New South Wales have undertaken commercial surrogacy overseas. 
The extra-territorial ban has been King Canute holding back the tide; a symbolic and futile gesture which has been completely ineffective.
Others have moved interstate, particularly to Victoria and less so to Western Australia and the Northern Territory, so that they do not commit offence and some also have moved overseas particularly to the United States.
The ban was brought in with no community consultation, which then resulted in an uproar after it was enacted, the effects being set out in the extraordinary section 11 of the Surrogacy Regulation 2011 which, contrary to the obvious words of section 10C of the Crimes Act 1900 in effect provides that if anyone has entered into a surrogacy arrangement overseas before 1 March 2011 or at least signed up an agency before that date they cannot be prosecuted.
There ought to be the ability to pay surrogates.  As Professor Jenni Millbank demonstrated, in the year ended 30 June 2012 approximately 1000 children were born to Australian intended parents in India and Thailand alone.  This figure is astounding.  It demonstrates the inability of Australian parliaments to meet the legitimate needs and aspirations of Australians.  It makes surrogacy so difficult that Australian intended parents are voting with their feet and going overseas.  My experience of clients from New South Wales is that they have undertaken surrogacy overseas in:
·         India
·         Thailand
·         United States
I have had clients from New South Wales enquire about undertaking surrogacy in Mexico.  As I indicated above, there are currently negotiations in place as to a proposed Hague Convention on International Surrogacy.  Such a convention is likely not to be in place for several years.  Hopefully a properly drawn convention will help protect the human rights of surrogates in developing countries, reduce the chances of child trafficking and protect the interests of intended parents and donors.  Above all, hopefully a convention will protect the interests of children.
As part of the lobbying efforts associated with the convention, an international adoption non-government agency has estimated that there are approximately  20,000 international surrogacy arrangements per year in the world i.e. the child is born in country A and then moves to country B where the intended parents came from.  If that number is correct, then one in twenty international surrogacy arrangements involve Australians remembering that Australia has a population of 22 million.  This is an extraordinary figure.  However, in October last year I had discussions with a colleague, Mr John Weltman who is the founder and president of one of the world’s leading surrogacy agencies, Circle Surrogacy in Boston.  It is the estimate (and no more) of Mr Weltman and mine that there are approximately 4,000 – 5,000 international surrogacy arrangements each year in the world.  If this number is correct then the number of Australian babies each year in India and Thailand alone are 20 to 25 per cent of the whole of the world’s international surrogacy arrangements.  Certainly my experience has indicated that there are more New South Wales residents undertaking surrogacy overseas than undertake it locally.  This is not just limited to gay or single men but also applies to those in married and heterosexual de facto relationships.
The perception of these clients is quite simple: it is too hard to undertake surrogacy in New South Wales and they would rather go overseas.  I have set out these perceptions in my submissions to the Family Law Council inquiry, which are attached.
Commercial surrogacy has been an anathema for Australian politicians who are rightfully concerned that there ought not to be exploitation of women’s bodies nor child trafficking.  The reality about the regulation of commercial surrogacy is that in much of the United States that regulation occurs and it has worked; in the case of California for example for over 30 years.
At the moment if a New South Wales couple wants to find a surrogate (because they don’t have a family member or friend who will be a surrogate), they take pot luck as to the quality of any potential surrogate.  There is currently no great screening ability of potential surrogates as occurs with surrogacy agencies in the United States who are extremely thorough in screening potential surrogates.  Commercial surrogacy can be undertaken with appropriate safe guards in New South Wales that would continue to protect the surrogate, the child, the intended parents and donors – without the sky falling in and avoiding exploitation and trafficking.
Example: 
Will and Bart are a gay couple who are teachers living in Albury.  They wish to undertake surrogacy.  They have found a suitable surrogacy agency in the United States.  They are employed by the New South Wales Government as teachers.  Will and Bart decide, so as to not commit an offence under the Surrogacy Act to undertake commercial surrogacy in the United States.  By then doing so they move to Wodonga.  It is legal in Victoria to undertake commercial surrogacy overseas.  They then commute from Wodonga to Albury daily for work.  They act properly and continue to be able to be employed by the New South Wales Government and remain registered as teachers.  They have not committed any offence.  They have complied with Victorian law.  They were not ordinarily resident or domiciled in New South Wales at the time of entering in to the surrogacy arrangement in California.
