The new surrogacy parentage laws in Australia: Cautious regulation or '25 brick walls'?

Melbourne University Law Review

Volumn 35, Issue 1, 2011, Pages 165-207

  Millbank, Jenni ^a  

^a UNIVERSITY OF TECHNOLOGY SYDNEY   (Australia)

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EID: 80455132835     PISSN: 00258938     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (405)

1. Quoted in Liz Brown, 'Family's Legal Dilemma', Lilydale and Yarra Valley Leader (Lilydale, Victoria), 4 February 2008, 3.
2. Legislative Council Standing Committee on Legislation, Parliament of Western Australia, Report on the Surrogacy Bill 2007 (2008) 5 [4.12] ('Western Australian Report').
3. Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy (2007) ('South Australian Report');
4. Legislative Council Select Committee on Surrogacy, Parliament of Tasmania, Report on Surrogacy (2008) ('Tasmanian Report');
5. Investigation into Altruistic Surrogacy Committee, Queensland Parliament, Report (2008) ('Queensland Report');
6. Legislative Council Standing Committee on Law and Justice, Parliament of New South Wales, Legislation on Altruistic Surrogacy in NSW (2009) ('New South Wales Report');
7. Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 [Provisions] (2008).
8. Only one was the product of an independent law reform commission: Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Final Report (2007) ('VLRC Report').
9. See Standing Committee of Attorneys-General Joint Working Group, A Proposal for a National Model to Harmonise Regulation of Surrogacy (2009) ('SCAG Paper'). Unlike countries such as the United Kingdom ('UK') and New Zealand, which have unitary governments and centralised regulators of assisted reproductive technologies ('ART'), in Australia laws on ART, surrogacy and parentage are largely in the hands of the states and have varied considerably in recent decades. Canada's federal legislation on ART was recently partially struck down as unconstitutional, but the criminalisation of paid surrogacy remains
10. see Reference re Assisted Human Reproduction Act [2010] 3 SCR 457.
11. Parentage laws are in the hands of the provinces, such that Canada also faces the problem of children born through surrogacy having different parental status nationwide. Some Canadian provinces have listed intended parents in gestational surrogacy as legal parents on birth registers following legal challenges: John Seymour and Sonia Magri, 'ART, Surrogacy and Legal Parentage: A Comparative Legislative Review' (Occasional Paper, Victorian Law Reform Commission, August 2004) 43. For further comparison of Canadian and Australian surrogacy regulation
12. see generally Ailis L Burpee, 'Momma Drama: A Study of How Canada's National Regulation of Surrogacy Compares to Australia's Independent State Regulation of Surrogacy' (2009) 37 Georgia Journal of International and Comparative Law 305.
13. Parentage Act 2004 (ACT), commenced 22 March 2004;
14. Surrogacy Act 2010 (NSW), commenced 1 March 2011;
15. Surrogacy Act 2010 (Qld), commenced 1 June 2010;
16. Statutes Amendment (Surrogacy) Act 2009 (SA), commenced 26 November 2010
17. amending Family Relationships Act 1975 (SA), Births, Deaths and Marriages Registration Act 1996 (SA) and Assisted Reproductive Treatment Act 1988 (SA);
18. Assisted Reproductive Treatment Act 2008 (Vic), surrogacy provisions (pt IV) commenced 1 January 2010;
19. Surrogacy Act 2008 (WA), commenced 1 March 2009. The Surrogacy Bill 2011 (Tas) passed the House of Assembly on 14 April 2011, but on 14 June 2011 the Legislative Council referred the Bill to committee, delaying its progress until late 2011. All references in the text of this article are to the government Bill as passed by the Assembly; however, it is not known at the time of writing whether these provisions will ultimately pass into law. The Legislative Council is dominated by independent members, several of whom flagged proposed amendments in the course of debate on the referral: Tasmania, Parliamentary Debates, Legislative Council, 14 June 2011, 4-31, 38-43.
