Review of Parentage Laws
To: Family Law Council
31 July 2013
This submission was prepared by Katrina Koniuszko. Queries regarding this submission should be directed to:
Contact person: Katrina Koniuszko
Lawyer, Family Law Section, Legal Policy and Practice Department
Phone:
(03) 9607 9389
Email:
kkoniuszko@liv.asn.au
© Law Institute of Victoria (LIV).
No part of this submission may be reproduced for any purpose without the prior permission of the LIV.
The LIV makes most of its submissions available on its website at www.liv.asn.au
Table of Contents
Introduction
Who We Are………………………………………………………………………….…………….......
What We Do………………………………………………………………………………………........
Executive Summary.……………………………………………………………………..…...…......
Previous Submissions ……………………………………………………………………………….
Background ………………………………………………………………………………………….
Discussion
Terms of Reference
a)
Whether the provisions in Part VII of the Family Law Act 1975 (Cth) that deal with the
parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent
for children …………………………………………………………………………………
b)
Whether there are any amendments that could be made to the Family Law Act 1975 (Cth) that
will clarify the operation, interaction and effect of the relevant provisions ……………………
c)
Whether there are any amendments that should be made to make the Family Law Act 1975
(Cth) more consistent with State and Territory legislation that provides for the legal parentage
of children ……………………………………………………………………………………
d)
Are there any amendments that would assist the family courts to determine the parentage of
children born as a result of assisted reproductive technology, including surrogacy, where the
State and Territory Acts do not apply? ………………………………………………………..
e)
Are there any amendments to the Family Law Act 1975 (Cth) that could be made to assist other
Commonwealth agencies, such as those responsible for immigration, citizenship and
passports, to identify who the parents of a child are for the purposes of Commonwealth laws?
Further Contact ……………………………………………………………………………………...
Annex 1 – LIV Previous Submissions
Assisted Reproductive Technology and Adoption: Should the Current Eligibility Criteria in Victoria be
Changed? (1 July 2004) ………………………………………………………………………………...
Assisted Reproductive Treatment Bill 2008 (Vic) (7 October 2008) …………………………………………
Proposal for a National Model to Harmonise Surrogacy (20 April 2009) ………………………………
Page 2
Introduction
Who We Are
The Law Institute of Victoria (LIV) is the peak body for the Victorian legal profession. The
LIV represents over 17,000 members. Through its Family Law Section, the LIV currently
represents 2,290 members. The Family Law Section is overseen by an Executive
Committee, Children and Youth Issues Sub Committee, Maintenance and Property Sub
Committee, Courts Practice Sub Committee, Junior Family Lawyers Working Group,
Education Working Group, Family Violence Portfolio and Child Support Portfolio. Through
its International Law Section, the LIV currently represents 1,290 members. The
International Law Section is overseen by an Executive Committee. This submission is
based on the experiences of those members following widespread consultation with
above committees, sub committees, working groups, portfolios, relevant sections of
Victoria Legal Aid, individual private practitioners who practice in the Family Court of
Australia and Federal Circuit Court of Australia and other interested stakeholders.
What We Do
The LIV actively seeks to advocate justice for all and influence the development and
implementation of policy and legislative reform through various submissions to State and
Federal Government Ministers and Shadow Ministers, State and Federal Government
Parliamentarians, Commonwealth Public Servants, regulatory bodies, statutory bodies,
policy advisors and State and Federal agencies.
The LIV has a proactive commitment to promoting promoting the rights of children and
young people. We welcome the opportunity to provide comment to the Law Council of
Australia regarding the Family Law Council’s Review of the Parentage Laws. The LIV is
grateful to the Family Law Council for the extension that was granted to 28 June 2013.
Executive Summary
The current law governing the determination of disputes regarding children was enacted
as a result of the Family Law Reform Act 1995 (Cth) (‘Reform Act’). The Reform Act,
which commenced operation on 11 June 1996, has effected the most substantial reforms
to the Family Law Act 1975 (Cth) (‘FLA’) since the inception of the original Act1. Part VII of
the FLA dealing with ‘children’ was repealed and replaced with a new Part VII. Central to
1
HA Finlay, RJ Bailey – Harris and MFA Otlowski, Family Law in Australia (5th edn) (1997) Butterworths, 367.
Page 3
the amendments to Part VII of the FLA was the replacement of the established concepts
of guardianship, custody and access to parental responsibility, parenting plans and
parenting orders. The United Nations Convention on the Rights of the Child 1989 played a
role in shaping the Reform Act2, particularly with regard to the following objectives3:

First and foremost, to effect an attitudinal shift;

Second, to reduce disputes between parents following separation, by removing the
proprietary notion of children inherent in custody battles;

Third, to direct attention to the rights and interests of children rather than the
needs and concerns of their parents in post separation arrangements and
decision making;

Fourth, to encourage parents to enter into private arrangements about the future
care of their children, rather than resorting to a litigated solution;

Fifth, to ensure that contact would not expose people to a risk of violence because
of inconsistent contact orders and family violence orders.
The LIV makes the following key recommendations in our submission:
a)
Consideration should be given to clarifying the application of s 60H in cases of
surrogacy arrangements;
b)
Donor agreements should be made legally binding, providing they comply with
prescribed conditions;
c)
Commercial surrogacy within Australia should be legalised, dealt with at a
Commonwealth level, and regulated;
d)
A transfer of parentage mechanism in commercial surrogacy cases be inserted
into the FLA and s60HB of the FLA be amended to include a presumption of
parentage extending to commercial surrogacy;
e)
The Family Law Regulations be amended so as to prescribe overseas jurisdictions
for the purpose of overseas birth certificates creating a presumption of parentage
under s69R the FLA, or alternatively, the requirement to proscribe overseas
jurisdictions should be removed entirely, and s69R amended so as to read:
Ibid.
H Rhoades, R Graycar and Margaret Harrison, The Family Law Act 1995: Can Changing Legislation Change Legal Culture, Legal
Practice and Community Expectations? (April 1999) in Tom Altobelli, Family Law in Australia: Principles and Practice (2003) Lexis
Nexis Butterworths 237.
2
3
Page 4
1)
If a person's name is entered as a parent of a child in a register of births or
parentage information kept under a law of the Commonwealth or of a State,
Territory, the person is presumed to be a parent of the child.
2)
If a person's name is entered as a parent of a child in a register of births or
parentage information kept under the law of an overseas jurisdiction, the
person is presumed to be a parent of the child.
3)
A person seeking to rely sub-section (2) bears the burden of proving, on
the balance of probabilities, that the entry in the overseas register is valid,
according to the forms and customs of the law of the overseas jurisdiction
in which the register is kept. [#or similar]
Previous Submissions
The LIV has undertaken extensive past advocacy relating to assisted reproductive
technology and surrogacy, highlighted below in our previous submissions. The key
messages from these previous LIV submissions centre on the need to prioritize the best
interests of the child and promote better outcomes for children. They are summarised in
Annex 1.
Background
In June 2012, the Australian Attorney – General’s Department commissioned the Family
Law Council to consider the provisions in Part VII of the FLA that deal with who is
considered to be a parent. The Terms of Reference were as follows:
I.
Whether the provisions in Part VII of the FLA that deal with the parentage of
children lead to outcomes that are appropriate, non-discriminatory and consistent
for children;
II.
Whether there are any amendments that could be made to the FLA that will clarify
the operation, interaction and effect of the relevant provisions;
III.
Whether there are any amendments that should be made to make the FLA more
consistent with State and Territory legislation that provides for the legal parentage
of children;
IV.
Are there any amendments that would assist the family courts to determine the
parentage of children born as a result of assisted reproductive technology,
including surrogacy, where the State and Territory Acts do not apply?
Page 5
V.
Are there any amendments to the FLA that could be made to assist other
Commonwealth agencies, such as those responsible for immigration, citizenship
and passports, to identify who the parents of a child are for the purposes of
Commonwealth laws?
In undertaking the review, the Family Law Council was directed to have regard to the legal
parentage of children as determined by State and Territory laws.
Discussion
For ease of reference, we have maintained the same numbering pattern in the Terms of
Reference.
Terms of Reference
I.
Whether the provisions in Part VII of the Family Law Act 1975
(Cth) that deal with the parentage of children lead to outcomes
that
are
appropriate,
non-discriminatory
and
consistent
for
children
State and Territory Status of Children Legislation
As the result of an attitudinal and policy shift, legislation was enacted in the mid 1970’s
that sought to remove the legal distinction between legitimate and illegitimate children4. In
Victoria, the scope and intent of the legal status of children is expressed in section 3(1) of
the Status of Children Act 1974 (Vic) (‘SCA’) which provides that for all purposes of the
law in Victoria the relationship between every person and his Father and Mother shall be
determined irrespective of whether the Father and Mother are or have been married to
each other, and all other relationships shall be determined accordingly. It is now well
settled that the effect of this key provision which appears in each of the State and Territory
statutes is to make all children of equal status for most purposes of State and Territory
law, irrespective of their parent’s marital status5.
Status of Children Act 1974 (Vic), Status of Children Act 1975 (Tas), Family Relationships Act 1975 (SA), Children (Equality of Status)
Act 1976 (NSW), Status of Children Act 1974 (QLD), Status of Children Act 1978 (NT) and Birth (Equality of Status) Act 1988
(ACT). Western Australia did not follow the same pattern as the other States and Territories but made amendments to the
following statutes: Administration Act 1903 – 1980 s47A, Adoption of Children Act 1896 – 1981 s2, Inheritance (Family and
Dependents Provision) Act 1972 and Wills Act 1970 – 1971.
5 Douglas v Longano (1981) 147 CLR 212.
4
Page 6
Presumptions of Parenthood under the Family Law Act 1975 (Cth)
Each of the State and Territory status of children statutes contain presumptions of
parenthood as well as provisions governing the establishment of parenthood. Prior to the
referral of powers over ex – nuptial children by the States and the Territories to the
Commonwealth in 1987, the provisions of the State and Territory legislation were of
practical significance as the Family Court’s jurisdiction only applied to ‘children of the
marriage’. Since the implementation of the referral of powers, children come within the
FLA which now contains its own provisions dealing with the presumption of parentage. A
single, uniform law applies for the determination of parentage for the purposes of
proceedings under Part VII of the FLA. The presumptions of parentage under the FLA are
contained in subdivision D of Division 12 in Part VII. They comprise of the following:

Presumption of parentage arising from marriage6;

Presumption of paternity arising from cohabitation7;

Presumption of parentage arising from registration of birth8;

Presumption of parentage arising from findings of Courts9; and

Presumption of parentage arising from acknowledgements10.
The above presumptions of parentage are rebuttable by proof on the balance of
probabilities11. The function of parentage presumptions is to assist the Court to determine
questions of parentage in circumstances where there is no direct evidence of parentage
before the Court. In seeking to rebut a presumption arising under the FLA or in
circumstances where no parentage presumption arises, evidence may be sought to
establish, as a matter of fact, who are the parents or more particularly, as is most
frequently the case, who is the father of the child12. The issue of parentage evidence is
dealt with under Subdivision E of Division 12 of Part VII. They comprise of the following:

Evidence of parentage13;

Declarations of parentage14;
Section 69P(1) of the FLA.
Section 69Q of the FLA.
8 Section 69R of the FLA.
9 Section 69S of the FLA.
10 Section 69T of the FLA.
11 Section 69U(1) of the FLA.
12 HA Finlay, RJ Bailey – Harris and MFA Otlowski, Family Law in Australia (5th edn) (1997) Butterworths, 354.
13 Section 69V of the FLA.
6
7
Page 7

Orders for carrying out of parentage testing procedures15;

Orders associated with parentage testing orders16;

Matters related particularly to parentage testing for the purposes of an international
agreement or arrangement17;

