Recognising Children born as a result of international surrogacy arrangements
6th World Congress on Family Law and children’s Rights
Alexandra Harland*
Abstract
International surrogacy is becoming an increasingly popular alternative for couples who cannot
conceive children for medical or social reasons. International surrogacy is almost always commercial
surrogacy. Although altruistic surrogacy is legal in Australia it is a limited option for couples as
altruistic surrogates are hard to find particularly as advertising for a surrogacy arrangement is illegal.
Adoption is not a realistic option for most people due to the long waiting lists and eligibility
restrictions.
The objective of this paper is to highlight the ineffectiveness of criminalising commercial surrogacy
and extra-territorial bans. Denying parentage transfers to people who have breached legislative
provisions does not just punish adults but denies children legal parents and in some cases also leaves
them stateless. Arguably this leaves Australia in breach of its obligations under the Convention on
the Rights of the Child.
This paper will look at Australian and UK cases to look at the impact on children when surrogacy
parentage arrangements are not recognised. It will then consider solutions to the problem which
include a Hague Convention on Surrogacy. This paper will consider this as well as national law
reform.
Introduction
Increasingly infertile Australian couples look to international surrogacy as a way of
creating a family. Overseas surrogacy is usually commercial surrogacy. There are
desperate Australian families for whom adoption and IVF are not an option. These families
want children and will go overseas in order to complete their families. They will continue
to do it whether or not it is illegal in Australia. It is something that people have become
more aware of as an option. Fertility travel is a reality. If you search this term on the
internet you will find several clinics in various countries. Fertility clinics in Thailand and
India promote themselves as attractive options.1 Part of the attraction is the affordability
of airfares and the surrogacy fees as compared to the United States. and the lack of
regulation.2 The lack of regulation is a double edged sword. It means that couples can
access the surrogacy services but there can be problems after the child is born. The lack
of regulations means a lack of certainty and clear standards. The hazards of international
*The Author wishes to thank Professor Jenni Millbank for her helpful comments on earlier drafts of this
paper.
See
for
example
http://www.whatclinic.com/fertility/india;
http://www.fertilityindia.com/;
http://thailandfertility.com/home/; http://www.whatclinic.com/fertility/thailand
1
Browning, Anita, ‘As the Stork Flies from India to Australia Intercountry Commercial Surrogacy
Arrangements’ (November/December 2011) 107 Precedent 22
2
1
surrogacy include concerns about exploitation of poor women and child trafficking. The
other hazard is the potential for children to be stateless because of conflicting laws in the
country where the surrogacy has taken place and the home country of the intending
parents. (Donor eggs may come from a third country).
The Hague Conference on Private International Law (“HCCH”) is looking into the issue of
international surrogacy. One of the issues of great concern which it has identified is the
status of children and the establishment or recognition of the child’s legal status which has
important consequences for the child including nationality, immigration status and
parental responsibility.3 The issues concerning the status of children has shifted from
being about illegitimacy of some children to focusing on issues of legal parentage.4
Family forms are more varied and the debate about what makes a person a parent has
moved beyond focusing on biological ties5.
The HCCH notes that preliminary research it carried out suggests that the highest number
of cross-border cases involving problems related to legal parentage are international
surrogacy cases.6 There have now been several international cases which have highlighted
complex problems and consequences for children without a state. The responses have
been to come up with one off, ad hoc solutions.7 The case known as the Baby Manj case
is one example. A Japanese couple entered into a surrogacy arrangement with a
surrogate in India. In order for the child to gain entry into Japan the intended mother had
to take custody or the father had to adopt. The father did want the child but he was not
recognised as a parent. Under Indian law a single male is not able to adopt a female child.
The child was stranded in India for two years whilst legal proceedings ensued. Eventually
the child was issued with a passport and identity papers and went to Japan with her
father.8 This is not the only example of a child being stranded and stateless.9
The difficulty with these partial solutions is that that child may be left with what has been
referred to as ‘limping’ legal parentage which refers to fact that one parent (and
Hague Conference on Private International Law ‘Private International Law Issues Surrounding the Status of
Children, Including Issues Arising from International Surrogacy Arrangements’, Preliminary Document No. 11
of March 2011 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference
[3]
4
Ibid [4].
3
5
Note 3 above [7].
6
Ibid [10].
7
Ibid 9 [13] .
Browning, Anita, ‘As the Stork Flies from India to Australia Intercountry Commercial Surrogacy
Arrangements’ (November/December 2011) 107 Precedent 22 , 22-23.
8
Pawandeep Singh v Entry Clearance Officer [2005] QB 08 ; Re: X & Y (Foreign Surrogacy) [2008] EWHC
3030 ; Malhotra, Anil and Malhotra, Ranjit, ‘All Aboard for the Fertility Express’ (March 2012) 38(1),
Commonwealth Law Bulletin .
9
2
sometimes two) may not be legally recognised as the child’s parents.10 This is a current
issue in Australia as will be illustrated by the discussion of some Australian surrogacy cases
below.
Why is Legal Parentage Important?
Having legal parents grants children several rights and protections including:







Citizenship
Access to Medicare and medical benefits
Access to medical treatment
Applications for passports and anything requiring a birth certificate
Inheritance rights, A child’s rights to workers compensation entitlements upon the
death of a parent
access to child support
Identity
Many of these rights are reflected in the United Nation Convention on the Rights of the
Child. Article 7 states:
Article 7
1. The child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and, as far as possible, the right to
know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with
their national law and their obligations under the relevant international instruments
in this field, in particular where the child would otherwise be stateless.
As will be seen in the discussion below, the right to birth certificate and acquiring
nationality are fundamental issues. Some children born as a result of surrogacy
arrangements have been denied these rights and have been rendered stateless because
of clashes between the laws of the country where the surrogacy has taken place and the
intended parents’ country of residence. It is not just as a result of the lack of parental
status of the intended parents but the child not being entitled to the nationality from the
surrogate. India and the Ukraine are examples of this. It is in a child’s best interest for the
reality of child’s family life to be legally recognised. Children’s human rights are entwined
bound up with the human rights of their parents.11
Hague Conference on Private International Law, A Preliminary Report on the Issues Arising from
International Surrogacy Arrangements Preliminary Document No 10 of March 2012 for the attention of the
Council of April 2012 on General Affairs and Policy of the Conference [33].
10
The Human Rights and Equal Opportunity Commission looked at this issue in the context of nonrecognition of same-sex couples. Human Rights and Equal Opportunity Commission, Same-Sex Same
Entitlements National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and
Work-Related Entitlements and Benefits, May 2007, 91.
11
3
Parental responsibility orders do not provide the same level of protection to a child as
having legal parents. Parenting responsibility gives a person decision-making
responsibility for the welfare of the child until the child turns 18.12 A parental responsibility
order at least allows an adult to deal with health, educational and travel issues but it does
not address the more fundamental issues set out above.
The Current State of Surrogacy Laws in Australia
There have been significant changes to Australian surrogacy laws in in the past twenty
years. Each of the Australian States carried out Parliamentary enquiries into altruistic
surrogacy and released reports as a result of those enquiries between 2007 and 2009.13
The major drawback of all of those enquiries is that they did not consider the issue of
commercial surrogacy. This is important because increasing instances of Australian
couples engaging in overseas surrogacy arrangements. A problem that is emerging in
several countries is the misinformation intended parents receive from clinics which result
in major immigration problems and children being in a legal limbo. There have been
several overseas cases which have highlighted this problem.14
In Australia surrogacy laws are fragmented and inconsistent. Every State and Territory in
Australia except for the Northern Territory has surrogacy legislation. The Australian States
have introduced various surrogacy laws which are complex and inconsistent.15 It is beyond
the scope of this paper to examine the state surrogacy legislation in detail but it will
highlight some of the onerous conditions intended couples must meet in order to obtain
a post birth parentage order. The state laws various onerous requirements which intended
parents must meet in order to obtain parentage orders. There is no scope for intended
parents who have entered into a commercial surrogacy arrangement to obtain a
parentage order.
12
See Family Law Act, 1975 (Cth), ss 61B, 61C
Standing Committee on Law and Justice (NSW), Legislation on Altruistic Surrogacy in NSW, Report 38 (May
2009); Victoria Parliament, Current Issues Brief No 5, 2008, Assisted Reproductive Treatment Bill 2008
(December 2008); Queensland Parliament, Investigation into Altruistic Surrogacy Committee Report (October
2008); Western Australia Legislative Council, Report 12, Standing Committee on Legislation in Relation to the
Surrogacy Bill 2007 (WA); Parliament of Tasmania, Legislative Council Select Committee Report on Surrogacy
(July 2008); South Australia Parliament, Social Development Committee, Inquiry into Gestational Surrogacy
(2007) and the relevant legislation, Report 26.
13
See for example Pawandeep Singh v Entry Clearance Officer [2005] QB 08 ; Re: X & Y (Foreign Surrogacy)
[2008] EWHC 3030; Malhotra, Anil and Malhotra, Ranjit, ‘All Aboard for the Fertility Express’ (March 20102)
38(1), Commonwealth Law Bulletin; Hague Conference on Private International Law ‘Private International
Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy
Arrangements’, Preliminary Document No. 11 of March 2011 for the attention of the Council of April 2012 on
General Affairs and Policy of the Conference at para 21.
15
For a detailed analysis and comparison of the surrogacy laws in Australia see Stephen Page and
Alexandra Harland “Tiptoe through the minefield: A State by State comparison of surrogacy laws in Australia
2011 Fam L Rev 1. Some of the discussion in the article is reproduced here.
14
4
The various state legislation regulates a range of issues with respect to surrogacy
arrangements.16
The relevant legislation currently in force is as follows:
Surrogacy Act 2010 (NSW);
Surrogacy Act 2010 (Qld);
Parentage Act 2004 (ACT);
Assisted Reproductive Treatment Act 2008 (Vic); Status of Children Act 1974 (Vic);
Family Relationships Act 1975 (SA);
Surrogacy Act 2008 (WA);
Surrogacy Act 2012Tas). This Bill has been passed by Parliament but has not yet come into
force.
There is no legislation in the Northern Territory addressing surrogacy. This means that
couples in the Northern Territory who engage in surrogacy arrangements have no
mechanism for obtaining legal parentage under any Northern Territory law unless they
are able to satisfy adoption legislation
Who may be an intended parent
Same sex de facto parents are not able to obtain parentage orders as intended parents
under the legislation in South Australia and Western Australia.17 The other states and
territories allow heterosexual and same sex de facto couples to be intended parents.18
Residence requirements
Each of the States and the Australian Capital Territory (“ACT”) require the intended
parents to be residents of that State or Territory.19 This avoids forum shopping.
Other requirements
The States and the ACT also set out different requirements about the ages of the
intended parents and the surrogate, whether or not a genetic relationship is required
between the intended parents and the child. The various legislation also address the
forms of surrogacy arrangements, the requirement of counselling before and after
entering into the arrangement and the form of surrogacy that is permissible.
Who is a parent if no parentage order is made20
For a detailed comparison of the state requirements see Stephen Page and Alexandra Harland “Tiptoe
through the minefield: A State by State comparison of surrogacy laws in Australia" 2011 Fam L Rev 1
17
Family Relationships Act 1975 (SA), s 10HA; Surrogacy Act 2008 (WA), s 19.
18
Surrogacy Act 2010 (Qld),s 7(1); Surrogacy Act 2010 (NSW), s 5(6); Parentage Act 2004 (ACT), s 24; Victoria
(Assisted Reproductive Treatment Act 2008 (Vic); Status of Children Act 1974 (Vic);
19
Surrogacy Act 2010 (Qld), s 22(g); Surrogacy Act 2010 (NSW), s 32; (Parentage Act 2004 (ACT),s 24; Victoria
(Implicit from Assisted Reproductive Treatment Act 2008 (Vic), s 40; required at the time of filing application
to court: Status of Children Act 1974 (Vic), s 20(1)(b); (Surrogacy Bill 2011 (Tas), s 14; Surrogacy Act 2008
(WA), s 17.
16
5
If no parentage order is made the surrogate and her husband her de facto partner are
the parents.
State
Queensland
(Surrogacy Act
2010 (Qld), s 17;
Status of Children
Act 1978 (Qld) ss
17, 19D)
New South Wales
(Surrogacy Act
2010 (NSW), s 39,
Status of Children
Act 1996 (NSW),ss
9, 10,
11, 14)
Australian Capital
Territory
(Parentage Act
2004 (ACT), ss 7,
8, 9, 11, Legislation
Act 2001 (ACT), s
169)
Victoria
(Status of Children
Act 1974 (Vic), ss
10A, 10C-10E, 1316, 19)
South Australia
(Family
Relationships Act
1975 (SA), ss 7, 8,
Who is parent when no parentage order made?
Surrogat Surrogat Surrogate Surrogate’s Sper
Egg
e
e’s
’s
lesbian
m
donor
husband heterosex
partner
donor
ual de
facto
partner




x
x




x
x




x
x




x
x




x
x
This table is reproduced with permission of Thomson Reuters. It originally appeared in the article Stephen
Page and Alexandra Harland “Tiptoe through the minefield: A State by State comparison of surrogacy laws
in Australia" 2011 Fam L Rev 1. The table has been updated to reflect legislative changes.
20
6
10C, 10D, 10E,
s11A)
Western Australia
(Artificial
Conception Act
1985 (WA), ss 3,
5-7)