20. Parentage Act 2004 (ACT) divs 2.4-2.5;
21. Surrogacy Act 2010 (NSW) pt 3;
22. Surrogacy Act 2010 (Qld) ch 3 pt 2;
23. Family Relationships Act 1975 (SA) pt 2B div 3;
24. Surrogacy Bill 2011 (Tas) pt 4;
25. Status of Children Act 1974 (Vic) pt 4;
26. Surrogacy Act 2008 (WA) pt 3. Once such a transfer is granted by a state or territory court, the resulting relationship is recognised by the Family Law Act 1975 (Cth) through s 60HB. The status of 'parent' and 'child' in the Family Law Act is then imported into several other federal Acts which adopt the Family Law Act definition. Note that, while the terminology used in the legislation varies, I use 'intended parents' and 'birth mother' throughout this article, both for consistency and because these terms are role-based descriptions which carry less connotation of value judgment than terms such as 'commissioning parents', 'substitute parents', 'arranged parents' and 'surrogate mother'.
27. See, eg, Surrogacy Act 2010 (NSW) ss 3, 8;
28. Surrogacy Act 2010 (Qld) s 5;
29. Assisted Reproductive Treatment Act 2008 (Vic) ss 5 (a) - (b), 44.
30. But see Surrogacy Act 2010 (Qld) ss 6 (2) (b), (d);
31. Assisted Reproductive Treatment Act 2008 (Vic) s 5 (e).
32. New South Wales Report, above n 4, 67 [4.92].
33. This limitation was acknowledged in the Queensland Report, above n 4, 2, 11-13.
34. Qualitative studies include one unpublished report of interviews with 13 gestational surrogates, referred to in the VLRC Report, above n 4, 37, 161, 178. The Victorian Law Reform Commission was also alone in addressing the international research
35. VLRC Report, above n 4, 161-2.
36. The Western Australian inquiry received only three submissions from those directly affected (one from a birth mother, one from a couple and one private submission): West ern Australian Report, above n 3, 19 [4.70]. The Tasmanian inquiry heard from only one intended parent and two couples who wished to be intended parents
37. Tasmanian Report, above n 4, 10-11. It is not clear how many of the 130 written submissions received by the Queensland inquiry were from affected adults, but of the 38 people who gave oral evidence there were at least six individuals wishing to be intended parents, as well as one woman who wished to be a birth mother but was not actually involved in any arrangement
38. Queensland Report, above n 4, 18-19, 95.
39. South Australian Report, above n 4, 9. The New South Wales inquiry received written submissions from two couples who were already intended parents and two women who wished to be intended parents
40. see Parliament of New South Wales, Submissions to Legislation on Altruistic Surrogacy in New South Wales .
41. See data from a set of related longitudinal studies in the UK led by Susan Golombok, including: Vasanti Jadva et al, 'Surrogacy: The Experiences of Surrogate Mothers' (2003) 18 Human Reproduction 2196;
42. Fiona MacCallum et al, 'Surrogacy: The Experience of Commissioning Couples' (2003) 18 Human Reproduction 1334;
43. Susan Golombok et al, 'Surrogacy Families: Parental Functioning, Parent-Child Relationships and Children's Psychological Development at Age 2' (2006) 47 Journal of Child Psychology and Psychiatry 213;
44. S Golombok et al, 'Non-Genetic and Non-Gestational Parenthood: Consequences for Parent-Child Relationships and the Psychological Well-Being of Mothers, Fathers and Children at Age 3' (2006) 21 Human Reproduction 1918.
45. See also numerous studies conducted by Olga van den Akker in the UK, including: Olga van den Akker, 'Genetic and Gestational Surrogate Mothers' Experience of Surrogacy' (2003) 21 Journal of Reproductive and Infant Psychology 145;
46. Olga B A van den Akker, 'A Longitudinal Pre-Pregnancy to Post-Delivery Comparison of Genetic and Gestational Surrogate and Intended Mothers: Confidence and Genealogy' (2005) 26 Journal of Psychosomatic Obstetrics and Gynecology 277.
47. On the role of such assumptions in social science research, see Elly Teman, 'The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood' (2008) 67 Social Science and Medicine 1104.