Orders directed to persons 18 and over18; and

Orders directed to children under 18 years19.
Presumption of Parenthood under the Status of Children Act 1974 (Vic)
The provisions in the State and Territory legislation continue to have residual operation for
the purposes of proceedings arising under State or Territory law. Section 5 of the SCA
provides that a child born to a woman during her marriage or within ten months after the
marriage has been dissolved by death or otherwise shall, in the absence of evidence to
the contrary, be presumed to be the child of its mother and her husband, or former
husband, as the case may be.
Surrogacy Arrangements
Surrogacy, in the context of human reproduction, involves a situation where a woman
agrees to bear a child on behalf of a couple20. There are two circumstances in which
surrogacy arrangements can be entered into:
1.
Partial surrogacy – Involves the use of the surrogate’s own ovum, fertilised by
either sperm from the commissioning father or from a donor; or
2.
Total surrogacy – involves implantation of an embryo into the surrogate mother
and where the surrogate mother has no genetic connection with the child. Total
surrogacy necessarily involves in vitro fertilisation technology and may involve the
use of gametes from one or even both of the commissioning parents21.
Section 60HB of the FLA provides that if a court has made an order under a prescribed
law of a State or Territory to the effect that a child is the child of one or more persons or
Section 69VA of the FLA.
Section 69W of the FLA.
16 Section 69X of the FLA.
17 Section 69XA of the FLA.
18 Section 69Y of the FLA.
19 Section 69Z of the FLA.
20 HA Finlay, RJ Bailey – Harris and MFA Otlowski, Family Law in Australia (5th edn) (1997) Butterworths, 363.
14
15
21
Ibid.
Page 8
each of one or more persons is a parent of a child then, for the purposes of the FLA, the
child is the child of each of those persons. The LIV is concerned that the application of
section 60HB of the FLA has produced inappropriate and inconsistent results in
determinations of parentage in surrogacy arrangements due to differences in State and
Territory law. In Re Michael (Surrogacy Arrangements) (2009) 41 Fam LR 694, the Family
Court of Australia considered who was a “parent” within the meaning of s60H of the FLA,
after the 2008 amendments under The Family Law Amendment (De Facto Financial
Matters and Other Measures) Act 2008 (Cth). Justice Watts stated that it was the
legislative intent of section 60HB of the FLA to grant the status of parents to the providers
of genetic material in a surrogacy arrangement if that was consistent with an order made
in accordance with State legislation22. However, if the State law did not allow such an
order, it was Parliament's intention that they not be recognised as parents. Consequently,
the provisions of section 60H(1)(d) of the FLA applied, and the child was not to be
considered a child of those who provided the genetic material. Therefore the intending
parents in that case, both of whom provided the genetic material for the child were not,
under s60H(1)(d), found to be the child’s parents. The LIV regards this outcome as
inappropriate, and is concerned to note that the same fact scenario could potentially lead
to a different result in other States of Australia depending on the legislation governing
surrogacy arrangements in that State. There is now considerable uncertainty about the
applicability of section 60H to surrogacy arrangements and decisions regarding
parentage. Phillips FM in Schone & Schone [2013] FMCAfam 1126 (10 October 2012)
summarised the current situation as follows (at [6]):
“In Ellison & Karnchanit (2012) FamCA 602, Ryan J took the view that
s.60H in the Family Law Act 1975 (Cth) which deals with children born by in
vitro fertilisation or assisted reproduction was not the sole section of the
Family Law Act 1975 (Cth) which dealt with determination of parentage in
[surrogacy] cases for the purposes of Australian law. In Gough & Gough (
2012) FamCA 79, Macmillan J took a different view. If I was to proceed with
this case, I would be faced with conflicting decisions by Family Court of
Australia judges.”
The LIV supports amendments made under the Family Law Amendment (De Facto
Financial Matters and Other Measures) Act 2008 (Cth) insofar as they apply to couples
utilising sperm from anonymous donors through fertility clinics.
22
Per Watts J, at [34].
Page 9
We note that the amendments provide an irrebuttable presumption that the donor of
sperm is not the father when that sperm is utilised to benefit a non-fertile couple. This
applies to both heterosexual and homosexual couples. The LIV considers this to be an
appropriate protection of the child's family as the fundamental group unit of society. We
note that such provisions comply with Australia’s international obligations under the
Convention of the Rights of the Child, and that they uphold the child and the parent’s right
to protection under the Status of Children Act 1974 (Vic) and the Charter of Rights and
Responsibilities Act 2006 (Vic).
The LIV is, however, concerned about the effect of section 60HA where all parties
intended a co-parenting relationship with the child. The following scenarios illustrate how
the operation of section 60H has the potential to place some sperm donors in a vulnerable
position:
CASE STUDY 1
After deciding that she wants to have a baby, Mary asks her best friend, John to donate
sperm for the purposes of IVF. John agrees to donate his sperm to Mary on the proviso
that he is allowed to spend regular, consistent and significant time with the child. Mary and
