Sunday, 29 November 2015

Bleijie supports gay marriage

Politics in Queensland are like nowhere else. We are witness to this just now with former Attorney-General Jarrod Bleijie announcing his support for equal marriage, and supporting civil partnerships. His action seems to have triggered the LNP for the first time allowing a conscience vote on the civil partnership laws.

The scale of this backflip is breathtaking. Back in 2012, Bleijie as Attorney-General got rid of civil partnerships, so that there were registered relationships instead. This all happened in about 48 hours, as it was considered "urgent" legislation. If that weren't enough, Bleijie then pushed to wind back the State's surrogacy laws, so that it would become a criminal offence if a gay, lesbian or single intended parent entered into a surrogacy arrangement; and he also sought to remove, alone of all the States, the recognition of non-biological mums in lesbian relationships as parents of their children. Thankfully his position then softened. Ultimately the Newman government deferred the surrogacy changes, never to be heard from again.

Bleijie was seen as the hard, uncaring face of government. His position was clear: children should not be conceived through surrogacy arrangements by gays, lesbians and singles- "because every child deserves a mother and a father."

Bleijie, who is also a marriage celebrant, sums it up when it comes to who can and can't get married:
“Marriage should be a statement of love and commitment between the happy couple; not an institution that rejects those who wish to enter it with the best intentions.’’


Monday, 23 November 2015

Queensland LNP allows conscience vote on civil partnerships laws

Queensland has at times the most extraordinary politics. Today Opposition Leader Lawrence Springborg announced that the LNP party room has, for the first time, allowed a conscience vote on the proposed civil partnership bill. 

This is just a few days after the LNP members of the committee examining the bill sought to prevent any report being written about the submissions made and evidence given, including by me. 

The pressure may now be on Premier Anastasia Palaczszuk to see if she now allows ALP members a conscience vote.
If she doesn't, the bill is bound to pass, even without the support of Speaker Peter Wellington and Independent Billy Gordon. 

We live in interesting times. 

Sunday, 22 November 2015

Wild, wild west- don't go to Cambodia for surrogacy

Today I came across a story from the Sydney Morning Herald about surrogacy in Cambodia.
I had heard some time ago that following the Baby Gammy saga, Thai clinics were moving to Cambodia.

Australia, according to Transparency International, is the 11th cleanest country for corruption. The US is number 17, and Cambodia is number 156, out of a possible 175.

In Asia, those previous places of surrogacy, India, Nepal and Thailand are rated as a lot less corrupt. In fact, the only places worse in Asia for corruption are Myanmar, Afghanistan and North Korea.

The infant mortality rate in Cambodia is over 10 times worse than Australia: about 42.1 per 100,000 live births. In Australia it is 4 per 100,000.

Anyone who goes to the Wild West, Cambodia, for surrogacy, is asking for trouble. Quite simply, they shouldn't.



Unmitigated Mexican surrogacy disaster

I hate surprises. When it comes to surrogacy (or other court cases for that matter) I very much believe in prevention is better than cure. I would rather clients tell me what the dramas are, in a candid manner, so that they can be planned and accounted for, rather than trying to fix up a mess.

When it comes to surrogacy, I like to plan the process at the beginning, using people I like and trust, who can assist my clients all the way through. For domestic surrogacy arrangements, this may be other lawyers, financial planners, counsellors and IVF doctors. I just want it to go right first time, or at least have the greatest chance of going right first time. And if it doesn't go right first time, to do what needs to be done to fix it- easily, quickly, and as cheaply as possible.

Any surrogacy journey can have dramas, which most of the time will be medical, but can be regulatory. For those going to developing countries, it is very much a case of buyer beware. Going overseas for surrogacy, with IVF and using an overseas surrogate, and often an egg donor, is one of the most complex ways of becoming a parent, and things can go badly wrong.

Doing surrogacy at home can be a truly beautiful experience, despite the hurdles, as seen here and here

Those contemplating going overseas ought to rethink about whether they can do so back home. For some people, such as singles, gay and lesbian couples living in South Australia, or single men and gay couples in Western Australia, at first glance they have little choice but to go overseas. However, it may be possible for them to undertake surrogacy in Queensland or New South Wales. The delay may be no greater than an overseas trip, risk is down and cost may be especially down. Domestic surrogacy arrangements can be as cheap as $25,000 to $60,000, which is usually a lot cheaper than anywhere overseas.

