Index. Copyrighted Material

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1 AA v Registrar of Births Deaths and Marriages and BB 50 abandoned children 121 abortion 23 legally contested 14 refusal to abort pregnancy 127 8, 210 upon discovery of multiple defects 210 Accreditation, Supervision and Regulation of ART clinics, India ACT see Australian Capital Territory adoption 14 of child 180 contracts, pre-planned, Florida 199 expatriate and fostering 175 law in New Jersey model of surrogacy 199 reform for gay couples 10 advertising by third parties, prohibition 58 advertising restrictions of surrogacy African American mothers in the US historical preference as gestational mothers 19 altruistic surrogacy 17 in Australia 100 permission and regulation 131 reasonable expenses 113 American reaction to surrogacy 213 amniocentesis 127 anonymity of donor child s right to know genetic heritage 11 anonymity of egg and sperm donors, India no genetic heritage tracing 171 anti-surrogacy movement from Baby M case sentiment in US 213 ART see Assisted Reproductive Technology Index artificial conception procedures by married couples 205 children born out of wedlock 157 artificial insemination, law of California 208 assisted reproduction, challenge for law Assisted Reproductive Technology (ART) 14, 38, 43, 167 access to, control over 23 clinics, accreditation, supervision, regulation 171, 173 industry 184, 190 legal certainty for surrogacy arrangements 185 medical tourism sector, India 169 single women denied access 22 unregulation of industry 188 Assisted Reproductive Technology (Regulation) Bill 2013 (India) proposals Assisted Reproductive Treatment Act 2008 (Vic) 102 Australian Capital Territory (ACT) 1994 parliamentary debates 74 5 allows singles and same-sex couples 37 Criminal Code 2002 (ACT) 39 legislative provisions (1994) 66 Parentage Act 2004 (ACT) 39 prohibition of commercial surrogacy 116 Substitute Parent Agreement Act 1994 (ACT) 78 replacement by Parentage Act 2004 (ACT) 68 territorial restriction on surrogacy 39 Australia Australian Human Rights Commission 106, 156

2 218 case study citizenship 155 applications, adoption visa 103 Citizenship Act 2007 (Cth) 103, 104, citizenship by descent 179 by conferral 68 Department of Immigration and Citizenship derivation by child through parent 155 national reform proposal Evidence Act 1995 (Australia) 157 extraterritorial surrogacy legislation Family Court Act 1997 (Western Australia) immigration law Department of Immigration and Border Protection 103 extraterritorial criminal laws 66 parentage legislation 63 Sex Discrimination Act 1984 (Australia) 22, 38 surrogacy legislation 2, 33, 34, 42, 59, 60 62, autonomy 53 4 and free choice self-determination of person 28 Baby Cotton case 161 Baby Gammy case (2015) 102 Baby M case (New Jersey) Baby Manji case (India), 2008 Balaz twins case (India) 4, 112, 146 7, Bangladesh 123 best interests of the child lack of definition primary consideration B.H.v Minister for Immigration and Citizenship 155 bilateral agreements between states 140 biological parents, child s right to know 93 4 birth certificates 180 California 93 foreign birth certificate 151 Surrogacy, Law and Human Rights no recognition in Australian law parentage presumption 164 informal recognition of parentage male intended parent, nameable on foreign birth certificate 161 significance of recording accurate parentage 50 birth mother see surrogate Blake & Anor, Australia 160 brokers restrictions on payment 137 Buzzanca v Buzzanca C. Ellison and anor & Karnchanit California commercial surrogacy 79 surrogate industry 10 birth certificate 93 Canada 16 Certification of Independent Legal Advice from legal practitioner 54 child best interests, paramount 50 born to foreign commissioning parents no recognition as Indian nationals 178 born via surrogacy, vulnerability 82 protection as primary norm 26 protection orders 56, 138 trafficking 98, 106 visa where born of surrogacy overseas 67 8 Childlessness Overcome Through Surrogacy (COTS), UK children s rights 81 2 birth registration 86 children s interests paramount 41, 55 children with same-sex parents 159 health concerns, property interests, accidental consanguineous marriage 94 identity, right to know 86 to meaningful relationship with both parents 105 to name and nationality, right to 86, right to know their ancestry 75

