GREEN-WILSON & BISHOP THE RECENT LEAP FORWARD IN COMMERCIAL SURROGACY JURISPRUDENCE IN AUSTRALIA

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1 GREEN-WILSON & BISHOP THE RECENT LEAP FORWARD IN COMMERCIAL SURROGACY JURISPRUDENCE IN AUSTRALIA By Paul Boers Accredited Specialist (Family Law)/ Reproductive Lawyer Level 13, 200 Queen St, Melbourne VIC 3000 T: F: E: W:

2 GREEN-WILSON & BISHOP THE RECENT LEAP FORWARD IN COMMERCIAL SURROGACY JURISPRUDENCE IN AUSTRALIA Surrogacy has been around for as long as anyone can remember, but its utilisation and profile as a means of starting a family has increased exponentially over the last 10 years or so. I make this observation through my experience as a family lawyer volunteering at the Inner City Legal Centre in Sydney in its gay & lesbian advice service, and in private practice in Sydney. That experience has carried through to my volunteer work at the Fitzroy Legal Service in its LGBTIQ advice service (where I was influential in its establishment), and now to my private practice in Melbourne Surrogacy law in Australia is generally dealt with at a State and Territory level in conjunction with various sections of the Family Law Act dealing with presumptions of parentage. Under State and Territory law, it is illegal for any resident of Australia to enter into a commercial surrogacy arrangement within Australia, except for residents of the Northern Territory, as its parliament has not yet enacted surrogacy legislation. In addition, surrogacy legislation enacted in Queensland 1, New South Wales 2 and the Australian Capital Territory 3 have extended the criminality of its residents entering into a commercial surrogacy arrangement extra-territorially. It is not illegal for residents of the rest of the Australian States and the Northern Territory to enter into overseas commercial surrogacy arrangements. The issue for lawyers like me to advise surrogacy clients if of parentage. Under s.60h Family Law Act, the birth mother, and if married or in a de facto relationship at the time of conception, her partner are both presumed the parents of the child. This left the intended parents without the status to enable them to function as parents, or to exercise parental responsibility 4. The best we could do for intended parents previously was to seek parenting orders conferring parental responsibility upon them 5. It did not make them legal parents, but it was the next best thing. That is, until now. In Green-Wilson & Bishop 6, I engineered a round about process to enable intended parents in a commercial arrangement to become legal parents, just like their counterparts in altruistic arrangements, depending on the State or Territory of Australia they are from. This is the leap forward in commercial surrogacy jurisprudence. 1 S.54 Surrogacy Act QLD (2010) 2 S.11(1) Surrogacy Act NSW (2010) in conjunction with S.10C Crimes Act NSW 3 S.45 Parentage Act ACT in conjunction with S.64(2) Criminal Code ACT 4 See ss.61b & 61C Family Law Act 5 s.61d Family Law Act 6 [2014] FamCA

3 The case of Green-Wilson & Bishop involved an overseas commercial surrogacy arrangement. I acted for the intended parents in that case, who I will refer to as GW1 (the sperm donor dad) and GW2 (the other dad). I will refer to the surrogate mother as B1 and her husband as B2. Like so many other intended parents I have either acted for or advised, GW1 and GW2 were, until they decided to start a family through surrogacy, residents of New South Wales. In order to escape the possibility of any absurd prosecution for trying to become parents, GW1 and GW2 decided to move to Melbourne. The surrogacy arrangement in this case took place in India where GW1 and GW2 engaged a commercial surrogacy agent in New Delhi. In September 2012 GW1 and GW2 obtained a donor egg from an anonymous egg donor via an organization known as New Life in the Ukraine. On 16 November 2012 they entered into a written gestational surrogacy agreement with B1 and B2. It provided B1 will never claim any right nor make and claim over and in respect of the Child and otherwise that she will never take any recourse to any legal proceeding claiming custody of the child. Upon the signing of the surrogacy agreement, an embryo was created using a sperm donation from GW1 and the donor egg sourced from New Life in the Ukraine. On 19 November 2012 the embryo was successfully transferred to B1. On 6 August 2013 B1 gave birth to the child, who I will refer to as A. DNA testing was done via a DNA testing laboratory in Queensland, which confirmed GW1 to be the biological father of A. On 8 August 2013, A was issued an Indian birth certificate naming GW1 as the father, and the mother as nil. On 12 August 2013 GW1 applied for Australian Citizenship by Descent for A and approval was granted on 15 August An emergency passport was issued for A on 16 August 2013 and on 21 August 2013 GW1 and GW2 arrived back home in Melbourne with A. As far as I understood, at the time this surrogacy arrangement was entered into, the written agreement was unenforceable as commercial surrogacy in India was unregulated. GW1 and GW2 came to me a few months or so in advance of A s birth. I advised them that neither one of them will be presumed a parent of their child. From my previous experience, I advised that GW1 would be named on A s birth certificate as her father. Further, I advised that S.69R of the Family Law Act provides for a presumption of parentage for persons named as parents on birth certificates issued from a State or Territory of Australia, and of any prescribed overseas 3