A good illustration of things going wrong is this terrible tale of an Australian couple going to Mexico in today's Sydney Morning Herald:

 "The list of problems included the destruction of our embryo by the clinic through an error in the freezing process and the mixing up of paperwork on transfer of embryos between clinics. We weren't even sure the embryos transferred in to the surrogate were ours for a period of time.
"In some ways we are glad this devastating experience is over, for us and also for the surrogate mother who didn't fall pregnant."
One laboratory report stated that the "technique used is terrible". The couple said that while the two clinics argue who is the least incompetent, they are heartbroken at seeing the photos of the destroyed embryo.
Mr Yii added: "We where given assurance by our Australian lawyer who did due diligence on a number of clinics that the one we were to use was 'the most professional and ethical clinic with the most experience in Mexico'. Clearly the best in Mexico has failed."

I was not the lawyer who advised this couple. 

Queensland Civil Partnerships Bill to proceed

Late last week the Queensland Parliament committee delivered its report into the proposed civil partnerships bill. What was not in the report was the main message- the Queensland LNP State MP's are firmly against the recognition of rights for LGBT people. No other message could be garnered- when they sought to censor the evidence of submissions to the inquiry.

I have given evidence to a number of Parliamentary inquiries. I will give my view of the world. I will be accepted, rejected or ignored, but I didn't expect that the LNP MP's would seek to prevent ANY of the submissions or evidence of ALL of the witnesses from appearing in the report.

The message is clear. Do not assume that a vote in favour at the plebiscite is a done deal. It should be assumed that there will be fierce opposition, and that the plebiscite will only succeed with organisation and determination.

There has been no statement by the Opposition about why they tried to censor what was said. The message was one that certain members of the Opposition did not want to hear: the submissions were overwhelmingly in favour of the change.

The vote was split evenly along party lines, which meant that the Committee was unable to reach a recommendation to Parliament. When I checked with my local MP today, Labor's Grace Grace, I was told in no uncertain terms that the vote would not prevent the Government from proceeding with the Bill. The Government qill be proceeding with its Bill. The silence of the Opposition members masked their opposition. Why didn't they just say that they were opposed to the changes?

This is what chair Mark Furner (ALP) said:

government members of the committee express their disappointment that the committee was unable to reach agreement on this Bill, or present the evidence provided to the committee from those who gave us personal stories about how this Bill if passed would change their lives.
 The ALP members set out the submissions and evidence to the committee. I am quoted here:

The Bill re-instates the opportunity for same sex relationships to have a public
celebration of their love.
Love is love. Those in same sex relationships are denied the ability to marry in
Australia. Their relationships are to all intents and purposes invisible.
Nevertheless, same sex couples wish their relationship to be recognised. The ability to merely fill out a form without any public celebration of their love is short changing these couples in having that love celebrated with their friends and family, and, if they are religious, with God.
The key to the 2012 amendments was to deny that public celebration of love. This short changed all the couples involved and as a result impoverished our society by not recognising, in an appropriate way, those relationships. The State should not be preventing those who wish to have the public celebration of their love by a means other than marriage from enjoying and cherishing that public celebration. Two autonomous adults should be able to make that choice without interference from the State.
An odd provision of the Relationships Act and it is continued under this bill is that a registered relationship is similarly [to its registration] ended by form filling.
Under section 18 the registrar of births, deaths and marriages is required to decide without any statutory criteria, other than possibly considering conflicting statutory declarations of the parties, as to whether or not a registered relationship has
ended. This function should not be left to bureaucracy but put in the hands of courts, as it was in the Civil Partnerships Act, where, if there is a conflict about whether or not a relationship has ended and when, it could be properly decided in an accountable way by the third arm of government to which appeals and proper processes are open to an aggrieved party.
Mr Page (a family lawyer) pointed out that the types of scenarios where there is disagreement about
the ending of a relationship relate to questions of whether the parties were in a relationship at all:
I can tell you that quite frequently there is litigation between couples as to whether or not they are in a relationship. Having a registered relationship or a civil partnership and certainly I prefer a civil partnership because of the ceremonial
aspect of it is essential because if the couple have done that then there is no dispute that they are in a de facto relationship and they might save, in the process I do not know
—$100,000 and $30,000 of Commonwealth taxpayers’
money. I know that is the Commonwealth’s, it is not the state’s, but nevertheless it is a saving to society. It is money that, instead of funding people like myself, could be put towards their children.

Mr Page indicated that the government had suggested QCAT was an option for reviewing decisions
made by the registrar, but considered it should be decided ‘...
in a court, make sure if there needs to
be evidence given there can be evidence given and a determination is made under law as to whether
or not the relationship has ended

Catching up with Michael Tiyce

On Friday I finally met one of my interstate colleagues- prominent LGBT family lawyer Michael Tiyce. In the nature of today's modern world, Michael and I have kept in regular contact- by phone, email and by Facebook, of course, but as he is in Sydney and I am in Brisbane, for some reason we had never met.