48. see Olga B A van den Akker, 'Functions and Responsibilities of Organizations Dealing with Surrogate Motherhood in the UK' (1998) 1 Human Fertility 10. The Golombok study recruited surrogacy families through applicants for parentage transfer, leading to higher participation from intended parents than birth mothers: MacCallum et al, above n 13, 1335;
49. Golombok et al, 'Non-Genetic and Non-Gestational Parenthood', above n 13, 1919.
50. Between 1983 and 1991 there were eight state and three federal inquiries which made recommendations about surrogacy: Anita Stuhmcke, 'Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia' (2004) 18 Australian Journal of Family Law 13, 23-9. The National Bioethics Consultative Committee ('NBCC') was alone among first wave inquiries in that it did not recommend various methods of prohibition and disincentive, but instead proposed that surrogacy arrangements should be permitted within a framework of government control
51. NBCC, Surrogacy - Report 1 (1990);
52. NBCC, Discussion Paper on Surrogacy 2 - Implementation (1990). These reports were sufficiently ahead of their time that the NBCC was disbanded shortly afterwards, only to see the substance of many of its recommendations appear 20 years later in the second wave reforms.
53. New South Wales Law Reform Commission, Artificial Conception Report 3: Surrogate Motherhood, Report No 60 (1988) 39.
54. Lindy Willmott, 'Surrogacy: Ill-Conceived Rights' (2002) 10 Journal of Law and Medicine 198;
55. VLRC Report, above n 4, 164-5.
56. Surrogacy Parenthood Act 1988 (Qld) s 3. This legislation was the subject of widespread and sustained criticism
57. see, eg, Catherine Brown, Lindy Willmott and Ben White, 'Surrogacy in Queensland: Should Altruism Be a Crime?' (2008) 20 Bond Law Review 1;
58. Taskforce on Women and the Criminal Code (Qld), Report (2000) 385 (recommendation 82) .
59. Assisted Reproductive Technology Act 2007 (NSW).
60. See generally Malcolm Smith, 'Reviewing Regulation of Assisted Reproductive Technology in New South Wales: The Assisted Reproductive Technology Act 2007 (NSW)' (2008) 16 Journal of Law and Medicine 120.
61. See ACT Law Reform Commission, Substitute Parentage Agreements, Report No 20 (2003) 10-11 ('ACT Report') for text of the Health Ministers' recommendation. This was the first failed attempt at 'harmonisation' of Australian surrogacy laws.
62. The prohibition extended to the provision of all 'technical' or 'professional' services, thus also encompassing legal advice and counselling or psychological assistance: Substitute Parent Agreements Act 1994 (ACT) s 8;
63. Surrogacy Contracts Act 1993 (Tas) s 5 (both Acts have now been repealed).
64. see National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2007) 57 .
65. Queensland Report, above n 4, 45. More providers have appeared in NSW in recent years, including IVF Australia, Next Generation Fertility and Fertility East.
66. Canberra Fertility Centre, Surrogacy Information Booklet (2011) 3 .
67. See the comments of Mark Bowman, Medical Director of Sydney IVF, in New South Wales Report, above n 4, 60-1, 84;
68. Sydney IVF, How We Can Help: Surrogacy (2011) .
69. See, eg, Queensland Report, above n 4, 55 (recommendation 10);
70. New South Wales Report, above n 4, 4, 91-3
71. where arguments against genetic surrogacy were noted but no recommendation was made. It was also influential that the one reported dispute in surrogacy in Australia involved a genetic surrogacy arrangement: Re Evelyn (1998) 23 Fam LR 53.
72. ART parentage rules accord legal parentage to the birth mother and her consenting partner regardless of whether either is the genetic parent: see generally Jenni Millbank, 'De Facto Relationships, Same-Sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms' (2009) 23 Australian Journal of Family Law 160, 171-6.
73. Under Commonwealth law, intended parents can apply for residence and parental responsibility orders because the ability to apply for and be granted such orders is not limited to legal parents - orders may be granted in favour of 'any other person concerned with the care, welfare or development of the child': Family Law Act 1975 (Cth) s 65C (c).
74. See, eg, Adoption Act 1994 (WA) s 8
75. discussed in Western Australia, Parliamentary Debates, Legislative Council, 13 November 2007, 6924 (Giz Watson).
76. Adoption Act 2000 (NSW) s 87 (2) (a);
77. Adoption Act 1984 (Vic) s 122 (2).
78. Note that in 1997 the New South Wales Law Reform Commission specifically recommended the continued exclusion of surrogacy arrangements from adoption law: New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 488 (recommendations 107-8).
79. See, eg, the submissions of the NSW Department of Community Services opposing adoption in Re A and B (2000) 26 Fam LR 317
80. and Re D and E (2000) 26 Fam LR 310.
81. See also the attempt of a local authority to make twins born through surrogacy wards of the state in an early English case: Re W [1991] Fam Law 180.
