Q&As

"Post-Baby Gammy- What’s the view?"

Monday August 3, 2015

The below media release is from 2015, has been provided by Stephen Page, Harrington Family Lawyers

Post-Baby Gammy- What’s the view?

Last year I got sucked into the vortex of the Baby Gammy saga. Although I had no involvement in the case, the world’s media beat a path to my door. For one surreal month I was interviewed by seemingly everyone other than CNN and BBC. It is a weird moment to receive a phone call out of the blue from the Bangkok bureau chief of the Wall Street Journal. Or in the one day gets phone calls from SBS Insight, The New York Times and Cosmo. Or to sit in my car outside a family law conference, holding my iPhone perfectly still for 20 minutes while I am on Skype with Fuji TV.

One might have thought that as a result of the Baby Gammy case that there would be an impetus for change in the regulation of surrogacy in Australia. Change hasn’t happened.

No changes, except in SA

At the time of Baby Gammy, both WA and NSW were reviewing their surrogacy laws. In the midst of the saga, the WA Health Minister announced that all was good with WA’s laws and there would be no change. The NSW review seems to have sunk beneath the waves, never to be seen again. SA has made changes, which I will cover below.

At the Commonwealth level, the Attorney-General in the Gillard government, Nicola Roxon charged the Family Law Council to review the definition of parent under the Family Law Act, to try and sync it with State legislation. The report, which said that there were arguments for and against commercial surrogacy, was presented to Attorney-General Senator George Brandis in December 2013,  but not released until August 2014. The report recommended that there be an inquiry as to whether or not there should be commercial surrogacy in Australia.

In March, the House of Representatives Select Committee on Social Policy and Legal Affairs conducted a Roundtable on Surrogacy. The Committee recommended that there be an inquiry into commercial surrogacy, an approach advocated by both Chief Justice Bryant and Chief Judge Pascoe. The Abbott Government is yet to provide a response to the Family Law Council report or to the recommendation of the Committee.

What is surrogacy?

To make a baby by any means requires sperm, egg and uterus. When these three parts are not present, the availability of IVF, egg and sperm donation and surrogacy, accessible easily via Google, means that intended parents look for alternatives.

For many women seeking to become pregnant, the odds are pretty good- if they need to use assisted reproductive treatment, they might have a friend who is a known sperm donor or rely on an anonymous sperm donor obtained through an IVF clinic. If not recruited locally, many sperm donors are based in the US or Europe.

For many couples, IVF hasn’t worked or may never work. The woman may have been born without a uterus, may be a cancer survivor, or her eggs may not work. Egg donation or surrogacy or both may be needed. For single men or gay couples, surrogacy with egg donation is the obvious option.

Egg donation- often forgotten

Australia has two pillars of gamete donation:

  • Donors are not paid other than for out of pocket expenses. This is regulated under the Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s.16 which specifies that payment of valuable consideration other than reasonable expenses incurs a maximum penalty of 15 years. There is mirror legislation in all the States and the ACT.
  • Open identity donation. When the child turns 18, the child can seek out the donor (and with conditions, genetic siblings). This is provided by licensing requirements set out in the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Treatment in Clinical Practice and Research (2007). There are further legislative requirements in some States.

The second pillar allows children to know who they are and where they came from- a vital lesson learnt from the appalling way Australia used to regulate adoption, and consistent with the International Convention on the Rights of the Child. Article 8 specifies that a child has a right to an identity.

Many potential donors have been put off donating out of fear of complications from potential offspring. At times intended parents have had to wait years for egg donors to become available.

Australians have ventured across the globe in a bid to become parents, being the recipients of egg donation in Argentina, Greece, Spain, the Ukraine, India, Thailand, US, Canada, Mexico and Nepal. In many of those countries it is mandatory that egg donation is truly anonymous. The child will never know their genetic mother.

Many of these intended parents have placed themselves at potential peril of prosecution back at home because of State donor laws. While the Commonwealth donor laws only apply to the Commonwealth, some State laws apply overseas.

For example, NSW residents have to run the gauntlet of s.10C of the Crimes Act 1900 (NSW). It provides that any act that would be an offence would still be an offence, regardless of location if part of the elements of the offence occurred in NSW or the effect of the action were to occur in NSW. The simple act of downloading and printing the egg donor agreement from the overseas egg donor agency, signing, scanning and emailing it back might constitute either offer or acceptance of that agreement, which is part of the act of providing valuable consideration, i.e. a contract, triggering the offence. While intended parents worry about the possibility of having committed a surrogacy offence punishable by up to 1 (ACT), 2 (NSW) or 3 (Qld) years jail, they may have inadvertently committed an offence punishable by up to 15 years jail.

Going overseas for surrogacy

As the Baby Gammy saga revealed, Australians have ventured across the globe to undertake surrogacy. Although they cannot now go to Thailand, Australians have gone to the US, Canada, Cyprus, the Ukraine, the Republic of Georgia, (in small numbers now) India, and increasingly, despite the earthquake, to Nepal, and also to Mexico.

