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: [email protected]

© 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) ………………………………………………………………………………...

Page 2 Assisted Reproductive Treatment Bill 2008 (Vic) (7 October 2008) ………………………………………… Proposal for a National Model to Harmonise Surrogacy (20 April 2009) ………………………………

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.

Page 3 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 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;

1 HA Finlay, RJ Bailey – Harris and MFA Otlowski, Family Law in Australia (5th edn) (1997) Butterworths, 367. 2 Ibid. 3 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.

Page 4 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:

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;

Page 5 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?

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 (Ct

h) 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 children 4. 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

4 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.

Page 6 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.

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

5 Douglas v Longano (1981) 147 CLR 212. 6 Section 69P(1) of the FLA. 7 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.

Page 7 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;

 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:

12 HA Finlay, RJ Bailey – Harris and MFA Otlowski, Family Law in Australia (5th edn) (1997) Butterworths, 354. 13 Section 69V of the FLA. 14 Section 69VA of the FLA. 15 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.

Page 8 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 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

21 Ibid. 22 Per Watts J, at [34].

Page 9 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.

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.

Page 10 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 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 Fa

mily 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

Page 11 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.

III. Whether there are any amendments that should be made to make t

he Family Law Act 1975 (Cth) more consistent with State and Terri

tory 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

Page 12 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 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.

Page 13 (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]

IV. Are there any amendments that would assist the family courts to d

etermine the parentage of children born as a result of assisted rep

roductive technology, including surrogacy, where the State and Te

rritory 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.

Page 14 137. Independent evidence with respect to the surrogate birth mother. This may be obtained by a family consultant or an independent lawyer, including:

a) confirmation that legal advice and counselling were provided to the surrogate mother prior to entering into the surrogacy arrangement; b) confirmation that the surrogacy arrangement was entered into before the child was conceived; c) confirmation that the surrogacy arrangement was made with the informed consent of the surrogate mother; d) evidence after the birth of the child of the surrogate mother’s views about the orders sought and what relationship, if any, she proposes with the child; e) if the child has been granted a visa to enter Australia, evidence of participation by the surrogate mother in an interview with immigration officials prior to the grant of the visa, and the views expressed by her during this interview.

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.

Page 15 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.

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 c

ould be made to assist other Commonwealth agencies, such as th

ose responsible for immigration, citizenship and passports, to iden

tify who the parents of a child are for the purposes of Commonwea

lth 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 Elig

ibility 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.

Page 17  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

Page 18 Reform Commission in its Assisted Reproductive Technology & Adoption: Final Report (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 non- birth 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

Page 19 parentage order should be available regardless of whether conception is achieved 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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