3 citizenship 82 citizenship laws, conflicting Germany and India 181 by descent 161, 178 citizenship conferral problems 179 citizenship denial to children citizenship for children 114, 151 comity, doctrine of, parentage recognition 92 3 commercial surrogacy 10, 45 agreements cross-border 79 definition by statement of court 177 encourages exploitation 75 6 fees paid 113 illegal in Queensland 157 in Australia 59 in India in New South Wales 75 in UK 163 in US 124 profiting outsiders 58 prohibited or outlawed 142 prohibition of technical or professional services for surrogate s position common law principles autonomy, self-determination of person 25 compensated surrogacy see also commercial surrogacy criminalisation , , 133, 202, 206 illegal 107 prohibition in Australia 100 conception definition of 34 in context of surrogacy agreement 34 contract terms 126 convention on surrogacy framework for international cooperation 140 Convention on the Elimination of All Forms of Discrimination Against Women 22 Index 219 Convention on the Rights of the Child 1, 3, 41, 82, 83, 149 adoption by UN General Assembly (1989) 83 Committee and State Parties key provisions for surrogacy 84 meaning of parents 93 on sale of children 96 7 Optional Protocol to 97, 116 standards 112 CRC see Convention on the Rights of the Child Crimes Act 1900 (NSW) 38, 69 criminal history checks, for all parties in advance 56 criminal law 82, and assisted reproduction 77 appropriateness 76 7 criminal record screening 138 extraterritorial 65 prosecution of parents 111 criminalisation of surrogacy for single women, same-sex couples 22 Queensland 15 Croft & Dunphy [1933] 72 cross-border assisted reproduction, legislation 66 declaration of parentage from family courts 152 wider reach 158 Declaration of the Rights of the Child, Dennis & Pradchaphet 153, 154 Dignity of birth mother 26 7 of human body 23 of humanity 14 of the child 26 of the person 24 Director of Public Prosecutions in Queensland 77 discrimination against women without children on parental infertility 93 protection of child 85 6 sex, marital status, pregnancy, breastfeeding 22

4 220 DNA reports and testing 164, 177 donor gametes 66 Down s syndrome twin, left by Australian couple 121 Dudley & Chedi 43, 158 egg donor requirements 10 Ellison and anor & Karnchanit 106, 107, , 151, 152, 156 enforcement of law criminalising surrogacy equal protection challenges 212 ethics ethical and legal issues pertaining to surrogacy ethical concerns, India 170, for children s rights, parental rights, citizenship issues 183 of international surrogacy ethnography and surrogacy 187 European Parliament 122 study into surrogacy practices 127 expenses, recovery of 34 exploitation 78, 121 extraterritorial criminal laws 66 difficulty of enforcement 136 geographical nexus for offences 67 9 justifications legislative prohibition on surrogacy in ACT, NSW, Queensland 79 New South Wales 72, 75 offence in Queensland 69 Family Court of Australia application cases referred to Director of Public Prosecutions 70 family law judges, guidance 106 parental responsibility orders 148 parenting orders 105 surrogacy 3 Family Law Act 1975 (Australia) 105, 146 7, 154, applicants for parental responsibility 71 definition of a parent 151 genetic father as legal parent 107 no definition of a parent 149 Family Law Council of Australia 165 Surrogacy, Law and Human Rights Report on Parentage and the Family Law Act 109 fees Indian surrogates US surrogates 170 feminism 2, 15, 24 against surrogacy 27 evaluative extremes 213 feminists and Baby M case, New Jersey 196 objectification of women 29 social construction of women as mothers 29 treatment of surrogacy in US fertility clinics India, 170 Thailand 145 fertility tourism see also reproductive tourism 39, 114, 133 financial aspects of surrogacy as impediment to access to surrogacy gain for surrogate mothers 25 as impediment to travel for surrogacy 12 inducement 124 interests of lawyers, brokers 136 motive of surrogate 19, 172 Findlay & anor v Punyawong 71 foetal reduction 138 gamete donation 14 gay parenting see same-sex parents 9 gender equality 214 gender stereotypes 20 genetic counselling 202 genetic fingerprinting, biological connection 180 genetic information, child s right to know 148 genetic material donated 37 genetic origin information for donorconceived children 53 genetic parents of child 56, 93 Germany 181 gestational surrogacy 47 8, 132, compensated surrogacy 98 non-genetic surrogacy 57 preference in US 200