x
x
Obtaining a parentage order in NSW
The Surrogacy Act 2010 (NSW) commenced on 1 March 2011. It provides a mechanism for
transferring legal parentage from the surrogate mother (and her partner if applicable) to
the intended parents, deeming the child to be the child of the intended parents. However,
there are several requirements parties must meet in order to obtain a parentage transfer
order. Section 3 contains the guiding principle, which is that the best interests of the child
are paramount.
The court has discretion as to whether or not to make a parentage order. This is clear
from the use of the word ‘may’ in section 12. However this discretion is not unfettered as
the next several provisions list a series of mandatory and non-mandatory pre-conditions.
The court may make a parentage order in spite of a non-mandatory pre-condition not
being met in exceptional circumstances: s18.
Section 14 deals with applications for a parentage order. If there are two intended parents
then generally they must make the application jointly. The fact that the intended parents
have separated does not prevent them from doing this. In exceptional circumstances one
intended parent may apply without the other.
The timeframe for a parentage application is 30 days after the birth and within 6 months
of the birth of the baby: s16(1). In the case of a pre-commencement surrogacy agreement
(that is an agreement entered into before the commencement of this legislation) the
application must be made within 2 years of the commencement of the Act (that is by 1
March 2013). It is possible to apply for leave to apply after the expiration of the time limit
in exceptional circumstances: s16(3).
In addition the intended parents must lodge an independent counsellor’s report with their
application. Section 17 sets out at length the details which must be included in that report.
One of the effects of obtaining a parentage order is to replace the names of the birth
parents with those of the intended parents on the birth certificate. 21. The parentage order
21
Part 4A of the Births, Deaths and Marriages Registration Act 1995 (NSW).
7
must be registered with the Registry of Births, Deaths and Marriages.22 The birth certificate
must not make reference to the surrogacy arrangement.23
What are the mandatory pre-conditions?
The mandatory conditions are:
 The parentage order must be in the child’s best interests: s22;
 The surrogacy arrangement must be altruistic (that is non-commercial): s23;
 The surrogacy arrangement must be a pre-conception agreement: s24;
 The intended parent can be single or a member of a same-sex or heterosexual
couple: s25.
 The child must be under the age of 18 at the time of the application and the court
must have regard to the child’s view. This provision will generally only apply to
pre-commencement arrangements: s26;
 The birth mother must be 25 (or 18 if it is a pre-commencement arrangement). In
all cases the birth mother must be at least 18 at the time of entering into the
surrogacy arrangement: s27;
 The intended parents must be at least 18 years old at the time of entering into the
surrogacy arrangement: s28;
 If an intended parent is under the age of 25 at the time of entering into the
surrogacy arrangement the intended parent must demonstrate his or her maturity.
This can be done by providing evidence from a qualified counsellor that he or she
has sufficient maturity to understand he social and psychological consequences of
the parentage order: s29;
 A medical or social need must be demonstrated. A social need only applies to
men:s30;
 Each of the effected parties must consent to the parentage order: s31;
 The applicant(s) must be resident in NSW at the time the parentage application is
heard: s32;
 The child must be living with the applicant(s) at the time the parentage application
is heard: s33;
 The surrogacy arrangement must be in writing and signed by the birth mother, the
birth mother’s partner and the intended parents: s34;
 Each of the affected parties must have obtained counselling about the social and
psychological implications before entering into a surrogacy arrangement: s35;
 Each of the affected parties must have obtained legal advice from an Australian
legal practitioner about the surrogacy arrangement before entering into it. The
birth mother (and her partner if she has one) must obtain legal advice from a
different Australian legal practitioner which is independent of the advice given to
the intended parents.
22
Births Deaths and Marriages Registration Act 1995 (NSW) s 25B.
23
Births, Deaths and Marriages Registration Act, 1995 (NSW) s 25C.
8


Registrable information must be provided to the Director-General of the
Department of Health. This is to comply with the requirements to keep a central
register under the Assisted Reproductive Technology Act 2007 (NSW): s37; Part 3 of
the Assisted Reproductive Technology Act 2007 (Cth) deals with the information
which must be provided about the surrogacy arrangement for the Central Register
maintained by the Director-General.
The birth of the child must have been registered: s38.
What are the non-mandatory pre-conditions?
It is difficult to identify the non-mandatory pre-conditions as even though some sections
are not explicitly expressed as a mandatory pre-condition the wording of the sections
themselves are mandatory in their terms. See for example sections 32 and 33.
The requirements in s34 with respect to surrogacy arrangements do not apply to precommencement arrangements: s34(2). (That is an arrangement entered into before 1
March 2011.)
The effect of a parentage order
Section 39 explains the effect of the parentage order which is to make the intended
parents the child’s parents and to cause the birth mother and her partner to cease being
the parents of the child. The child is the intended parents’ child and has the same rights as
a child born to those parents.
Section 40 provides that a child is not deprived of a property interest the child has prior to
the parentage order being made.
Upon the parentage order being made the child’s name surname is to be that of the
intended parents or the name set out in the application: s41.
Discharging a parentage order
An interested person may apply to discharge a parentage order. An interested person is a
child whose parentage was transferred (if that child is over 18), the birth parents, the
intended parents and the Attorney-General: s 43.
The court has a limited discretion to discharge a parentage order. The court must be
satisfied that one of the following conditions apply:
 The parentage order was obtained by fraud, duress or other improper means;
 The consent for the parentage order was not in fact given or was given for
payment, reward or other benefit; or
 There is an exceptional reason: s44
9
If the parentage order is discharged it is as if the parentage order was never made.
However this does not affect anything done lawfully whilst the parentage order was in
place: s45.
Parentage applications are heard in a closed court and there are restrictions on searching
court records and publication: ss 47, 52, 53.
Applications for parentage orders are heard in closed courts and the decisions are rarely
published. Ap & Anor v RD & Anor [2011] NSWSC 1389 is an example of a parentage
application. Brereton J published his decision in order to provide some guidance.
ACT
In the ACT the birth parent must not be a genetic parent of the child and one of the
intended parents must be a genetic parent: s24 Parentage Act. The application may only
be made when the child is between the ages of 6 weeks and 6 months. The ACT
legislation refers to intended parents as substitute parents but for consistency the term
intended parents is used throughout this article.
The Supreme Court must make a parentage order if it is satisfied about the following
matters:



The order is in the child’s best interests: s26(a);
Both birth parents freely consent with a full understanding of what is involved (the
court can dispense with this if the birth parent is dead, incapacitated or not
contactable): 26(1)(b) and 26(2); and
The court must take into consideration the following at 26(3):
o The intended parents must be at least 18 years old;
o Whether there was payment or reward other that reasonable expenses; and
o Whether the birth parents and intended parents received counselling and
assessment from an independent counselling service
Queensland
An application for a parentage order may be made when the children is at least 28 days
old and not more than 6 months old unless leave is granted: 21(1)(a) Surrogacy Act 2010
(Qld).
The court may make a parentage order only if it is satisfied of the following mandatory
pre-conditions:


The order is in the best interests of the child: 22(2)(a);
The surrogacy arrangement was made after the birth mother (and her partner if
any) and the applicants independent legal advice about the surrogacy
arrangement: s22(e)(i);
10



The surrogacy arrangement was made after the birth mother (and her partner if
any) and the applicants obtained counselling about the surrogacy arrangement
and its social and psychological implications:s22(e)(ii);
The agreement was made by consent in writing before the child was conceived;
s22(e)(v);
The arrangement was not a commercial surrogacy arrangement: s22(e)(vi);
The requirements listed below may be dispensed with in exceptional circumstances:
s23(2)(a);