In Queensland, NSW and the ACT, there are specific laws banning those ordinarily resident there (or in the case of NSW as an alternative, domiciled) from undergoing commercial surrogacy overseas. Chief Justice Bryant and Chief Judge Pascoe have called for repeal of the laws. No one has been prosecuted. Many more people have undertaken surrogacy overseas than in Australia.

In Western Australia, if the surrogacy arrangement were entered into in that State, then the offence of entering into commercial surrogacy is also committed there, thanks to a combination of the Surrogacy Act 2008 and s.12 of the Criminal Code. If not carefully considered, an offence might be committed in South Australia, because of the effect of the Criminal Law Consolidation Act 1935.

The Australian surrogacy landscape

Throughout Australia, non-commercial surrogacy, called altruistic surrogacy, occurs, except in the NT. Surrogacy happens where the surrogate is not genetically the mother (gestational surrogacy) and less commonly when the surrogate is also the mother (traditional surrogacy). Where traditional surrogacy is not banned, clinics generally disapprove of the practice, fearful of a repeat of a Family Court disaster, such as Re Evelyn [1998] FamCA 2378; [1998] FamCA 55.

The strength of our surrogacy systems is that we have stringent counselling and psychological screening, independent legal advice before people enter into surrogacy arrangements, and judicial oversight, with a requirement that the best interests of the child are the paramount concern. Applications for parentage orders must be made within 6 months of birth.

Our weaknesses are obvious: people believe it is all too hard, or not available, so go overseas. A lack of national laws means that we have inconsistent laws and approaches. Intended parents have to negotiate the minefield.

Queensland and NSW have the most flexible regime. Fertility treatment is not required to occur there. It can occur anywhere in the world, at least in theory. The laws are non-discriminatory. Surrogates can be single or part of a couple. Intended parents can be gay, lesbian, straight, single or couples. The surrogacy arrangement must be written. Both Queensland and NSW require a post-birth report similar to a family report. NSW mandates relinquishment counselling of the surrogate and her partner. Intended parents need only reside in the State when the order is sought, allowing flexibility for expatriates or for those who travel for their jobs.

The ACT requires fertility treatment to occur only there, and for both the surrogate and the intended parents to be part of a couple. Substitute parents must live in the ACT. A single surrogate is not good enough; nor single substitute parents. A surrogacy arrangement can be oral. No post-birth counselling or assessment is required.

Victoria requires the pre-approval of the Patient Review Panel before surrogacy can commence. The laws are non-discriminatory. All fertility treatment must occur in Victoria. No post-birth counselling or assessment is required, although it can be ordered to take place. The commissioning parents must live in Victoria. If a child is born in Victoria to intended parents interstate, not only do they have to obtain an interstate parentage order, for example from the Supreme Court of NSW, they must also obtain a registration order from the County Court, to show that they had not evaded Victoria’s laws, and demonstrate that the order is in the best interests of the child- a process that offers little benefit, but adds to cost and delay.

Tasmania has a non-discriminatory surrogacy framework, except that, unless excepted by the court, which is involved after fertility treatment and the child is born, all parties must reside in Tasmania. The surrogacy arrangement must be written. Fertility treatment can occur anywhere. No post-birth counselling or assessment is required.

South Australia allows only married and heterosexual de facto couples to access surrogacy. Gay and lesbian couples and singles cannot. The surrogacy arrangement must be written. Fertility treatment must be overseas. Recent changes have removed the requirement for three counsellors before pregnancy- now thankfully there will only be one, with counselling of the surrogate post-birth. The surrogate’s male partner is not required to consent to the order, which disempowers both he and the surrogate (as she can feel pressured by having sole responsibility). Post-birth counselling is now required. If the surrogate is a lesbian, her partner is recognised as a parent, but it is dubious as to whether the partner could be heard on the order application. The commissioning parents must live in SA.

South Australia now also requires commissioning parents going overseas to obtain approval from the Attorney-General for their surrogacy agreement. This is with the aim of preventing another Baby Gammy. If an interstate order has been obtained, and the child born in South Australia, only by a very long and difficult process following the making of the order can the child’s birth register be altered. SA is setting up a surrogacy register, to make it easier to find surrogates.

Western Australia allows married, heterosexual de facto couples, lesbian couples and single women to access surrogacy. Single men and gay couples cannot. Pre-approval from the Reproductive Technology Council is required. Post-birth counselling is not required. The arranged parents must reside in WA.

The NT has no surrogacy laws. While this may lead to the view that in the NT anything goes, surrogacy in the NT cannot be accessed through the only IVF clinic there because the NHMRC Ethical Guidelines prohibit IVF clinics from facilitating commercial surrogacy, the doctors are South Australian registered, and cannot therefore guide gay men to become parents, and the clinic declines to provide altruistic surrogacy, because without laws, the making of a parentage order transferring parentage from the surrogate and her partner to the intended parents is not possible. If the intended parents cannot be recognised as the parents on the child’s birth certificate, what’s the point? Because there are no laws, if an interstate parentage order is made, but the child is born in the NT, the birth register will not be altered.

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