6.                  Costs of Surrogacy
Undertaking surrogacy in Australia is cheaper than overseas.  The cost in the Eastern States at least varies from $25,000 to $60,000.
An IVF cycle costs approximately $15,000, and legal costs are $10,000 - $15,000.
If there is one cycle and lower legal costs, the cost is $25,000.  If three cycles and higher legal costs, the cost is $60,000.
By contrast the cost overseas is:
India                $80,000
Thailand          $80,000
USA                $100,000 - $250,000
7.                  Who can counsel
The wide definition under regulation 7 of the surrogacy Regulations 2011 should form part of the act and that definition to include social workers, psychologists and psychiatrists should include those counsellors who undertake the preliminary counselling.  Provided that the counsellor has the relevant experience it the initial counsellor does not need to be an ANZICA counsellor.  For example, in one of my surrogacy arrangements in Queensland I acted for the intended parents.  The wife was a clinical psychologist.  She took objection to a psychologist being the counsellor because she said the MMPI test, which counsellors typically use, was patronising and irrelevant to the process of surrogacy.  Instead I was able to ensure thorough counselling was provided by a very experienced social worker.  The requirement in Queensland, for example, for counselling is that the person is one of the following:
a.         A member of the Australian and New Zealand Infertility Counsellors Association
b.         A psychiatrist who is a member of the Royal Australian and New Zealand College            of Psychiatrists
c.         A psychologist who is a member of the Australian Psychological Society
d.         A social worker who is a member of the Australian Association of Social Workers             and
            e.         Has the experience, skills or knowledge appropriate to prepare the report.
It has been the practice by some counsellors who undertake the initial counselling to then undertake the relinquishment counselling of the birth parents.  Other counsellors decline to do so as it is unclear whether parliament and the Government by virtue of the regulations there to be three counsellors involved in the process or two.
By the time relinquishment counselling has occurred, the child has already been handed over.  For clients who are birth mothers and their partners, this counselling seems to be pointless save that it is required by the legislation.
The experience from Queensland is that having thorough initial counselling with a thorough report from the counsellor, together with thorough legal advice before the surrogacy arrangement is entered into along with the obtaining of the independent assessment by an experienced report writer demonstrates clearly to the court that the parties knew what they were doing and were not acting under duress or some disability.
The relinquishment counselling adds to cost and to my mind adds little benefit.  What would be more effective in my view is not a legislative response but to continue to work with ANZICA to encourage counsellors to offer counselling to the intended parents and the birth mother and her partner, in addition to that initial counselling but by that same counsellor at 3 months and 6 months of term and 3 months post birth.  This is in accordance with the original protocols prepared by the pioneers of surrogacy in Australia, Canberra Fertility Clinic.  That counselling is to be paid for by the intended parents.  It ought not to be compulsory but as requested.  Prevention, after all, is better than cure.
From my experience where there is a heterosexual couple who are the intended parents and a surrogate has a spousal partner, the most likely people undertaking that further counselling are the intended mother and the birth mother alone.  In those types of arrangements it is essential that there is a good bond between those women, that any problems are able to be nipped in the bud and that the counselling can be used to build on the bond between them and repair any potential problems.
8.                  China
Australia has been a pioneer since the inception of IVF.
A current trend that will accelerate in coming years is the number of Chinese infertile couples accessing donor egg and surrogacy services in the United States.  Because of the regulation of IVF units donors in surrogacy in Australia, including under the Surrogacy Act, it is not possible to attract this business to Australia.  Increasingly surrogacy agencies and egg donor agencies in the United States are targeting their services to potential Chinese customers.
9.                  Availability to give evidence
I am able to give evidence or otherwise assist further if called upon.
Yours faithfully                                                         
Stephen Page                                                            
Harrington Family Lawyers                                   



[1] NHMRC, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical practice and Research, 2007
[2] Dr DeAmbrosis is a fertility specialist in Brisbane.  He was one of the founders of the Queensland Fertility Group.  He advised a public forum “So you want to make a baby” in Brisbane in April 2014 of this statistic.
[3] Because of the requirement that in effect all the parties must come from Tasmania therefore the treatment must in reality occur in Tasmania.
[4] I note that this review is only related to the Surrogacy Act