82. See, eg, Adoption Act 2000 (NSW) ss 10-11.
83. David Norman, Submission No 18 to Standing Committee on Law and Justice, Inquiry into Legislation on Altruistic Surrogacy in NSW, 25 September 2008.
84. Family Law Act 1975 (Cth) s 33B.
85. Such applications may be brought by those who are not legal parents: at s 65C (c). Similarly, the Family Court of Western Australia may make orders in favour of someone other than a parent: Family Court Act 1997 (WA) s 85.
86. See, eg, Craig Lind and Tom Hewitt, 'Law and the Complexities of Parenting: Parental Status and Parental Function' (2009) 31 Journal of Social Welfare and Family Law 391.
87. See generally Liz Short, '"It Makes the World of Difference": Benefits for Children of Lesbian Parents of Having Their Parents Legally Recognised as Their Parents' (2007) 3 Gay and Lesbian Issues and Psychology Review 5.
88. While other inquiries produced reports in the intervening years - see, eg, Legislative Assembly Select Committee on the Human Reproductive Technology Act 1991, Parliament of Western Australia, Report (1999);
89. See, eg, PJ v DOCS [1999] NSWSC 340 (6 April 1999);
90. Re an Application Pursuant to the Births Deaths and Marriages Registration Act 1997 [2000] ACTSC 39 (5 May 2000). The latter case led to the Artificial Conception Amendment Act 2000 (ACT) and is highlighted as the genesis of the 2003 ACT inquiry
91. ACT Report, above n 26, 2-4.
92. See also Re Michael (Surrogacy Arrangements) (2009) 41 Fam LR 694.
93. See, eg, W: Re Adoption (1998) 23 Fam LR 538;
94. Re A and B (2000) 26 Fam LR 317;
95. Re D and E (2000) 26 Fam LR 310.
96. See, eg, Re Mark (2004) 31 Fam LR 162;
97. Raines and Curtin [2007] FamCA 1295 (15 October 2007);
98. Cadet and Scribe [2007] FamCA 1498 (5 November 2007);
99. King and Tamsin [2008] FamCA 309 (28 April 2008).
100. See, eg, Re an Application Pursuant to the Births Deaths and Marriages Registration Act 1997 [2000] ACTSC 39 (5 May 2000) [14] (Crispin J);
101. Re Mark (2004) 31 Fam LR 162, 174 (Brown J).
102. see, eg, Katharine Murphy, 'The Senator, the Surrogate and the New Baby', The Age (Melbourne), 7 November 2006, 1;
103. Phillip Coorey, 'Surrogate Mothers for MP's Baby', The Sydney Morning Herald (Sydney), 7 November 2006, 1;
104. Sue Dunlevy, 'I'll Carry Your Baby - Surrogate Mother Volunteered to Help Senator', The Daily Telegraph (Sydney), 8 November 2006, 7.
105. see Jenni Millbank, 'From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of "New" Surrogacy in Australia' (forthcoming).
106. SCAG Paper, above n 5, 2.
107. See, eg, VLRC Report, above n 4, 5, where it is stated that '[t]he commission is also requested to consider the meaning and efficacy of sections 8, 20 and 59 [of the Infertility Treatment Act 1995 (Vic)] in relation to altruistic surrogacy, and clarification of the legal status of any child born of such an arrangement' (emphasis added).
108. SCAG Paper, above n 5, 4-5.
109. Queensland Report, above n 4, 23.
110. The Surrogate Parenthood Act 1988 (Qld) s 3 imposed a maximum penalty of 100 penalty units or three years' imprisonment for entering into, or offering to enter into, a surrogacy arrangement, whether in Queensland or elsewhere (if the persons involved were ordinarily resident in Queensland at the time the event occurred).
111. The Queensland Report noted five prosecutions, with 'most' charges dismissed and one good behaviour bond recorded
112. Queensland Report, above n 4, 9.
113. Department of Justice (Tas), Proposed Tasmanian Surrogacy Bill: Exposure Bill, 1 .
114. See Jenni Millbank, 'Unlikely Fissures and Uneasy Resonances: Lesbian Co-Mothers, Surrogate Parenthood and Fathers' Rights' (2008) 16 Feminist Legal Studies 141.