That was fixed on Friday, when I caught up with Michael and his associate Barry Apelbaum in Sydney. I was in Sydney to obtain a surrogacy parentage order.

Both Michael and Barry are keen on attending the LGBT Family Law Institute regional meeting in Brisbane on 12 and 13 March, 2016. This will be the first regional meeting of the LGBT Family Law Institute meeting in Australia, and the second outside the US (the first being in London in May this year).

Thursday, 12 November 2015

Victorian Bill to remove adoption discrimination

Later today, fingers crossed, the Victorian Upper House will hopefully pass laws to remove same sex discrimination from adoption laws in Victoria. The Bill has already passed the Lower House.

Currently half of Australia by jurisdiction, and greater than half of the Australian population, is subject to laws that prevent same sex couples from adopting children. Human Rights Commissioner Tim Wilson has called for the repeal of the laws. The discriminatory laws are in: Victoria, Queensland, the Northern Territory and South Australia.

The proposed change in Victoria will bring Victoria into line with those places that do not discrimination on the basis of sexuality in adoption: New South Wales, the ACT, Tasmania and Western Australia.  Despite the statements of the Chicken Little's of the world, the sky has not fallen in those places when they legislated to allow adoption by same sex couples. Queensland has also pledged to remove this discrimination and South Australia is reviewing how its laws discriminate against same sex couples.

The irony of the discrimination is that everywhere in Australia same sex couples are accepted as foster carers. If they are good enough to care for our most troubled and vulnerable children, why can't they be allowed to adopt?

When I say fingers crossed, I understand that the numbers in the Upper House are finely balanced, and the vote could go either way.














National surrogacy seminars

Surrogacy seminars in just over a week


In just over a week,  Families Through Surrogacy will be hosting surrogacy seminars throughout Australia- in Perth, Adelaide, Sydney, Melbourne and Brisbane.

I will be speaking at the Brisbane seminar on Tuesday 24 November, 2015. Other speakers include speakers from the Ukraine, Canada and Oregon.

Many Australians choose to go overseas for surrogacy, believing that it is quicker, easier and cheaper than back home. Properly organised, surrogacy in Australia should be cheaper and should be easier than going overseas, while providing legal certainty. The difficulties in organising local surrogacy usually revolve around finding a surrogate and an egg donor, and discrimination issues.

Local laws tempting people to go overseas


ACT

In the ACT those undertaking surrogacy have to be a couple, and the surrogate also has to be part of a couple. There isn't discrimination on the basis of sexuality. Fertility treatment must be in the ACT. Due to geography, these problems can usually quickly be avoided, as NSW does not have these restrictions.

Tasmania

Under the Surrogacy Act, all the parties must, unless a court orders otherwise, be from Tasmania. The problem is that the court makes the order after the baby is born- and therefore after the decision is made whether to go ahead with the surrogacy arrangement.

South Australia

SA discriminates against singles and same sex couples seeking surrogacy.

Northern Territory

The Northern Territory has no surrogacy laws. The effect is that IVF cannot be performed there, and those living in the NT have to go interstate or overseas.

Western Australia

WA discriminates against single men and gay couples. Single women, and lesbian couples can access surrogacy in WA.

Where there are legal complications if you decide to go overseas



If you choose to go overseas for surrogacy, then there is always a legal complication as to citizenship (assuming you are an Australian citizen) or visa conditions (assuming you are a permanent resident or NZ citizen living in Australia) and as to whether or not you are a parent.

On top of that there are State laws where it makes it complicated and potentially a jail term by accessing surrogacy overseas. Here is the State by State guide- current as of 12 November, 2015:

Queensland

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

New South Wales

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

ACT

Potentially you could go to jail for accessing surrogacy overseas.

Victoria

No complications.

Tasmania

No complications.

South Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

Western Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas. It is a crime for Western Australian lawyers to advise you about overseas commercial surrogacy.

Northern Territory

No complications.


Sunday, 8 November 2015

Evidence about Qld's proposed civil partnership laws

Last Tuesday, when the rest of the nation was enjoying the afterglow of a female jockey for the first time winning the Melbourne Cup, I was giving evidence at Queensland Parliament.

The purpose was about the proposed civil partnership laws, which I have blogged about before. I can now publish my written submission, which is here.

On the morning of the committee hearing, I had another look at the bill, and the earlier versions- the  Bligh 2011 laws and then the Newman 2012 replacement.