John execute a “Donor Agreement” which outlines their intentions to act as co-parents to
the child. Prior to the birth of the child, Mary and John’s relationship breaks down, and
Mary changes her mind regarding John’s role within the child’s life. John seeks legal
advice, informing his lawyer of the Donor Agreement that he signed with Mary prior to the
breakdown of the relationship. John is devastated to discover that the Donor Agreement
he signed with Mary is not legally binding, and that his only recourse is to make an
application pursuant to s65C(c) of the FLA as a person concerned with the care, welfare
and development of the child.
CASE STUDY 2
After deciding that they want to have a baby, Sophie and Tracey ask their mutual friend,
Christopher to donate sperm for the purposes of IVF. Christopher agrees to donate his
sperm to Sophie and Tracey on the proviso that he have limited time and communication
with the child. Sophie, Tracey and Christopher execute a “Donor Agreement” which
outlines their intentions to act as co-parents to the child. Prior to the birth of the child,
Sophie and Tracey’s relationship with Christopher breaks down, and Sophie and Tracey
Page 10
change their minds regarding Christopher’s role within the child’s life. Christopher seeks
legal advice, informing his lawyer of the Donor Agreement that he signed with Sophie and
Tracey prior to the breakdown of the relationship. Notwithstanding that the Donor
Agreement provided for limited time and communication only, Christopher is devastated to
discover that the Donor Agreement he signed with Sophie and Tracey is not legally
binding, and that his only recourse is to make an application pursuant to s65C(c) of the
FLA as a person concerned with the care, welfare and development of the child.
The LIV considers that the operation of section 60H in co-parenting arrangements is
problematic, as it does not provide a means of ensuring that a co-father will play a role in
the child’s life where this is initially intended and agreed. While it may be the intention of
both the co-parents for the child to spend regular, consistent and significant time with both
parents, the reality is that there is no legal process to protect this intent. To address this
concern, the LIV proposes that section 60H be amended to provide legal recognition of
men who have entered into parenting arrangements in situations where the donor is
known to the couple and there is a clear and express co-parenting agreement entered into
prior to an artificial insemination.
II.
Whether there are any amendments that could be made to the
Family Law Act 1975 (Cth) that will clarify the operation,
interaction and effect of the relevant provisions
The LIV refers to the issues raised in our response to reference term (i) and makes the
following recommendations:
Recommendation 1
Consideration should be given to clarifying the application of s 60H in cases of surrogacy
arrangements.
Recommendation 2
Donor agreements should be made legally binding, providing they comply with prescribed
conditions.
Page 11
III.
Whether there are any amendments that should be made to make
the Family Law Act 1975 (Cth) more consistent with State and
Territory legislation that provides for the legal parentage of
children
Surrogacy Arrangements
In relation to surrogacy, the states and territories have enacted different legislation relating
to transfer of parentage in altruistic surrogacy matters. The LIV considers that it would be
highly desirable if altruistic surrogacy laws were consistent around Australia. The LIV
observes that harmonisation of altruistic surrogacy laws could be achieved if the
states/territories conferred upon the Commonwealth the power to enact laws with respect
to surrogacy, and deal with the transfer of parentage mechanism in the Family Court or
Federal Circuits Court instead of state civil courts. We note that this would not necessarily
require any amendment to s60HB of the FLA.
The LIV opposes the current prohibition on residents of New South Wales, Queensland
and the Australian Capital Territory from entering into overseas commercial surrogacy
arrangements. We query the capacity of the justice system to enforce this prohibition,
noting that where cases are prosecuted, resulting penalties often amount to small fines,
usually with no conviction recorded. It is the experience of our members that many are
willing to risk prosecution under these laws, assessing for themselves that the chances of
this occurring is minor.
In addition to the ineffectiveness of this intended deterrent, the LIV observes that the
criminalisation of overseas commercial surrogacy arrangements gives rise to a conflict of
presumptions of parentage. We note that in commercial surrogacy cases there is no
transfer of parentage mechanism available under Australian law, with the surrogate
mother and her married/de facto partner having a presumption of parentage under s60H
of the FLA. However, in some overseas countries, either or both of the intended parents
may be named on the birth certificate as parents. Section 69R of the FLA stipulates that
being named on a birth certificate of a state or territory of Australia or a prescribed
overseas jurisdiction will give rise to a rebuttable presumption of parentage. However,
there are no prescribed overseas jurisdictions for the purposes of s69R. The LIV is aware
that many people seek to rely on overseas birth certificates as evidence of parentage, as
Page 12
they mistakenly believe that being issued with an overseas birth certificate naming either
or both intended parents as parents gives them a presumption of parentage.