The child has lived with the applicants for at least 28 days before the application
was made: s22(b)(i);
The child is living with the applicants at the time of the application: s22(b)(ii);
There is evidence of a medical or social need for the surrogacy arrangement:
s22(d);
The applicant(s) was at least 25 years old at the time of the arrangement and
resident in Queensland: s22(g);
A surrogacy guidance report supports the making of the order: s22(i);
Tasmania
The Surrogacy Bill 2011 (Tas) has now been passed by Parliament. It has not yet come into
force. Section 14 of the Bill relate to applying for a parentage order. One of the
amendments the House of Assembly has made is to raise the minimum age of the
surrogate mother from 21 to 25.24 Section 14 contains requirements that parties to the
surrogacy arrangement receive independent legal advice and counselling about the social
and psychological implications before entering to the surrogacy arrangement. The child
must be living with the intended parents at the time of the application to the court and
the intended parents must be resident of Tasmania.
Criminalisation an Extra-Territorial Bans
A further example of the inconsistency in approaches of the States and Territories are the
bans on commercial surrogacy and extending the ban to apply extra-territorially. New
South Wales, Queensland and the Australian Capital Territory have extra-territorial bans
on commercial surrogacy.25 The other States do not.
In NSW the penalty for offering to or entering into a commercial surrogacy is a fine of up
to 2500 penalty units for a corporation or 1000 units for an individual and / or
imprisonment of up to 2 years.26 Section 11 is the extra-territorial provision. A person who
Legislative Counsel, Session of 2010-2012 (First Session of the Forty-Seventh Parliament) Votes and
Proceedings, uncorrected proof, No 11, Wednesday 29 August 2012, 659.
24
See Surrogacy Act 2010 (NSW), s 11; also note savings provision in Surrogacy Regulations 2011 (NSW), reg
8; Surrogacy Act 2010 (Qld), ss 54-58; Parentage Act 2004 (ACT), ss 41, 45
26
Surrogacy Act 2010 (NSW), s8.
25
11
is domiciled or ordinarily resident in NSW who enters into a commercial surrogacy
arrangement anywhere in the world has committed an offence under s8 of the Surrogacy
Act. The Standing Committee on Law and Justice (NSW), Legislation on Altruistic Surrogacy
in NSW, Report 38 (May 2009) did not discuss criminalising commercial surrogacy at all let
alone adding an extra-territorial ban. In the case of New South Wales this provision was
introduced late in the Parliamentary debates with little notice.27 The reasoning behind the
ban is to make it illegal for New South Wales residents to engage in commercial
surrogacy anywhere in the world.28 To date there have not been any reported
prosecutions.
In the ACT a person intentionally entering into a commercial surrogacy arrangement may
be liable for a 100 penalty unit fine or imprisonment of up to a year. 29 The ban in the ACT
also extends extra-territorially to anyone who is ordinarily resident in the ACT. 30
Queensland took the harshest approach in with the introduction of the Surrogate
Parenthood Act 1988 (Qld). It banned altruistic surrogacy and applied criminal sanctions to
surrogate mother, intending parents and third parties (such as doctors and lawyers).
Offenders were liable to fines and up to 3 years imprisonment.31 Criminal sanctions were
introduced despite the 1980s Demack report recommended against introducing criminal
sanctions.32 The ban extended to Queensland residents who took such action outside of
Queensland.33 Re Evelyn was a highly publicised Queensland altruistic surrogacy case.
None of the parties involved were prosecuted.34
Few people were prosecuted under the legislation and those who were received lenient
treatment from the courts.35
There is a real concern about the negative impact of criminal sanctions which carry
sentences of imprisonment on children born as a result of surrogacy arrangements. 36 The
Family Court decisions discussed below have taken differing approaches to this issues.
27
New South Wales, Parliamentary Debates, Legislative Assembly, 10 November 2010, (Linda Burney),
http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20101110031
accessed 22 January
2012.
28
Ibid.
29
Parentage Act 2004 (ACT), s 41.
30
Parentage Act 2004 (ACT), s 45.
31
Surrogate Parenthood Act 1988 (Qld), s3(1).
Brown, Catherine; Willmott, Lindy; and White, Ben, 'Surrogacy in Queensland: Should Altruism be a
crime?' (2008) 20(1) Bond Law Review Article 1,2.
32
33
Surrogate Parenthood Act 1988 (Qld), s3(2).
Stuhmcke, Anita, 'Looking backwards, looking forwards: judicial and legislative trends in the regulation of
surrogate motherhood in the UK and Australia' (2004) 18(1) Australian Journal of Family Law 1 at 15.
35
Emmerson, Glena, 'Surrogacy: Born for another' (research Bulletin 8/96 No Queensland Parliamentary
34
Library, 1996) ,39-40
12
Criminal sanctions should act as a deterrent. This requires offenders to be prosecuted and
sentenced in accordance with the legislation. The criminal sanctions under the
Queensland legislation were ineffective. The Surrogacy Act 2010 (Qld) imposes the same
criminal sanctions but applies it more extensively to people entering into a commercial
surrogacy arrangement, giving consideration, receiving payment, and providing technical,
professional or medical service to a person know the other person is or is intending to
become a party to a commercial agreement.37 It also applies extra-territorially to any
person ordinarily resident in Queensland.38
Margaret Brazier prepared a report in 1997 reviewing the UK’s surrogacy laws. She
opposed surrogacy being prohibited by criminal law on several grounds including:
1
2
3
children born as result of surrogacy arrangements would be tainted with the
criminality of the arrangement;
it would be an unjustified violation of proactive liberty when harm has been
assumed but not proved;
the ineffectiveness of prohibition, noting that surrogacy does not necessarily
require medical intervention (this is so in the case of partial surrogacy) 39
Michael Freeman disagrees with Margaret Brazier’s position arguing that one of criminal
law’s functions is to set moral standards not just criminal prosecutions.40 Surely however
for criminal laws to be effective as deterrence that law must be able to be prosecuted
effectively. If it cannot be then that law is undermined. It is analogous to a Court making
orders that cannot be complied with.
Catherine Brown et al reviewed the issue of criminalisation of surrogacy in Queensland
and identified 5 arguments against criminalising altruistic surrogacy. 41 Those arguments
are:
1. criminal sanctions should not be imposed if there is no evidence that the conduct
causes harm. There not empirical research to support the argument that the
Hague Conference on Private International Law, A Preliminary Report on the Issues Arising from
International Surrogacy Arrangements Preliminary Document No 10 of March 2012 for the attention of the
Council of April 2012 on General Affairs and Policy of the Conference [43]; Freeman, Michael, ‘Does
Surrogacy Have a Future After Brazier?’ (1999) 7 Med L Review 1,7
36
37
Surrogacy Act 2010 (Qld), s56.
38
Surrogacy Act 2010 (Qld), s54.
Brazier, Margaret, Review for Health Ministers of Current Arrangements for Payments and Regulations
(Cm. 4068) (1998), Department of Health, UK [4.38.]
39
40
Freeman, above n 36, 7
Brown, Catherine; Willmott, Lindy; and White, Ben, 'Surrogacy in Queensland: Should Altruism be a
crime?' (2008) 20(1) Bond Law Review Article 1, 2 - 21
41
13
2.
3.
4.
5.
surrogate is harmed42, that the intended parents are harmed or the child is
harmed;
some forms of cultural adoptions amongst Torres Strait Islanders known as Kupai
Osmasker;
the lack of criminal prosecutions in Queensland and the lenient treatment of those
who have been prosecuted Although data is difficult to obtain the lack of
prosecutions are not due to surrogacy not taking place but could indicate
community acceptance of altruistic surrogacy;
national and international norms
public opinion.
The arguments applied above to altruistic surrogacy can also be applied to commercial
surrogacy. The issue of commercial surrogacy has not been debated in Australia and as a
consequence neither has the issue of criminalising commercial surrogacy.43
Anita Stuhmcke points out that the perceptions around infertility treatments and
surrogacy have greatly changed since criminal sanctions were first introduced in the
1980s.44 Even in the 1980s there was not evidence to show that the community supported
criminalising commercial surrogacy.45 Anita Stuhmcke argues that criminalising surrogacy
should be designed to prevent harm and protect the public and should be based on
reason. It is questionable as to whether this is actually the case. 46 It is arguable that the
legislative restrictions encourage people to engage in overseas surrogacy arrangements
because it is not possible to advertise for surrogates, even for altruistic arrangements in
Australia.47
Australians are continuing to go overseas to engage in surrogacy arrangements. The
criminal sanctions, including the extra-territorial bans are ineffective. Regulating
commercial surrogacy in Australia needs to be investigated. The discussion of Australian
cases below shows the dilemma the Australian Family Court currently face and will