4 jurisdiction. However, as there are no prescribed overseas jurisdictions for the purpose of S.69R Family Law Act, being named on A s birth certificate would not make GW1 a legal parent of their child. I also advised GW1 and GW2 of the recent commercial surrogacy case of Ellison & Anor & Karnchanit 7, wherein at paragraphs 135 to 139, Justice Ryan set out Best Practice Principles to be followed in commercial surrogacy cases. Those recommendations are set out as follows: Affidavit evidence of the applicant(s) and the birth mother comprising: a their personal circumstances, in particular the circumstances at the time the procedure took place; b their circumstances leading up to the surrogacy agreement and of the procedure itself; c the circumstances after the birth of the child and subsequent arrangements for the care of the child. 136 Independent evidence regarding the identification of the child including: a. the surrogacy contract/agreement entered into between the persons seeking the parenting orders and the clinic and/or surrogate mother; b. a certified copy of the child s birth certificate, and, if not in English, a translation accompanied by an affidavit of the person making the translation verifying that it is a correct translation and setting out the translator s full name, address and qualifications; i parentage testing in accordance with the Regulations to ascertain whether that the child is the biological child of the person/s seeking the parenting orders; a evidence of Australian citizenship of the child if citizenship has been granted. 137 Independent evidence with respect to the surrogate birth mother. This may be obtained by a family consultant or an independent lawyer, including: a confirmation that legal advice and counselling were provided to the surrogate mother prior to entering into the surrogacy arrangement; b confirmation that the surrogacy arrangement was entered into before the child was conceived; c confirmation that the surrogacy arrangement was made with the informed consent of the surrogate mother; d evidence after the birth of the child of the surrogate mother s views about the orders sought and what relationship, if any, she proposes with the child; e if the child has been granted a visa to enter Australia, evidence of participation by the surrogate mother in an interview with immigration officials prior to the grant of the visa, and the views expressed by her during this interview. 7 [2012] FamCA 602 4

5 138. The preparation of a Family Report which addresses: a. the nature of the child s relationship with the persons seeking parenting orders; b. the effect on the child of changing their circumstances; c. an assessment of the persons seeking the parenting orders capacity and commitment to the long-term welfare of the child; d. the persons seeking the parenting orders capacity to promote the child s connection to their country of birth s culture including but not limited to their birth mother; e. advice in relation to issues which may arise concerning the child s identity and how those issues are best managed; f. the views of the birth mother, in particular her consent to the proposed parenting orders, and other matters with respect to the birth mother referred to above. 139 Other evidence including: a. evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to surrogacy arrangements; evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to the rights of the birth mother, and if applicable, of her husband or de facto partner. With respect, in my view the best practice principles set out in Ellison are somewhat onerous and will not be possible to obtain in some cases. In Green-Wilson & Bishop, in advance of the birth of the child, with the assistance of the surrogacy agent in New Delhi, we obtained a statement from B1 and B2 as to their circumstances prior to entering into the surrogacy arrangement, during the pregnancy, and what they would be after the birth. This enabled me to draft their Affidavits in advance of the birth and to have them translated into Hindi. I also prepared draft parenting orders in advance of the birth, leaving the name and date of birth of the child blank. The parenting orders provided: - 1. That GW1 and GW2 have equal shared parental responsibility in relation to the child; 2. The child live with GW1 and GW2. The electronic version of the draft parenting orders were ed to GW1 and GW2. Upon the birth of the child they were instructed to insert the name and date of birth of the child, and to have the orders translated into Hindi. The surrogacy agent in India was able to assist with arranging for the translation. B1 and B2 signed their Affidavits, in both Hindi and English, as well as the completed parenting orders, after the birth of A. After GW1 and GW2 returned to Melbourne, an Initiating Application was filed in the Family Court along with Affidavits sworn by both men addressing as much of the recommended evidence set out in Ellison as we were able to present. Their 5