To address these issues, the LIV makes the following recommendations:
Recommendation 3
Commercial surrogacy within Australia should be legalised, dealt with at a Commonwealth
level, and regulated.
Recommendation 4
A transfer of parentage mechanism in commercial surrogacy cases be inserted into the
FLA and s60HB of the FLA be amended to include a presumption of parentage extending
to commercial surrogacy.
Recommendation 5
The Family Law Regulations be amended so as to prescribe overseas jurisdictions for the
purpose of overseas birth certificates creating a presumption of parentage under s69R the
FLA, or alternatively, the requirement to proscribe overseas jurisdictions should be
removed entirely, and s69R amended so as to read:
(1) If a person's name is entered as a parent of a child in a register of births or parentage
information kept under a law of the Commonwealth or of a State, Territory, the person is
presumed to be a parent of the child.
(2) If a person's name is entered as a parent of a child in a register of births or parentage
information kept under the law of an overseas jurisdiction, the person is presumed to be a
parent of the child.
(3) A person seeking to rely sub-section (2) bears the burden of proving, on the balance of
probabilities, that the entry in the overseas register is valid, according to the forms and
customs of the law of the overseas jurisdiction in which the register is kept. [#or similar]
Page 13
IV.
Are there any amendments that would assist the family courts to
determine the parentage of children born as a result of assisted
reproductive technology, including surrogacy, where the State and
Territory Acts do not apply?
The LIV refers to the case of Ellison and Anor & Karnchanit [2012] FamCA 602, in which
the Family Court proposed a process of obtaining parenting orders conferring parental
responsibility in international commercial surrogacy cases as follows:
133.
For all surrogacy cases, the steps set out below should be
followed.
134. An Independent Children’s Lawyer is appointed to represent the
child’s interests.
135. 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;
c) 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;
d) 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;
Page 14
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.
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;
b) 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.
The LIV considers the above process to be overly complex, and is concerned that failure
to comply with this unduly onerous process in commercial surrogacy cases will result in a
refusal by the Court to make orders conferring parental responsibility. The LIV is also
concerned that many intended parents are not currently aware of these suggested
“requirements” and, accordingly, do not secure appropriate contemporaneous evidence.
It is the experience of our members that commercial surrogacy cases are often better
managed than altruistic cases, which are not managed except for legal advice and
counselling. The LIV considers that there may be greater potential for problems to arise in
altruistic surrogacy cases than in commercial surrogacy cases, and queries the rationale
behind implementing such onerous standards for compliance by parties in commercial
surrogacy.
Page 15
The LIV submits that the Federal Family Courts should be given a broader discretion to
deal with non-compliance with the State based transfer of parentage legislation, given the
variation across states and territories as to what constitutes an illegal act in commercial
surrogacy arrangements23.
The LIV also submits that it is not in the best interests of children born of overseas
surrogacy arrangements to have parents who are not legally recognised as parents by the
Australian authorities. This is occurring in some situations under the current laws.
V.
Are there any amendments to the Family Law Act 1975 (Cth) that
could be made to assist other Commonwealth agencies, such as
those responsible for immigration, citizenship and passports, to
identify who the parents of a child are for the purposes of
Commonwealth laws?
In relation to Commonwealth Agencies such as those responsible for immigration,
citizenship and passports, the LIV considers that the relevant legislation applying to those
agencies should defer to the FLA regarding requirements for parentage and allow
commissioning parents who have entered into overseas surrogacy arrangements to
access the Australian State and Territory transfer of parentage mechanisms. The LIV
notes that the Australian Citizenship Act 2007 (Cth) and the Migration Act 1958 (Cth)
currently define ‘child’ by reference to the FLA, but these definitions are not exhaustive
(“without limiting”) and it is unclear whether, in practice, the authorities administering these
act use any alternative or supplementary definitions of “child” or “parent.”
Further Contact
The LIV is grateful for the opportunity to provide comment and we would appreciate the
opportunity for further input as required.
23
See Millbank J “The New Surrogacy Parentage Laws in Australia” (2011) 35 MULR.
Page 16
Annex 1 – LIV Previous Submissions
Assisted Reproductive Technology and Adoption: Should the Current
Eligibility Criteria in Victoria be Changed?
On 1 July 2004, the Family Law, Administrative Law and Human Rights and Young
Lawyers Sections provided a submission to the Victorian Law Reform Commission in
response to their consultation paper titled, Assisted Reproductive Technology and
Adoption: Should the Current Eligibility Criteria in Victoria be Changed? (December 2003).
In that submission, the LIV made the following general comments:

The best interests of the child must be the paramount consideration when
determining the eligibility criteria for Assisted Reproductive Technology (‘ART’);

This principle should be retained in the Infertility Treatment Act 1995 (the Act) as
the paramount consideration;

The Act should also expressly incorporate Articles 3,6,7,8 and 12 of the UN
Convention on the Rights of the Child (CROC) as guiding principles;

Access to ART should not be governed by discriminatory legislative criteria,
therefore the Act should be amended to include a statement to the effect that
ART service providers shall not, in providing access to ART, breach the Equal
Opportunity Act 1995 (Vic) in determining who should be eligible to receive ART
services;

Also, the level of fertility, which is required before ART services are provided,
should be uniform for all women, regardless of their marital status or sexual
orientation;

It is in the best interests of the child to know the identity of his or her biological
parents. It is also in the best interests of the child to have certainty in respect of
his or her living arrangements, therefore:

Any agreement reached between the parties regarding the proposed parenting
structure should be recognised at law to indicate the parties’ intentions in
respect of the child.
 The parties recognised as “the child’s parents” pursuant to any agreement
should be able to formally adopt the child.
 The details of each biological parent be registered and all children have a right
at 18 years to access this register.
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
Provided that the Court pursuant to legislation is able to determine whether the
interests of a particular child are best served by an Adoption Order, same-sex
couples should be able to apply to adopt a child.

Where a donor wishes to adopt a child jointly with a single mother or lesbian
couple, a donor should have a right to be heard, leaving issues such as the
degree of involvement, the exercise of inheritance rights etc to be determined by
a Court. Again, the paramount consideration is the best interests of the child.