continue to face until the laws are changed.
It is beyond the scope of this paper to look at this issue in detail, however this point is controversial and
may well depend on whether the studies focus on surrogates in developed countries such as the United
Kingdom and the United States and surrogates in developing countries. See Stark, Barbara, ‘Transnational
Surrogacy and Human Rights Law’ (2012) 18(2) ILSA Journal of International and Comparative Law 1; Centre
for
Social
Research,
Surrogate
Motherhood:
Ethical
or
Commercial
(2012)
http://womenleadership.in/images/pdf/SurrogacyReport.pdf
43
Stuhmcke, Anita, 'The criminal act of commercial surrogacy in Australia: A call for review' (Pt 3) (2011 ) 18
Journal of Law and Medicine 601, 601
42
Ibid ,607. Stuhmcke refers to the 1986 report prepared by the NSW Law Reform Commission which
showed there was some support in the community for some sort of payment to surrogates,
44
45
Ibid, 608
Stuhmcke, Anita, 'The criminal act of commercial surrogacy in Australia: A call for review' (Pt 3) (2011) 18
Journal of Law and Medicine 601, 606.
46
47
Ibid, 607.
14
Applications to the Family Courts48
The only option for intended parents who have entered into commercial surrogacy
arrangements (and those who have entered into altruistic arrangements but are unable to
comply with the State requirements) to get any sort of legal status in relation to their
children is to apply to the Family Courts for parental responsibility. Some couples may be
compelled to seek orders because of problems with the immigration status of their
children.
Making an application to the Family Courts is risky and uncertainty as the following
analysis of some of the cases will show.
The cases of Dennis v Pradchaphet [2011] FamCA 123 and Dudley v Chedi [2011] FamCA
502 involved the same couple. They had three children born on the same day to two
different mothers in Thailand. They brought separate applications with respect to the
children of the mothers.
Dennis v Pradchaphet was heard by Stevenson J. The application before her was in
relation to one of the children. She noted that the births of the three children were
registered in the Thailand noting the details of the male applicant and the surrogate
mother on the birth certificates. The male applicant h commenced proceedings in
Thailand seeking orders that the surrogate mother relinquish her parental rights. This was
unsuccessful because under Thai law the mother is not able to relinquish her parental
rights until the child is 7 or 8 years old. The applicants filed an affidavit by the surrogate
mother which was translated by a Thai translator which dealt with the consent documents
she had received an advice she had received about Australian and Thai legislation. Her
Thai lawyer also gave evidence to the effect that under Thai lawyer the birth mother is the
only parent with any parental rights when the parents are unmarried. In this case the
birth mother was not the biological mother as anonymous donor eggs were used. He also
deposed there is no Thai law addressing surrogacy.
Stevenson J made orders for the applicants to have equal shared parental responsibility
and for the child to live with them. The applicants had standing under s65C of the Family
Law Act. She found that the male applicant was the father in circumstances where there
was a positive DNA test and he was named on the birth certificate. The father had
provided his genetic material which was used for IVF. He was also named on the Thai
birth certificate. She explicitly stated that her finding was not to have wider implications for
other cases. She was satisfied on the evidence before her that the applicants would
provide the child with a high standard of care and that it was in the child's best interests
to make the orders sought by the applicants. The applicants also gave evidence that they
would ensure the child grew up with an awareness of his Thai culture.
Family Courts refers to both the Family Court of Australia and the Federal Magistrates Court (soon to be
renamed the Federal Circuits Court). To date the published decisions have all been from the Family Court.
This does not mean that applications have not been made to the Federal Magistrates Court.
48
15
Dudley v Chedi was heard by Watts J. This application concerned the twins born on the
same day as their brother. Watts J referred to Stevenson J's judgment. He noted, as did
Stevenson J, that it was not possible to have the Thai surrogate mother relinquish her
parental rights under Thai law until the child reached the age of reason, being age 7.
Watts J also noted early in his judgment that the applicants were resident in Queensland
and that it was illegal for Queensland residents to engage in surrogacy arrangements. At
the time of the surrogacy arrangement the Surrogate Parenthood Act 1988 (Qld) was in
force. That Act banned all forms of surrogacy and made it illegal for Queensland residents
to enter into surrogacy arrangements regardless of whether those arrangements took
place in Queensland, interstate or overseas. Watts J commented that the material before
him was "starkly deficient" and lacked any details as to the nature of the surrogacy
arrangement and any financial arrangements. He had no evidence as to any safeguards
which may have been in place to protect the surrogate mother. He declined to make a
finding that the male applicant was the father for several reasons which are discussed
further below. The applicants did not seek a declaration about parentage. Even if the
Surrogacy Act 2010 (Qld) applied to them they would not be able to rely on the parentage
transfer mechanisms because other requirements of the Act, including assessment reports
and counselling, had not taken place. While Watts J found it was in the children’s best
interests to make the orders, as the children needed to be cared for by someone and the
evidence was that the applicants could do so very well including addressing the children’s
need for cultural identity, he referred the matter to the Queensland Director of
Prosecutions as the surrogacy arrangement was illegal.
The applicants did not see a declaration of parentage in either case. They only sought
parental responsibility and live with orders. The surrogate mother was not in a
relationship so s60H(1) did not apply. (This is discussed further below with respect to the
case of Ellison and Anor and Karchanit [2012] Fam CA 602.)
Presumably the evidence presented to the Court in both cases was similar as the same
law firm prepared the applications. It is significant that two judges took such different
courses with the same facts. The dilemma for couples such as the applicants is that they
may have little choice but to make the application because of immigration issues. In their
application the Dudleys stated that part of the reason for seeking these orders was to
assist the children’s immigration status as at the time the matter was heard they had been
unable to secure Australian citizenship for the children.
The Australian Citizenship Act 2007 (Cth) requires Australian citizenship by descent to be
derived by a “child” from a “parent” who is an Australian citizen. The Department of
Immigration and Citizenship requires a DNA test to be undertaken. H v Minister for
Immigration and Citizenship [2010] FCAFC 119 is an appeal decision of the Federal Court.
It is a useful decision to look at because it considers the meaning of who is a’ parent’ in
16
the context of s 16 of the Citizenship Act 2007 (Cth). Section 16 deals with applications for
eligibility for citizenship. In this case the Federal Court examined whether the reference to
parent in s16 of the Citizenship Act means only a natural or a biological parent. The court
rejected the argument that the Family Law Act and the Citizenship Act covered the same
subject matter such that provision in the Family Law Act giving parental status persons
who were not biological parents could be relied on in arguing that the reference to
parent in the Citizenship Act could be used in the same way. The Citizenship Act expressly
picks up on some Family Law Act provisions for its own purposes but this does not
diminish the fact that the two Acts cover different subject matters.
The Court then looked at the object of the legislation and the context of s16. The object of
the Citizenship Act is to define who is and who may become Australian citizens. The
Citizenship Act does not define the word ‘parent’ but does define responsible parent in s6.
It is clear from s6 that 'responsible parent' is a broader definition than 'parent' as it
includes people with parental responsibility. The context in which 'responsible parent' is
used does not assist with the interpretation of parent in s16(2). The reference to the word
‘descent; in the heading of Subdvision A of Division 2 of Part 2 of the Citizenship Act
(where s16 is found) also does not assist as depending on the context it can refer to
biological and non-biological family members such as in a family tree.49 The Court also
rejected the Minister's argument that the specific parentage presumptions in the Family
Law Act could be applied to other Commonwealth legislation such as s16(2) of the
Citizenship Act.50
The Court also rejected the Minister's argument that there would be no need for separate
provisions dealing with artificial conception and surrogacy in the Citizenship Act if the