5 proposed national model 57 reproductive technology in India 168 surrogate s lack of genetic connection to child Google Baby 2009 documentary 94 Growing Generations, US surrogacy agency 10 Guatemala 122 Hague Convention on Private International Law 146, 149 Hague Convention on Intercountry Adoption 182 Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption 140 harmonisation of laws 42 healthcare facilities in US 11 homophobia 87 human dignity, human rights, surrogacy human rights 134, 165 human rights-based approach 18 of intended parents 3 Human Rights Council, 2014 Resolution on Protection of the Family 88 human trafficking 3, 115, 122, immigration 82 and citizenship Independent Children s Lawyer 106, 156, 158 independent review of proposed agreement 36 India clinics, 2005 Guidelines Commission for the Protection of Child Rights Act 2005 (New Delhi) 176 Evidence Act exploitation, weak argument against surrogacy 188 Guardians and Wards Act human rights issues 170 illiterate surrogates, no advice on contract Index 221 laws governing surrogacy in India major destination for cross-border commercial surrogacy 189 Ministry of Health and Family Welfare 168, 173, 184 modern surrogacy practice part of Indian culture 167 public health interests 170 Registration of Births and Deaths Act same-sex couples excluded from surrogacy in India 187 social impact of surrogacy in India social prejudices, stigma associated with fertility 175 surrogates 11 secret arrangements from wider family 172 surrogacy case 56 7 visa regulations, prevention of samesex couples for surrogacy 104 Indian Citizenship Act 1955 one or both parents to be Indian 181 Indian citizenship denial, to non-indian parents 189 Indian Contract Act 1872 all agreements are contracts 176 Indian Council for Medical Research, 168, 173 Statement of Specific Principles for Assisted Reproduction Technologies 175 Indian mythology 167 history of surrogacy arrangements 4 Indian surrogate mother gamete of Indian egg donor 182 insurance infertility treatment insurance in US to cover health or risk of death 138, 186 for surrogacy intended parent 11, 209 counselling to determine fit and proper persons 55 legal recognition

6 222 marriage necessary 203 inter-country adoption 182 International Covenant on Economic, Social and Cultural Rights, 1 international human rights law 147 international regulation international surrogacy 183 in vitro fertilisation (IVF) 9, 10, 11, 14, 167, 185 Israel Halachic law, gestational surrogacy only 57 Johnson and Moschetta 208 Johnson and anor & Chompunut 39 Johnson v Calvert (1993) Kant, Immanuel 2 analysis of dignity 27 formula for humanity 25 honour of humans as ends in themselves 28 moral perspective 2, 15 moral premise on humans 24 law and medical ethics 82 law reform of surrogacy, recommendations 109 law reform on commercial surrogacy in Australia 45 6 legal advice legal requirements 137 national model, proposed 54 verbal and written 54 legal counselling 202 legal paternalism 74 legal status of child nationality, immigration status, parental responsibility 146 lesbian couples 37 8 liberal conception of surrogacy 24 Locke, John 24 Lowe & Barry and anor, LWV & another v LMH Queensland Children s Court 34 marital status eligibility 37 Mason & Mason and anor 152 3, Surrogacy, Law and Human Rights McBain case, (2000) 22 medical tourism 132; see also fertility tourism Mill, John Stuart against subjugation of women 25 constraining power against citizen 24 5 on individual liberty 58 on liberty of private citizens 45 Mobil Oil Australia Pty Ltd v Victoria 72 motherhood cultural expectation of womanhood 20 denigration 170 surrogacy, expression of woman s autonomy 21 Myanmar 123 National Academy of Medical Sciences 173 National Conference of Commissioners on Uniform State Laws 205 National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India 4 national laws, disparity in 183 national model, proposed conditions precedent to surrogacy agreement 56 legislative status quo for counselling 55 surrogacy agreements in writing 53 nationality, acquisition and preservation 91 3 problems for child of overseas surrogacy arrangements 92 New South Wales geographical nexus for offences and states 69 guiding principle 101 legislation on claims for payment 34 Surrogacy Act 2010 (NSW) 69 New York State Task Force on Life and the Law 1988 on valuing of human life 116 non-discrimination 82, 84-88, 150 North American Surrogacy Center 49 Northern Territory 101 objectification of women s bodies 28