6 evidence also addressed any relevant S.60CC factors. The Court documents were then sent to the surrogacy agent in New Delhi, who arranged for them to be translated into Hindi and for the service of both the English and Hindi versions of the Court documents upon B1 and B2. I arranged for an Affidavit of Service to be sworn by the person who served all of the Court documents and an Affidavit of Translation of the person who translated them. Prior to listing the matter for hearing, it was listed for mention before Justice Cronin. At the mention, I submitted to Justice Cronin that as in Ellison and Justice Ryan s recommendations as to evidence and procedure, he would probably want to Order the appointment of an Independent Children s Lawyer and a family report. He asked me Why would I want to do that? or words to that effect. A family report was not going to tell the Court anything the parties evidence did not already say, nor was an Independent Children s Lawyer necessary in his view. And so he listed the matter for hearing. Prior to the hearing of the matter, I had a Skype call with a surrogacy agent in Delhi. The purpose of this call, and similar Skype calls I have had with surrogacy agents in Mexico, was to introduce myself and establish a business relationship with them, as I would be relying upon their assistance in order for me to be able to logistically carry out the Family Court s best practice principles, or as much of it as we could. During my Skype call with the surrogacy agent in India, she told me she had been to the Surrogacy Australia Conference in Melbourne, where she spoke to several intended parents who were going to pursue step-parent adoption. I told her they must be mistaken in their description of applying for parenting orders conferring parental responsibility. Subsequently I gave some thought to step-parent adoption. For that to occur one of the intended parents needs to be a legal parent. I then gave some consideration to a basis for seeking a declaration of parentage under S.69VA Family Law Act. In advance of the hearing of Green-Wilson & Bishop, which was to be heard by Justice Johns, I prepared a Minute of Order sought for the hearing, together with an Outline of Case setting out my submissions to the Court. The minute of Order sought provided: - 1. That pursuant to s69va of the Family Law Act it is declared that GW1 is a parent, namely the father of the child A; 2. That GW1 and GW2 have equal shared responsibility for the care welfare and development of the child. 3. That the child live with GW1 and GW2. At the hearing of the matter, Justice Johns asked if B1 and B2 were given notice of the amended Orders sought, and I advised they had not, as she suspected. She 6

7 suggested that if she were to grant the amended Orders sought, it could be on the basis that a copy of the Orders in English and Hindi be served on B1 and B2, and that they have leave to make any application in respect of the declaration of parentage within 60 days of being served with a copy of the Orders. It was submitted to Her Honour that to grant the declaration of parentage would open it up for intended parents in commercial surrogacy cases to seek a stepparent adoption, and that to formalize the parent/child relationship can only be seen as being in the best interests of the child. Her Honour granted the declaration of parentage under s.69va Family Law Act. In her judgment, Justice johns considered whether the presumption of parentage provided in S.60HB Family Law Act applies in this case. S.60HB provides as follows: - 60HB Children born under surrogacy arrangements (1) If a court has made an order under a prescribed law of a State or Territory to the effect that: (a) a child is the child of one or more persons; or (b) each of one or more persons is a parent of a child; then, for the purposes of this Act, the child is the child of each of those persons. (2) In this section: this Act includes: (a) the standard Rules of Court; and (b) the related Federal Circuit Court Rules. S.60HB provides for a presumption of parentage when a Parentage Order is made. This is an Order made in a State Civil court, which takes the parentage from the surrogate mother and her married or de facto partner, and confers it upon the intended parents. Regulation 12CAA of the Family Law Regulations set out the prescribed laws for the purpose of S.60HB. In Victoria, section 22 of the Status of Children Act is a prescribed law for the purposes of s.60hb. One of the requirements to obtain a parentage order under s.22 Status of Children Act, as provided for in s.20 Status of Children Act, is that the child must have been conceived in Victoria. As this case involved an international surrogacy arrangement, it could not invoke s.22 Status of Children Act, and therefore no presumption of parentage under S.60HB Family Law Act could apply. S.69R Family Law Act provides for a presumption of parentage if a person is names as a parent on a birth certificate of a State or Territory of Australia or a prescribed overseas jurisdiction. There are no prescribed overseas jurisdictions for the purpose of S.69R Family Law Act. Therefore any foreign birth certificates naming either or both intended parents as parents does not make them a legal parent of the child, and, strictly speaking, the intended parents ought to seek 7