115. See also Millbank, 'De Facto Relationships', above n 38.
116. Millbank, 'Unlikely Fissures and Uneasy Resonances', above n 60, 161-4.
117. The original UK legislation regulating ART was the Human Fertilisation and Embryology Act 1990 (UK) c 37.
118. This Act provided for parental orders in surrogacy at s 30, although that provision did not become operative until 1994. The provisions regulating surrogacy are discussed in Eric Blyth, 'Surrogacy Arrangements in Britain: Policy and Practice Issues for Professionals' (1998) 1 Human Fertility 3.
119. See generally Steven H Snyder and Mary Patricia Byrn, 'The Use of Pre-Birth Parentage Orders in Surrogacy Proceedings' (2005) 39 Family Law Quarterly 633.
120. Human Fertilisation and Embryology Act 2008 (UK) c 22, s 54.
121. This provision replaced Human Fertilisation and Embryology Act 1990 (UK) c 37, s 30
122. which was repealed by Human Fertilisation and Embryology Act 2008 (UK) c 22, s 57 (3).
123. Human Fertilisation and Embryology Act 2008 (UK) c 22, s 54.
124. see Surrogacy Act 2008 (WA) ss 21 (3) - (4). Tasmania uncritically duplicated this provision: Surrogacy Bill 2011 (Tas) cl 14 (5).
125. see, eg, Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) (9 December 2008) [12] (Hedley J) - its restrictions are minor in comparison with much of the Australian law.
126. Parentage Act 2004 (ACT) pt 2 div 2.5.
127. This Act extended more limited ad hoc provisions that had been in place since 2000, as recommended by the ACT Report, above n 26.
128. Parentage Act 2004 (ACT) s 25 (3).
129. See Human Fertilisation and Embryology Act 2008 (UK) c 22, s 54.
130. This provision became operative on 6 April 2009: Human Fertilisation and Embryology Act 2008 (Commencement No 1 and Transitional Provisions) Order 2009 (UK) SI 2009/479, O 6.
131. Parentage Act 2004 (ACT) s 24 (b). In addition, the birth mother's partner cannot be a sperm or egg donor in the surrogacy.
132. The Explanatory Statement notes the requirements that there be no genetic connection between the birth mother and child and that conception occur within the jurisdiction, but does not explain the reasons for them: Explanatory Statement, Parentage Bill 2003 (ACT) 8. Similarly, reference to requirements in parliamentary debates include no further explanation: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 February 2004, 122-6 (Jon Stanhope, Chief Minister).
133. See Canberra Fertility Centre, above n 29.
134. Parentage Act 2004 (ACT) s 26 (3) (d);
135. cf Human Fertilisation and Embryology Act 1990 (UK c 37, s 30 (7).
136. Human Fertilisation and Embryology Act 1990 (UK) c 37, s 30 (7) (emphasis added).
137. Family Relationships Act 1975 (SA) s 10HB (2) (c);
138. Status of Children Act 1974 (Vic) s 20 (1) (a).
139. See, eg, Surrogacy Act 2010 (NSW) s 5, where there is no consideration of whether the birth mother or her spouse is a genetic parent of the surrogate child. Note that Victoria excludes genetic surrogacy from licensed ART, but parents may still be eligible to have a Patient Review Panel authorise a non-complying surrogacy arrangement where the 'circumstances of the proposed surrogacy arrangement are exceptional'
140. Assisted Reproductive Treatment Act 2008 (Vic) s 41.
141. Parentage Act 2004 (ACT) pt 2 div 2.5;
142. Surrogacy Act 2010 (Qld) ch 3;
143. Family Relationships Act 1975 (SA) pt 2B div 3;
144. Surrogacy Act 2010 (NSW) pt 3 div 2;
145. Assisted Reproductive Technology Act 2007 (NSW) s 15A, pt 2 div 3;
146. Surrogacy Act 2008 (WA) ss 16-17;
147. Human Reproductive Technology Act 1991 (WA) s 23.
148. Assisted Reproductive Treatment Act 2008 (Vic) ss 39-43.
149. Status of Children Act 1974 (Vic) ss 22-3.
150. Surrogacy Act 2010 (NSW) s 27 (1);
151. Surrogacy Act 2010 (Qld) s 22 (2) (f) (this age requirement also applies to the birth mother's spouse, if any);
152. Assisted Reproductive Treatment Act 2008 (Vic) s 40 (1) (b);
153. Status of Children Act 1974 (Vic) s 23 (2) (a);
154. Surrogacy Act 2008 (WA) s 17 (a) (i). The proposed age is 21 in the Tasmanian Bill: Surrogacy Bill 2011 (Tas) cl 14 (2) (b).