7 Optional Protocol to Convention on Rights of the Child 97, 116 parentage 14, 33, 40 42, 148, 212 determination 114 importance of limping, one parent not recognised 147 of children, dignity of child 26 orders 67, 101 presumptions Family Law Act 1975 (Cth) 164 recognition in surrogacy arrangements in Australia regulation testing, Family Law Regulations 1984 (Cth) 159 transfer 41 parental legislation across Australia 33 orders 100, 162 recognition seeking relations 91 5 responsibility of child 152 granted to surrogate 50 responsibility orders from family courts 152 rights and responsibilities, 2005 Guidelines same-sex 2 passport and visa 178 paternity determination laws 213 Patient Review Panel, Victoria 56 7, 101, 102 assessment criteria for child s welfare 36 payments 98 baby as property 26 for surrogacy agreement of reasonable expenses 137 more than reasonable expenses 162 Pearce v. South Australian Health Commission 38 Permanent Bureau of The Hague Conference on use of services abroad 132 on Private International Law 139, 183 Index 223 philosophical challenge, right not to be born 89 politicisation of women s bodies subject to control by law 23 pre-birth declarations pregnancy termination see also abortion 127 presumptive-parentage paradigm 209 procreative liberty prohibition on surrogacy Proposal for a National Model to Harmonise Regulation of Surrogacy Standing Committee of Attorneys- General (SCAG) (Aust) 42 psychological counselling 202 Queensland legislation on agreement prior to conception 34 legislative provisions (1988/2010) 66 liberty of consenting adults 16 Surrogate Parenthood Act 1988 (Qld) 69 re Baby M case, New Jersey 195 re Evelyn, 1998 (Aust) 57 re L (A Child) (Parental Order: Foreign Surrogacy) 162 re Michael, Family Law Act 164 re X & Y (Foreign Surrogacy) 162 travel to Ukraine for commercial surrogacy regulation by the state 14 commercial surrogacy 141 international and domestic 115 control of women s bodies 23 reproductive autonomy, abortion 23 surrogacy domestic regulation 133 reproduction and freedom reproductive rights Reproductive Technology Council, Western Australia 36, 56 7 reproductive tourism 5, 39, 78; see also fertility tourism and medical tourism

8 224 Reproductive Treatment Act 2008 (Vic) 101 risks for surrogate physical, emotional, economic 28 Rusken and Jenner (2009) 99 sale of children 82, 95 9 same-sex couples ineligible for surrogacy in South Australia 38 social need to undertake surrogacy 36, 51 2 same-sex parents 87 effect on children107 8 male couples, using one partner s sperm Sex Discrimination Act 1984 (Australia) 22 sex selection 78 social infertility 87 Spain 91 2 sperm donor carrying rare genetic condition 1, 37 record keeping 94 Standing Committee of Attorneys General (SCAG) (Aust) Proposal 44 5 statelessness potential for child 146 status of children 146 Status of Children Act 109, 165 structural inequality of women surrogacy altruistic, in Australia 18 19, 47 American style arrangements, complications 93 bans challenge for law 13 compensated 95 6 eligibility of parties for 33, 35 8 experiences, positive, 21 2 extra-territoriality human rights 1 7 international perspective 3 justification 21 legalising in US 198 means of starting family 26 personal perspective 9 12 potentially harmful 58 regulation in US 4 Surrogacy, Law and Human Rights Surrogacy Act 2010 (NSW) 160 Surrogacy Act 2010 (Qld) 22, 35 surrogacy agreement 33, 34, 53, 51, surrogate compensation, commercial arrangement 6 illiterate 186 legal and ethical considerations non-english speaking 186 poverty, unequal bargaining power 129 preferences for giving birth, surrogate s right 53 presumption surrogate is legal parent 51 refusal to relinquish child 99 surrogate s perspective surrogate s rights, subordination to foetus 24 visitation rights of surrogate re Baby M case 195 vulnerability to exploitation 124 women, forbidden from being a surrogate 12 Surrogate Parenthood Act 1988 (Qld) 70, 74 Tasmania advertising of surrogacy agreements, prohibition 40 only pre-conception agreements 34 Thailand altruistic surrogacy allowed for Thai nationals 129 arrests for illegal surrogacy ring 123 assisted reproduction clinics 66 Australian usage of Thai reproductive services 66 birth mother has parental rights if parents are unmarried 154 prohibition of commercial surrogacy 129 trafficking of women 123 traditional surrogacy 198, 210 bans in US 200 case 208

9 transfer of parentage in surrogacy arrangements 34, 165 Turkey legislation against third-party reproductive assistance overseas 66 Ukraine 92 United Kingdom Human Fertilisation and Embryology Act 2008 (UK) 162 judicial discretion to grant parental orders 148 no constitutional recognition of personal rights 16 public policy and child welfare Surrogacy Agreements Act Warnock Committee (1984) re sale of children 116 Warnock Report (UK) 51 Uniform Parentage Act 2000 (UK) 194, 200, 201, 203, 204, 205 Uniform Status of Children of Assisted Conception Act (UK) Union Steamship Company of Australia Pty Ltd v King 73 Index 225 United States Constitution, Tenth Amendment 190 constitutional recognition of personal rights 16 cross-border issues 210 history surrogacy regulation Universal Declaration of Human Rights 1 dignity principle 25 vaginal ultra-sound tests 127 Victoria surrogacy agreements applicants to be assessed by Patient Review Panel 36 Victorian Law Reform Commission 56 on donor-conceived children (2007) 53 Western Australia eligibility limited to single women, heterosexual couples 37 Wilkie and anor & Mirkja 104 Yamada v Union of India (2008) 177