definition of parent in s16(2) was intended to be broader than a biological parent. The
court stated that the issues relating to artificial conception and surrogacy are relatively
new and complex and need clear and specific provisions.51
The Court concluded that there was nothing in the objects or the structure of the
Citizenship Act that led to a conclusion that the reference to parent in s16(2) refers only to
a biological parent. The better view is that it has the ordinary meaning which may depend
on various factors including biological, social and legal.52
Ellison and Anor and Karchanit [2012] Fam CA 602 is a decision of Ryan J. She is the first
judge of the Family Court to make a detailed consideration of surrogacy arrangements
and subsequent arrangements for children.
49
H v Minister for Immigration and Citizenship [2010] FCAFC 119 [73].
50
Ibid [82].
51
Ibid [92].
52
Ibid [127]- [129].
17
The applicants engaged in a surrogacy arrangement in Thailand. They went to a Thai
fertility clinic where they used an egg from an unknown egg donor. Mr Ellison, one of the
applicants provided the sperm. The embryo was then implanted in the surrogate mother
Ms Karnchanit. As a result twins were born. Ms Solano was Mr Ellison's partner and the
other applicant. She had no genetic connection to the child. Ryan J appointed an
Independent Children's Lawyer and invited the Australian Human Rights Commission
("AHRC") to intervene. The AHRC accepted that invitation. The Commonwealth AttorneyGeneral's Department was invited to intervene but declined.
The applicants initially sought orders for equal shared parental responsibility and that the
twins live with them. Before this case other applications of this type were generally dealt
with on the papers.
The applicants and the children lived in Queensland where commercial surrogacy is
illegal. It is illegal for Queensland residents to engage in commercial surrogacy anywhere
in the world. The same is true for NSW residents.
Ryan J was critical of the evidence put forward by the applicants or the lack of it. She
commented that this was to mask the fact that it was a commercial surrogacy
arrangement.53 Commercial surrogacy arrangements are not illegal in Thailand. The
difficulty for the applicants was that they are residents of Queensland which has an extraterritorial ban. The effect of this is that the applicants were liable for prosecution which
potentially could involve imprisonment.54 Ryan J resolved this issue by granting the
application certificates under s128 of the Evidence Act 1995 (Cth) the effect of which is to
grant the person privilege with respect to self-incrimination.
The applicants were granted leave to seek a parentage declaration in favour of Mr Ellison.
Initially this was to assist in the application for the children to be granted Australian
citizenship. Before the case was finished the children were granted citizenship by descent.
AHRC argued that parentage is still valuable for the children because of the limits on
parental responsibility. Having a legal parent gives them a child/parent status that lasts
beyond the age of 18 and reflects their reality.
Ryan J pointed out that even if Mr Ellison established on the balance of probabilities that
he was the children's biological father, it does not automatically mean that State and
federal laws will recognise him as a parent due to the operation of parentage
presumptions.55
Mr Ellison and the surrogate mother were named as the children's parents on their Thai
birth certificates.
53
Ellison and Anor and Karchanit [2012] Fam CA 602 [3].
54
Surrogacy Act 2010 (Qld), s54, Surrogate Parenthood Act 1988 (Qld), s 3(2).
55
Ellison and Anor and Karchanit [2012] Fam CA 602 [17].
18
The ICL obtained expert evidence about Thai law. There are no surrogacy laws in
Thailand. Mr Ellison did not have parental authority. Mr Ellison could have applied to a
Thai Court for registration to legitimise his children (which would recognise him as a
parent). The mother and child's consent is needed but the children cannot give consent
when under 7 years of age. Mr Ellison's only option then would be to seek an order from
the court. It would be difficult for him to get an order for sole parental authority as the
Thai Courts are reluctant to take this away from a parent unless there is serious
misconduct. Mr Ellison did not make any application to a Thai court.56
Section s60H does not contact any geographical limit in its wording. Section 60H sets out
parentage presumptions which apply to children born as a result of artificial conception
procedures. In this case if the surrogate mother was in a de facto relationship at the time
of conception and her partner consented to the procedure then he would be deemed to
be a parent of the children. The evidence about the mother's relationship status was
initially unclear but Ryan J was satisfied in the end that she was not in a de facto
relationship at the time of conception.
Ryan J then discussed the interpretation of s 60H(1). She expressed the view that s60H
expands the categories of parents and is not exhaustive.57 Section 60H(1) did not apply
here because the surrogate mother was not in a de facto relationship. Section 60H(2)
deals with recognition based on prescribed state laws with respect to a child born as a
result of an artificial conception procedure. This section does not assist the applicants.
Mr Ellison was also not assisted by s69R with respect to parentage presumptions arising as
a result of his name being on the birth certificate because there are no prescribed
overseas jurisdictions.
Section s60HB which deals with children born under surrogacy arrangements is much
more restrictive. It only operated where a Court has made an order under a prescribed
state or territory. The prescribed laws are the state and territory surrogacy legislation
discussed above. This does not assist anyone involved in commercial surrogacy
arrangements.
The only parentage provision Mr Ellison could rely on was s69VA which enables the court
to make a declaration of parentage after having received evidence about parentage of
the child. Once that declaration is made it is conclusive evidence of parentage for the
purpose of all Commonwealth laws.
The AHRC relied on the United Nations Convention on the Rights of the Child ("UNCRC").
Several of the articles in the UNCRC talk about protecting the rights of children and their
relationship with their parents or legal guardians and the important of protecting children
against discrimination on the basis of the state of the parents, legal guardians and family
members and specifically referred to Article 7.
56
Ellison and Anor and Karchanit [2012] Fam CA 602 at paras [23] -[26].
57
Ellison and Anor and Karchanit [2012] Fam CA 602 [61].
19
This is directly relevant to the issues faced by children born as a result of surrogacy
arrangements.
Dudley v Chedi at paragraph 32 Watts J declined to make a finding that Mr Dudley was a
parent even though he acknowledged it would benefit the children because of the
following reasons:
1. What Mr Dudley did was illegal under the applicable State law;
2. There was no provision under State law to recognise the relationship between the
twins and Mr Dudley;
3. If it had been an altruistic surrogacy arrangement there is a mechanism that would
recognise him as a parent;
4. Mr Dudley may be able to seek a remedy through state adoption legislation;
5. The orders the applicants seek can be made without making a finding that Mr
Dudley is a parent.
The AHRC referred Watts J's reasons and submitted that whilst it was open to him to take
that course it was not in the children's best interests and was not consistent with the
UNCRC. The AHRC pointed out that the first three reasons are public policy issues but
argued that the Court has to deal with the children who are before the court and what is
in their best interests rather than looking at the legality of the arrangements which
brought them into the world. Ryan J held that in exercising her discretion she could not
give greater weight to public policy decisions over the children's best interests. She notes
that parentage 'has a wider reach' than parenting orders. It also recognised the realities of
the children's lives.58
With respect to the issue of adoption, Ryan J notes that the applications would first need
to make an application under s60G of the Family Law Act (which provided for the Family
Court having discretion to grant leave for state adoption proceedings to be commenced
by a prescribed parent). The declaration of parentage is a preliminary step if the
applicants decided to apply for adoption. Under s92 of the Adoption Act 2009 (Qld) they
cannot adopt the children until they are 5 years old.59
The parentage declaration only applies to Mr Ellison because the DNA test confirmed that
he is the children's biological father. There is no remedy under the Act to give Ms Solano
legal parenthood.
The ICL and the AHRC made submissions about developing practice guidelines for the
international surrogacy cases. They recommended that the following issues be
addressed:
58
Ellison and Anor and Karchanit [2012] Fam CA 602 [87], [92] and [101].
59
Ibid [93] - [94].
20
An ICL should be appointed to represent the child's interests. In this case the ICL played
an important role in gathering evidence about circumstances surrounding the birth
mother.
Affidavit evidence of the applicants and birth mother addressing the following issues:



Their personal circumstances at the time the procedure took place;
Circumstances leading up to the surrogacy arrangement;
Circumstances after the birth and subsequent care arrangements for the child.
Independent evidence about the identity of the child




The surrogacy contract entered into between the applicants and the clinic and / or
the birth mother;
A certified copy of the birth certificate and if not in English a translated copy with
an affidavit by the translator with their identifying information and qualifications;
Parentage testing which complies with the Family Law Regulations 1984 (Cth);
Evidence of Australian Citizenship if citizenship has been granted.
Independent evidence with respect to the birth mother




Confirmation that the surrogate mother received legal advice and counselling
before entering into the surrogacy arrangement;
Confirmation that the surrogacy arrangement was entered into before the child
was conceived
Evidence taken after the birth of the child about the surrogate's views about the
child and what relationship, if any, she wants with the child;
If the child has been granted a visa to enter into Australia evidence of any
interview the surrogate mother has participated in with immigration officials prior
to the visa being granted and any views she expressed during the interview.
A family report addressing the following issues






The nature of the child's relationship with the applicants;
The effect on the child of any change in circumstances;
The capacity and commitment of the applicants to the long-term welfare of the
child;
The capacity of the applicants to promote the child's connection to the country of
their birth's culture, including the birth mother's culture;
Advice in relation to issues which may arise about the child's identity and how to
manage those issues;
The views of the birth mother in relation to the parenting issues and issues of
culture and identity.
Other evidence
21