155. However, this may be raised to 25 by the upper house: see the comments in Tasmania, Parliamentary Debates, Legislative Council, 14 June 2011, 14-15 (James Wilkinson), 26 (Ivan Dean), 26 (Douglas Parkinson, Leader of Government Business in the Legislative Council).
156. Assisted Reproductive Treatment Act 2008 (Vic) s 40 (1) (ac);
157. Surrogacy Act 2008 (WA) s 17 (a) (ii).
158. Parentage Act 2004 (ACT) s 24 (b);
159. Assisted Reproductive Treatment Act 2008 (Vic) s 40 (1) (ab).
160. Surrogacy Act 2010 (Qld) s 22 (2) (g) (i);
161. Surrogacy Act 2008 (WA) s 19 (1) (a).
162. In NSW, both intended parents must be over 18, although if they are under 25 they face additional requirements: Surrogacy Act 2010 (NSW) ss 28-9.
163. Parentage Act 2004 (ACT) s 24 (c);
164. Family Relationships Act 1975 (SA) s 10HA (2) (a) (ii). However, one intended parent can apply for the order in certain circumstances, such as if their partner has died or they have separated after the arrangement was entered into but prior to the application.
165. Surrogacy Act 2008 (WA) ss 19 (1) (b), (2). This reflects the approach to infertility and eligibility in WA, which centres on a woman requiring treatment (since 2002 she does not need to be in a heterosexual relationship)
166. see the discussion about providing certainty to intended parents in Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 2007, 4765-78.
167. See also Western Australia, Parliamentary Debates, Legislative Council, 19 June 2008, 4173-82. There were numerous unsuccessful attempts to amend the Bill through 2007 and 2008 in order to exclude single women from being eligible to be intended parents.
168. Family Relationships Act 1975 (SA) s 10HA (2) (b) (iii).
169. Surrogacy Act 2010 (NSW) s 30;
170. Surrogacy Act 2010 (Qld) ss 14, 22 (2) (d);
171. Family Relationships Act 1975 (SA) s 10HA (2) (b) (v);
172. Assisted Reproductive Treatment Act 2008 (Vic) s 40 (1) (a);
173. Surrogacy Act 2008 (WA) ss 17 (d), 19 (1) - (3).
174. Parentage Act 2004 (ACT) s 24 (e);
175. Surrogacy Act 2010 (NSW) s 32;
176. Surrogacy Act 2010 (Qld) s 22 (2) (g) (ii);
177. Family Relationships Act 1975 (SA) s 10HB (2) (b);
178. Surrogacy Bill 2011 (Tas) cl 14 (2) (e) (ii);
179. Status of Children Act 1975 (Vic) s 20 (1) (b);
180. Surrogacy Act 2008 (WA) s 19 (1) (a).
181. Surrogacy Act 2010 (Qld) s 23 (2);
182. Family Relationships Act 1975 (SA) s 10HB (10).
183. Parentage Act 2004 (ACT) s 24 (d);
184. Family Relationships Act 1975 (SA) s 10HA (2) (viii) (B) (unless both intending parents are infertile or should not be a genetic parent of the child for a medical reason: at ss 10HA (2) (viii) (B), (5)).
185. Surrogacy Act 2010 (NSW) s 34;
186. Surrogacy Act 2010 (Qld) s 22 (2) (e) (v);
187. Family Relationships Act 1975 (SA) s 10HA (6);
188. Surrogacy Act 2008 (WA) s 17 (b). It appears likely that Tasmania will also include this requirement, as the government has indicated its intention to move an amendment to the current Bill to require writing: Tasmania, Parliamentary Debates, Legislative Council, 14 June 2011, 10 (Douglas Parkinson, Leader of Government Business in the Legislative Council).