While my commitment to the proposed laws had not changed, the new look resulted in me saying three things to the committee:

  1. that there is a disconnect between those who choose to have a civil partnership (or relationship as styled under the 2012 Newman laws) but do so by filling out a form, so that they are deprived of the ceremony. They can have a ceremony, but no connection with the legally recognised relationship.
  2. that there is an odd provision in the bill, taken from the Newman 2012 version, by which the Registrar of Births, Deaths and Marriages decides, based on statutory declarations, as to whether or not the relationship between the parties has ended. I called for this to be decided by a court. In the 2011 Bligh version, this was a District Court judge. When questioned by Jim Madden MP, I said that I was fine for this to be a magistrate. I just saw that having the issue of the end of the relationship decided by a  judge was a much more open process, to which evidence could be gathered, and that the appeal process was in my view more accountable than going through the Queensland Civil and Administration Tribunal. No criticism of QCAT- but the decision to end a relationship in my view should be an open one in a court of law, before a judicial officer, not by a bureaucrat, who does not have the power to gather or consider evidence in an open, transparent way.
  3. that the regulations should recognise civil partnerships in non-Australian jurisdictions, such as the Tasmanian laws do with New Zealand and the Canadian provinces.
Chair Mark Furner MP took me to the submission of the Society of Notaries and questioned whether there might be confusion, because the people wh will officiate at the ceremonies will be called notaries. I said that I could understand the potential for confusion, and that may be some other title might be used (just not celebrant as that is designated under the Marriage Act).

Sixteen of the 18 submissions were in favour of the changes, including the Anglican Church, the Queensland Council for Civil Liberties, the LGBTI Legal Service and the Anti-Discrimination Commission of Queensland. Commissioner Kevin Cocks spoke positively of the proposed change, and the need to remove discrimination. No surprise that the Australian Christian Lobby and Family Voice Australia were dead against.

The Committee is due to report in a couple of weeks.

Tour of Fertility Center of Las Vegas' labs


Last year I had the privilege of meeting prominent US fertility doctors Dr Bruce Shapiro and Dr Said Daneshmand from Fertility Center of Las Vegas. I first met Dr Shapiro when I saw him present about the perils of implanting more than one embryo into a surrogate, due to the risks of twinning, which in turn led to a high risk of complications, premature births, increased cost and risk to the babies and the life of the surrogate.

Subsequently I met Dr Daneshmand when I attended the American Society for Reproductive Medicine conference, where Dr Daneshmand was presenting.

Last year, Dr Daneshmand and I presented about surrogacy in the US, along with psychologist Dr Kim Bergman from Growing Generations surrogacy agency, at seminars in Brisbane, Sydney and Melbourne. One of the questions that I am always asked is how often the surrogate gets pregnant on the first cycle. My response is that I am a lawyer, not a doctor, but when you mix medicine and techniques designed to get infertile women pregnant with a fertile woman, a surrogate, there are very good odds for the surrogate to get pregnant on the first IVF cycle.

Dr Daneshmand was able to be more precise. He said that at his clinic  the surrogate was pregnant 87% of the time on the first cycle. The obvious question was why the surrogate was not pregnant the other 13% of the time. His answer was clear- usually the problem was not the surrogate- typically it was when the intended parents used their egg and sperm and there was an undiagnosed problem. This did not occur when donor eggs are used, because donor eggs are subject to rigorous screening.

The form of screening of which Dr Daneshmand is a clear proponent is pre-genetic screening or PGS. In Australia we call it pre-genetic diagnosis or PGD. PGD has not been available in Australia except for medical reasons. Doctors are forbidden from using PGD here otherwise, because it enables doctors (and therefore intended parents) to find out the gender of the embryo. Australians instead have been going to the US to have PGD, and reports indicate that 80% of them are choosing girls. Recently the National Health and Medical Research Council (which sets these licensing conditions) has proposed lifting this ban in Australia.

I have always strived for excellence in my work. I am impressed by those who innovate, and in terms of IVF labs, those who put research at the forefront of their practices. Aside from being nice guys, I have been impressed by Dr Shapiro and Dr Daneshmand's commitment to innovation, excellence and research. 

But I digress. Recently my husband Mitchell and I called in and visited the labs of the Fertility Center of Las Vegas. The pictures speak for themselves.




With business development manager, and our matron of honour, Shivas Price.




 This screen shows that the DNA is of a healthy female.
It isn't an IVF lab without liquid nitrogen!
 The screen shows the complexity of DNA.