For inter-country adoptions, unless the country of birth is able to demonstrate
that its legal system has a similar view on same-sex adoptions, an application
for an inter-country adoption should only proceed in circumstances where full
regard is had to the wishes of the relinquishing parents, as well as the policies
and attitudes of the country from which the child is being adopted.

Full IVF surrogacy (where the child has no genetic relationship with the
surrogate mother) should not be prohibited.

The current eligibility requirements are not appropriate for Full IVF surrogacy; it
is the commissioning parents alone that should have to comply with the
requirements for infertility under the Act.

The Act should be amended to clarify the legal status of a child born as a result
of a surrogacy arrangement to provide that the commissioning parents are the
parents of the child at law.

A birth mother should be entitled to be reimbursed for hospital expenses and
any allied expenses during pregnancy and the birth.
Assisted Reproductive Treatment Bill 2008 (Vic)
On 7 October 2008, the Family Law and Administrative Law and Human Rights Sections
made a submission to the Victorian Attorney – General regarding the Assisted
Reproductive Treatment Bill 2008 (Vic) (‘the ART Bill’). The ART Bill sought to regulate
aspects of assisted reproductive treatment, artificial insemination and surrogacy
arrangements. In particular, it recognised that the welfare and interests of the child are
paramount and introduces legislative changes to ensure that people wishing to undergo
assisted reproductive treatment or artificial insemination are not discriminated against on
the basis of their sexual orientation, marital status, race or religion. In so doing, the ART
Bill made Victorian laws more consistent with the Victorian Charter of Human Rights and
Responsibilities Act 2007 and with laws in other parts of Australia and internationally. The
ART Bill implements many of the 202 recommendations made by the Victorian Law
Reform Commission in its Assisted Reproductive Technology & Adoption: Final Report
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(June 2007) (‘VLRC Report’). The detailed VLRC Report followed extensive consultation
on the social, ethical and legal issues related to assisted reproduction, including the
interests of people in same-sex relationships and of the children of parents in same-sex
relationships. The VLRC Report noted that under Victoria’s laws:

Single women or women in same-sex relationships who wish to use donor sperm
from a clinic because they do not have male partners but who are not clinically
infertile cannot access reproductive treatment;

When children are born to same-sex couples, they are disadvantaged because
one of the people caring for them is not legally recognised as their parent;

A child is not entitled to child support from their non-birth mother if a couple breaks
up. Nor does a child have an automatic right to claim on the estate of their nonbirth mother if she dies;

It is almost impossible for a surrogate mother to have treatment in a reproductive
clinic [as she] must be ‘unlikely to become pregnant’ to receive treatment;

The law does not currently recognize the people who arrange to have a child
through surrogacy as the parents, even if they are the genetic parents of the child;
and

The VLRC Report concluded that children’s best interests are harmed by
discrimination against their parents and urged that discrimination be ended.
The LIV strongly supported the ART Bill and urged its prompt passage into law.
Proposal for a National Model to Harmonise Surrogacy
On 20 April 2009, the LIV sent a submission to the New South Wales Attorney – General’s
Department in response to their proposal paper titled, Proposal for a National Model to
Harmonise Surrogacy (January 2009). In that submission, the LIV continued to support
the majority of the amendments introduced by the subsequently enacted Assisted
Reproductive Treatment Act 2008 (Vic) (“ART Act”). The LIV, however, supported some
changes to the ART Act which we hoped to see incorporated into any national model to
harmonise regulation of surrogacy. In that submission, the LIV made the following general
comments:

The LIV considered that parentage orders should be available to parents
regardless of the method of conception. In particular, the LIV believes that a
parentage order should be available regardless of whether conception is achieved
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naturally, through artificial insemination or with the assistance of a registered ART
provider; and

In line with the LIV’s Policy Statement on Removal of Discrimination against
People on the Basis of Gender Identity or Sexual Orientation, we are of the view
that there should not be any restrictions on which adults may apply for parentage
orders. This view is consistent with the Family Law Act 1975 which does not limit
persons who may apply for a parenting order and therefore same sex couples and
de facto partners may apply for such an order.
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