189. Family Relationships Act 1975 (SA) s 10HA (6) (c).
190. Parentage Act 2004 (ACT) s 23;
191. Surrogacy Act 2010 (NSW) s 24;
192. Surrogacy Act 2010 (Qld) ss 7(1), 22 (2) (e) (iv);
193. Family Relationships Act 1975 (SA) s 10HA (2) (a) (i);
194. Assisted Reproductive Treatment Act 2008 (Vic) s 3;
195. Surrogacy Act 2008 (WA) ss 3, 17 (e).
196. Counselling is a relevant consideration but not a mandatory requirement in the ACT: Parentage Act 2004 (ACT) s 26 (3) (e).
197. See also Surrogacy Act 2010 (NSW) s 35;
198. Surrogacy Act 2010 (Qld) s 22 (2) (e) (ii);
199. Family Relationships Act 1975 (SA) ss 10HA (2) (vi) - (vii), (3);
200. Assisted Reproductive Treatment Act 2008 (Vic) ss 40 (1) (c), (2), 43;
201. Status of Children Act 1974 (Vic) s 23 (2) (b);
202. Surrogacy Act 2008 (WA) s 17 (c) (i);
203. Surrogacy Regulations 2009 (WA) reg 4.
204. Surrogacy Act 2010 (NSW) s 36;
205. Surrogacy Act 2010 (Qld) ss 22 (2) (e), 30;
206. Family Relationships Act 1975 (SA) s 10HA (6) (c);
207. Assisted Reproductive Treatment Act 2008 (Vic) ss 40 (1) (c), 43 (c);
208. Status of Children Act 1974 (Vic) s 23 (2) (b) (iii);
209. Surrogacy Act 2008 (WA) s 17 (c) (iii);
210. Surrogacy Regulations 2009 (WA) reg 5 (2) (f).
211. NSW requires the counsellor's opinion as to whether the parentage transfer is in the child's best interests and the reasons for that opinion: Surrogacy Act 2010 (NSW) ss 17 (1) - (2).
212. Queensland requires a counsellor's report supporting parentage transfer: Surrogacy Act 2010 (Qld) ss 22 (2) (i), 32 (although this requirement can be dispensed with in exceptional circumstances: s 23 (2)). SA requires a statement by the counsellor that the surrogacy agreement will not jeopardise a resulting child's welfare: Family Relationships Act 1975 (SA) ss 10HA (2) (vii), (3) (b) (i) - (ii).
213. See also Assisted Reproductive Treatment Act 2008 (Vic) ss 40 (2) (a), 43 (a) - (b).
214. Surrogacy Act 2008 (WA) s 17 (c).
215. Parentage Act 2004 (ACT) s 24 (a);
216. Family Relationships Act 1975 (SA) s 10HA (2) (b) (viii) (A);
217. Status of Children Act 1975 (Vic) s 20 (1) (a).
218. A parentage order is not possible without prior approval of the arrangement by the Western Australian Reproductive Technology Council ('RTC'): Surrogacy Act 2008 (WA) s 16 (1).
219. Such approval requires, among other things, counselling by a counsellor who must also be approved by the RTC: Surrogacy Regulations 2009 (WA) reg 3. Both the RTC website and the approval forms direct participants to designated clinic surrogacy coordinators (which clinics are required to have by the Surrogacy Directions 2009 (WA) cl 8) - it is not apparent that the form may be submitted without the involvement of a clinic. For example, the RTC website states that one may '[v]iew the application forms required to be submitted to the Council by the clinic surrogacy coordinator'
220. RTC, Consumer Information (2010) (emphasis added) . The application form for arranged parents commences with the statement: 'This form is to be completed by the applicant (s) with the assistance of the Clinic Surrogacy Co-ordinator'. Nonetheless, the RTC has confirmed that it is able to approve an arrangement that involved sex and took place outside the jurisdiction if the parties undertook all compliance measures in advance within WA: email from Nyaree Jacobsen, Acting Executive Officer, RTC, to Jenni Millbank, 22 November 2010.
221. Assisted Reproductive Treatment Act 2008 (Vic) s 39;
222. Surrogacy Act 2008 (WA) s 16 (1).
223. The Queensland and NSW inquiries also recommended this, but these recommendations were not implemented: Queensland Report, above n 4, 62 (recommendation 12);
224. New South Wales Report, above n 4, 101 (recommendation 5).
225. Surrogacy Act 2008 (WA) ss 21 (2) (f), 22.
226. Assisted Reproductive Treatment Act 2008 (Vic) s 42. Victoria requires a criminal background check on all parties undertaking ART; for surrogacy, this means the intended parents, birth mother and her partner, if any.