Evidence of the legal regime in the overseas jurisdiction where the procedure took
place with respect to surrogacy arrangements;
Evidence of the legal regime in the overseas jurisdiction where the procedure took
place with respect to rights of the birth mother and her partner if applicable
(whether husband or de facto).
What are some of the broader applications of this decision?
This decision provides a complete solution for Mr Ellison but not Ms Solano. It is
reminiscent of the era when it was not possible to recognise both same sex parents as
legal parents with the consequence that children of same sex parents had a legally
invisible parent. It also may have unintentional consequences for the status of sperm
donors. One of the purposes behind the parentage provisions was to ensure sperm
donors were not legal parents so that they would not be liable to pay child support and
would not be discouraged from donating sperm.
The uncertainty of approach may act as a deterrent to some couples who do not have an
immediate need to obtain a parental responsibility order. This can arise in situations
where a couple is able to obtain citizenship by descent for the children. They may have a
foreign birth certificate naming the intended parents as the children’s birth certificate.
Such a certificate has no legal effect in Australia60 but may be enough to enrol their
children in school and so on. In many instances the male intended parent (or one of them
in the case of a gay couple) may be named on a foreign birth certificate but the other
intended parent has no legal status at all. This might not cause problems immediately but
may cause problems in future years. For example the relationship may break down or the
legal parent may die. There may be unexpected inheritance or other problems.
Approach in the United Kingdom
The United Kingdom was the first country to introduce surrogacy legislation. It was as a
result of the Baby Cotten case.61 Initially the Surrogacy Agreements Act 1985 banned and
criminalised commerical surrogacy. The Surrogacy Agreements Act was later amended to
allow approval of payments in some circumstances but to render surrogacy agreements
unenforceable.62
A significant difference between the environment in Australia and the United Kingdom is
the presence of surrogacy organisations such as Childlessness Overcome Through
Surrogacy (“COTS”) in the UK. COTS was founded in 1988. It is a non-profit organisaition
which provides information and support to people interested in surrogacy. It also
introduces potential surrogates and intended parents to one another.63 Although most
60
Family Law Act 1975 (Cth), s69R. There are no prescribed jurisdictions for the purposes of this section.
Stuhmcke, Anita, 'Looking backwards, looking forwards: judicial and legislative trends in the regulation of
surrogate motherhood in the UK and Australia' (2004) 18(1) Australian Journal of Family Law 1 at 8-9.
62
Ibid, 9.
61
63
http://www.surrogacy.org.uk/About_COTS.htm accessed 31 December 2012.
22
Australian States and Territories now allow altruistic surrogacy, advertising for a surrogate,
is banned is some states and some of the legislation is not clear as to whether the ban
applies only to commercial surrogacy or to altrusitic surrogacy as well.. As a consequence
almost all altrustic surrogacy arrangements will be among family and friends. Finding a
surrogate in the UK can be difficult, so as in Australia, English couples look overseas.64
English cases such as Re: X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) 9 December
2008) and In Re L (A Child) (Parental Order: Foreign Surrogacy) [2011] 2 WLR 1006 illustrate
that the English legislation enables the court to make parental orders (this is referred to as
parentage orders in the Surrogacy Act 2010 (NSW) by exercising its discretion to
retrospectively authorise payments. This discretion is what is missing in in the Surrogacy
Act 2010 (NSW) and other Australian surrogacy legislation.
In Re L (A Child) (Parental Order: Foreign Surrogacy) [2011] 2 WLR 1006 the parents were
domiciled in the UK. They entered into a commercial surrogacy arrangement in Illinois in
the USA. The arrangement was entirely legal there. The arrangement would not have
been lawful in the UK as payments the parents made to the surrogate were more than
reasonable expenses. The intended parents faced immigration difficulties although as the
child has a US passport they were able to obtain a temporary visa. Section 54 of the
Human Fertilisation and Embryology Act 2008 addresses parental orders. Section 54 lists
several requirements which must be complied with to obtain parentage orders but also
enables the court to retrospectively authorise payments made to a surrogate even if they
are in excess of reasonable expenses. Hedley J stated that section 54 weighs the balance
between public policy considerations and the welfare of the child in a favour of the
welfare of the child. The Court will continue to scrutinise each case carefully in order to
police public policy matters but will only refuse a parental order in the clearest case of
abuse.
Re: X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) 9 December 2008) concerned a
couple who travelled to Ukraine to enter into a surrogacy arrangement. Problems arose
which the parties did not anticipate. Section 27 of the Human Fertilisation and Embryology
Act 1990 provides that the woman who gives birth to the child is the mother. This is
regardless of whether the woman is in the UK or elsewhere. There were also legal issues
as to who the father was. Under Ukraine law the birth mother and her partner were not
the parents with the consequence that the child was parentless and stateless. DNA test
undertaken in the UK established that the intended father was also the genetic father. This
enabled the intended parents to apply for a parental order in the UK but that does not
automatically confer citizenship. It was a commercial surrogacy arrangement. The court
commented that it could retrospectively authorise the payments but the process was
uncomfortable as Parliament is entitled to legislate against commercial surrogacy but the
difficulty is that by the time the matter comes to court the welfare of the child is going to
Gamble, Natalie, ‘The Response of United Kingdom surrogacy law to the growing surrogacy industry’,
(2012) 3 Fam L Rev 3, 28.
64
23
be the paramount concern. This last comment neatly sums up the problem. At least in the
UK courts can make orders conferring parentage upon intended parents whilst expressing
views that do not condone commercial surrogacy. Australian courts do not have any
discretion at all to take that course.
Options for reforms
There are a number of options for reforms which can occur at a state, national and
international level. Any international reforms will be years away.
State reforms
The current state legislation is too complex and restrictive. The Surrogacy Act 2010 (NSW)
illustrates this. The Act does not give the Court a discretion to make orders in the best
interests of children when a payment has been made. The Court also does not have a
discretion to relax the several mandatory requirements the Surrogacy Act 2010 (NSW) lists.
As a consequence there may be couples who have entered into an altuistic surrogacy
arrangement but are still unable to obtain a parentage order.
Whilst the UK legislation has been criticised65 the advantage of the UK legislation is the
discretion it gives to the Court to retrospectively approve payments which exceed an
altruistic surrogacy arrangement. It is clear from the reported English decisions that the
Court scrutinises these arrangements and does not merely rubber stamp them. However,
there is no reported decision where the Court has rejected an application because of the
circumstances of the surrogacy arrangements and the payments made. 66 If the State
Courts were given a similar discretion then parentage orders could be made in
circumstances where payments have been made provided the court finds it is in the
child’s best interests to do so.
Pending the referral of powers, which is dependent on a consensus from the States, it is
proposed that the States simplify their laws and adopt a uniform model legislation which
should give the court some discretion.
Commonwealth reforms
The States should refer their powers to the Commonwealth with respect to surrogacy.
Then one simple piece of surrogacy legislation could be introduced. This legislation could
deal with regulating commercial surrogacy including dealing with issues before the
surrogacy arrangement is entered into such as mandatory counselling and independent
legal advance, ., the surrogacy agreement itself and transferring parentage.
McCandles , and Sheldon Sally, ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of
the Sexual Law Reform’ (2010) 73(2) The Modern Law Review 175
65
Gamble, Natalie, ‘The Response of United Kingdom surrogacy law to the growing surrogacy industry’,
(2012) 3 Fam L Rev 3 at 29
66
24
It is clear from a review of the family law cases discussed above that the best interests of
the child born as a result of surrogacy arrangements is the Court’s paramount
consideration. Differing concerns have been expressed by judicial offers about the reality
of the child’s existence and family life and how this child came to be. By the time intended
parents apply for parenting orders the child exists. The court has to deal with the reality of
this.
Other aspects of reform which need to be addressed is the regulation of the surrogacy
process. It is clear that the laws banning commercial surrogacy are ineffective. Concerns
about the exploitation of poor women and baby trafficking can be addressed by
regulating commercial surrogacy in Australia. There are several advantages to this which
include:
 Collection of identifying information in a central register to give children easy
access to information about their identity;
 Clear checks and balances including counselling and ensuring all parties involved
receive independent legal advice before entering into a surrogacy arrangement;
 Ensuring surrogacy contracts protect the surrogate and give her the right to
control her body during her pregnancy.
The Family Law Section of American Bar Association drafted a Model Act Governing
Assisted Reproductive Technology. The Model Act provides two alternatives. The first
alternative requires the court to approve the surrogacy arrangement before the birth. This
approval process addresses the parentage issue. The second alternative is administrative
one which relies on the intention of the parties and does not require judicial approval. 67 A
purely administrative scheme is a radical step. A scheme that involves some judicial
oversight is more likely to be achievable in the short to medium term.
Another alternative is to look at amending existing legislation. Amendments can be made
to the Family Law Act 1975 (Cth). Sections 60H, 60HB and the other parentage
presumptions need to be reformed. These provisions need to be looked at together in
order to avoid contradictory presumptions. The difficulty with these provisions is that
some of them were inserted into the Family Law Act many years ago and technology has
since moved on.
Prescribed jurisdictions could be added to the Family Law Regulations so that s69R could
give effect to some foreign birth certificates. Currently there are no prescribed
jurisdictions for the purposes of s69R.Including prescribed jurisdictions would be limited to
jurisdictions which have similar standards to the rules in Australia and could include
jurisdictions where there pre-pregnancy counselling and legal advice and where there has
67
http://apps.americanbar.org/family/committees/artmodelact.pdf accessed on 13 January 2013.
25
been court orders made transferring parentage. This means there has already been a
level of scrutiny in the other jurisdiction and another set of court proceedings could be
avoided.
International Reforms
The Hague Conference on Private International Law has already produced two
preliminary reports on international surrogacy and is due to release its final report in April
2013.68 The HCCH expresses doubt about whether any individual state can provide a
complete solution because of the nature of the problems arising out of international
surrogacy.69 Any multilateral agreement needs to provide mechanisms to avoid ‘limping’
legal parentage’ and avoid children becoming stateless.70
Katerina Trimmings and Paul Beaumont argue for the need for an international surrogacy
arrangement based on the Hague Convention on Intercountry Adoption. 71 They argue
that such a convention should focus on international co-operation rather than imposing a
set of rules. This would be counter-productive given the wildly different approaches taken
by different nations.72 Natalie Gamble argues that the problem with an international
solution is the extent of disagreement at an international level about fundamental
questions, including when a woman should be entitled to surrender her parental rights,
whether surrogates should receive compensation and whether surrogacy should be
allowed at all. She also expresses concern about basing a convention on the Hague
Convention on Intercountry Adoption as surrogacy arrangements are very different and
involve the conception of a parent's own child rather than placing an existing child in
another home.73 This needs to be looked at more closely to consider whether or not this
is a viable solution. Given the complexity of the issues and the range of differing views it
appears that an international convention is an aspirational prospect rather than
something that is likely to become a reality in the near future. It is for this reason that the
focus first needs to be on national solutions.
Hague Conference on Private International Law ‘Private International Law Issues Surrounding the Status of
Children, Including Issues Arising from International Surrogacy Arrangements’, Preliminary Document No. 11
of March 2011 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference;
Hague Conference on Private International Law, A Preliminary Report on the Issues Arising from
International Surrogacy Arrangements Preliminary Document No 10 of March 2012 for the attention of the
Council of April 2012 on General Affairs and Policy of the Conference [66].
68
Hague Conference on Private International Law, A Preliminary Report on the Issues Arising from
International Surrogacy Arrangements Preliminary Document No 10 of March 2012 for the attention of the
Council of April 2012 on General Affairs and Policy of the Conference [44].
69
70
Ibid at para 48.
Trimmings, Katerina and Paul Beaumont, “International Surrogacy Arrangements: an Urgent Need for
Legal Regulation at the International Level” unpublished paper, 2011.
71
72
Ibid, 11.
Gamble, Natalie, "In Practice international surrogacy law conference in Las Vegas, October 2011, February
2012 Fam Law 198, 200.
73
26
27