8 parenting orders giving them parental responsibility, and a declaration of parentage where possible. What I have found in practice is where both intended parents are named on the birth certificate, they usually do not bother seeking parenting orders conferring parental responsibility, as they take the attitude the birth certificate is good enough for them. Most lay persons would not know otherwise, but the correct view is that if both intended parents in a surrogacy arrangement are named on a foreign birth certificate, they are not legal parents nor are they able to legally exercise parental responsibility. In circumstances where neither State nor Commonwealth legislation makes provision for the determination of parentage in commercial surrogacy cases, and where registration of GW1 on an Indian birth certificate is not determinative of the issue, Her Honour found it was in those circumstances where GW1 and GW2 sought a declaration of parentage under S.69VA Family Law Act. Her Honour noted that in the case of Mason and Mason 8, Justice Ryan considered such an application. In that case Justice Ryan determined it appeared Parliament intended that parentage of children born in surrogacy arrangements be determined with reference to ss.60h and 60HB rater than general parentage provisions under Part VII of the Family Law Act. However, Justice Ryan in Mason was dealing with an overseas commercial surrogacy arrangement involving intended parents from New South Wales. Justice Johns found that the Surrogacy Act 2010 (NSW) and the Status of Children Act (NSW) prohibit commercial surrogacy arrangements being entered into by NSW residents, whether in Australia or overseas. Therefore the New South Wales Legislation effectively covers the field with respect to children born of surrogacy arrangements. In Victoria, there is no such prohibition of its residents entering into overseas commercial surrogacy arrangements, and as such the Victorian legislation does not cover the field insofar as surrogacy is concerned. Her Honour was satisfied that in circumstances where Victorian legislation is silent with respect to the determination of parentage of children born of an overseas commercial surrogacy arrangement, it was appropriate to make a declaration of parentage with respect to a child born of such a procedure now living in Victoria. As DNA evidence found GW1 was 99.99% positive of him being the biological father of A, it was appropriate and in A s best interests to make the declaration of parentage. Surrogacy legislation in Queensland and the Australian Capital Territory also prohibit its residents from entering into overseas commercial arrangements. It therefore seems that legislation in Queensland and the Australian Capital Territory also covers the field insofar as surrogacy is concerned, and therefore a declaration of parentage under S.69VA Family Law Act would not be available to intended parents resident in those places. 8 [2013] FamCA 424 8

9 It would therefore appear a declaration under S.69VA would be available to intended parents who have entered into overseas commercial surrogacy arrangements who are resident in Victoria, Tasmania, South Australia, Western Australia and the Northern Territory. Once the Declaration of Parentage is obtained for one or both intended parents, leave can be sought under S.60G to apply for a step-parent adoption. Where possible, I would recommend in the Initiating Application and the Consent Order that the following Orders be sought: - 1. That pursuant to S.69VA of the Family Law Act, it is declared that IP is a parent, namely the father/mother/both of the child [named] born [date of birth]; 2. That [both IP s] have equal shared parental responsibility for the care welfare and development of the child; 3. That the child live with the IP s; 4. That pursuant to S.60G Family Law Act, leave be granted to the [nonbiological IP] to apply for a step-parent adoption. Note that there will be cases where intended parents are an opposite sex couple and each provide the DNA for their child born of a commercial surrogacy arrangement, wherein the intended mother is unable to carry the child to full term for medical reasons. In such a case, I would recommend both intended parents seek a declaration of parentage. Where only one intended parent is named on a foreign birth certificate following an overseas commercial surrogacy arrangement, then my recommendation is to follow the two-stage route to parentage, subject of course to the intended parents being resident in a State or Territory of Australia where this is possible. Stage 1 is the Declaration of Parentage and other parenting orders including leave for step-parent adoption in the Family Court. Stage 2 is the adoption proceedings in a State Civil Court. I advise clients going through the Stage 1 process in the Family Court to budget around $10, to $15, for that process. As for the likely costs of an adoption proceeding, I advise clients to budget $10, The irony for the intended parents in Green-Wilson & Bishop is that if they wish to pursue a step-parent adoption now, they will need to move back to New South Wales. Fortunately the Victorian government is looking to allow same sex adoption. This is, however, not guaranteed as there are organisations that purport to be family focused, but are nothing more than anti-gay and will oppose same sex adoption. As I said to a far right wing religious zealot member of the New South Wales Senate in the NSW Same Sex Adoption Inquiry a number of years ago, it is not the sex or sexuality of the parents which determines a child s development, it is the quality of the parenting. He did not like that answer, so the moderator promptly turned his microphone off thus ending the "debate". 9

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