With Dr Bruce Shapiro, who was about to operate.

Disclosure:  I stayed in Las Vegas as a guest of the Fertility Center of Las Vegas. Dr Daneshmand was my best man when I married Mitchell. Shiva Price was matron of honour.

I got married!

One month ago I got married to my husband Mitch in Las Vegas. We had a small number of American friends at the ceremony, and about four or five times that watching in the US, Canada and Australia as the wedding was streamed live. It was a non-denominational religious ceremony. Elvis was not present!

Originally we were going to wait until the law changed in Australia to enable us to marry. It hasn't, despite predictions that it might have changed back in August. We had decided to get married in New Zealand, with a special trip there. In October I had to travel to the US to present to the Bar Association of San Francisco seminar on surrogacy and to speak at the AAARTA (American Academy of Assisted Reproductive Technology Attorneys) conference in Chicago. The plan was always to go to Las Vegas to visit the Fertility Center of Las Vegas and our good friends there, Dr Bruce Shapiro, Dr Said Daneshmand and Shiva Price. Then we thought- if we are going to be there anyway, we should take advantage of it and get married there. And we did! With lots of help from our American friends, but especially Shiva Price, Dr Daneshmand and Dr Shapiro.

The day before the wedding we flew in from Chicago. The day after it was back to work duties and flying back home. No honeymoon yet!


With our good friends (best man) Dr Said Daneshmand, Rich Vaughn and Dr Kim Bergman

Monday, 2 November 2015

LGBT Family Law Institute Brisbane meeting is off and running!

I am delighted to announce that following my sending out invitations, lawyers have commenced registering for the inaugural LGBT Family Law Institute meeting in Brisbane in March 2016.

The meeting will be the second ever held outside the United States. The first was in London in May this year. The LGBT Family Law Institute is a joint venture of the LGBT Bar Association of the US (which in turn is an affiliate of the American Bar Association) and of the (US) National Center for Lesbian Rights. The NCLR has been at the centre of much of the recent litigation in the US that resulted in that country's Supreme Court recognising same sex marriage. The NCLR's expertise int he area is unsurpassed.

The meeting is historic and hopefully will result in a national group (and voice) for family lawyers who represent LGBT clients.

Any family lawyers who wish to attend please either contact me or go through the website. Numbers are limited to 30.

Joining the Queensland Law Society's Equal Opportunity in the LawCommittee

In October I was invited to and accepted membership of the Queensland Law Society's diversity committee- the Equal Opportunities in the Law Committee. I am pictured with the other new member, Linda Ryle, President of the Indigenous Lawyers Association of Queensland.

Being a member of course is a great responsibility, and hopefully will make the law, and the practise of law fairer.

Queensland:Back to the Future for Civil Partnerships

Tomorrow when seemingly everyone else will be feeling particularly merry when the Cup is run, I will be giving evidence to Parliament.

The purpose is to scrutinise a Bill put forward by the Palaszczuk Government to take civil partnership legislation back to the Bligh model of 2011.

In the dying days of an almost unbroken 20 years of Labor rule in Queensland, Anna Bligh pushed through Parliament the Civil Partnerships Bill, which recognised for the first time civil unions or civil partnerships, as they were called. The Bill was opposed by the LNP. Several Labor MP's crossed the floor.

In 2012, the Newman Government , at the urging of the Australian Christian Lobby,pushed through its changes, which allowed the continued recognition of civil partnerships (now called relationships) but removed the ability to have a ceremony. To be fair, the Australian Christian Lobby wanted to abolish all forms of civil partnership.

Move forward to 2015 when the Palaczszuk Government's Bill is scrutinised tomorrow. I for one support the Bill, which reinstates the original 2011 version. As I said back in 2012:

I, for one, am a strong proponent for civil partnerships. We all in society ought to be able to have equality. Our ability to form a relationship with our significant other ought to be able to be recognised in law. Ideally, this would be by marriage. The ability to say to your partner "I love you" witnessed by your friends and families, and be recognised by the State, and by God if you are religious, is a fundamental right in my view. However, the ability to form civil unions or partnerships may also be an option open, if provided by law. Some people, who have the choice, may choose to have their relationships recognised at law, but do not want to be married.

Civil unions or civil partnerships represent a half way measure: the relationship for the first time is recognised at law, but Parliament has not legislated to allow marriage. The ability to recognise a de facto partnership by those partners as a loving relationship is an option for heterosexual couples in several States now, where the experience such as in Victoria is that some heterosexual couples have taken advantage of civil unions legislation. Those couples have made the choice that they want their relationships recognised at law, but do not want to be married.