227. Western Australia, Parliamentary Debates, Legislative Assembly, 2 December 2008, 761 (Andrew Waddell).
228. See SCAG Paper, above n 5, 2.
229. Queensland Report, above n 4, 30.
230. Notably, Queensland did not introduce an approval panel or a mandatory 'cooling-off' period recommended in the Queensland Report, above n 4, 60-1.
231. See, eg, Queensland Report, above n 4, 11.
232. Surrogate Parenthood Act 1988 (Qld) s 3 (2) (b).
233. Surrogacy Act 2010 (Qld) s 23;
234. Surrogacy Act 2010 (Qld) s 23 (2).
235. See, eg, Surrogacy Act 2010 (NSW) s 7;
236. Surrogacy Act 2010 (Qld) s 11;
237. Surrogacy Act 2008 (WA) s 6.
238. Surrogacy Act 2010 (NSW) s 6 (2);
239. Surrogacy Act 2010 (Qld) s 15 (2);
240. Surrogacy Act 2008 (WA) s 7 (3).
241. Parentage Act 2004 (ACT) s 45;
242. Surrogacy Act 2010 (Qld) s 54.
243. In both the ACT and Queensland, the penalties post-reform remain identical to those pre-reform: Substitute Parent Agreements Act 1994 (ACT) s 5
244. cf Parentage Act 2004 (ACT) s 41 (100 penalty units or imprisonment for one year, or both);
245. Surrogate Parenthood Act 1988 (Qld) s 3
246. cf Surrogacy Act 2010 (Qld) s 56 (100 penalty units or imprisonment for three years).
247. Surrogacy Act 2010 (NSW) s 11. The penalty for paid surrogacy for an individual is 1000 penalty units or imprisonment for two years, or both: at s 8.
248. See also Family Law Regulations 1984 (Cth) reg 12CAA. At the time of writing all of the state and territory laws except those of Tasmania had been prescribed.
249. See, eg, Child Support (Assessment) Act 1989 (Cth) s 5;
250. Australian Citizenship Act 2007 (Cth) s 8.
251. th ed, 2002) 286-97.
252. See, eg, Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) (9 December 2008) (discussed in detail below in Part VII). In that case the intended parents had made extensive inquiries on the Home Office website in the UK, received further advice from bodies in the UK, and visited a hospital in the Ukraine. They had also sought and been given both English and Ukrainian legal advice. No-one had advised them that they might be unable to re-enter the UK with the children because they lacked legal parentage.
253. For errors relating to the payment of 'reasonable expenses' and payment for 'lost earnings', see Re S (Parental Order) [2009] EWHC 2977 (Fam) (9 November 2009);
254. Re C [2002] 1 FLR 909;
255. C and C [1997] Fam Law 226.
256. Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam) (28 November 2007) involved a mistake as to the domicile requirement for parentage orders.
257. In Re L (A Child) (Surrogacy: Parental Order) [2010] EWHC 3146 (Fam) (8 December 2010) [8] (Hedley J) it is noted that the parents received mistaken advice that they were ineligible for surrogacy within the UK on the basis of age.
258. See, eg, a report of incorrect legal advice where intended parents in the ACT were told that they did not require a parentage transfer as they were both genetic parents: Carol Nader, 'Bearing the Ultimate Gift', The Age (Melbourne), 8 May 2010, 10. In state law it is abundantly clear that male genetic parents in surrogacy are not legal parents if conception was achieved other than through sex. While there was some ambiguity about this status in the FLA 1975 (Cth) prior to 2008, the issue has since been clarified by legislative amendment through the insertion of ss 60HA-60HB.
259. See Re Michael: Surrogacy Arrangements (2009) 41 Fam LR 694
260. discussed in Millbank, 'De Facto Relationships', above n 38, 191-2.
261. It does not. As in the UK, the laws of parentage in the parent's jurisdiction of residence (not the jurisdiction of the child's birth) prevail. See, eg, Re Mark (2004) 31 Fam LR 162, 165 (Brown J), where it was noted that FLA s 69R provided for a person to be presumed to be the parent of a child if that person's name was on a birth certificate of a 'prescribed overseas jurisdiction', but that no such jurisdiction had been prescribed.
262. Surrogacy Act 2010 (Qld) s 23 (2).
263. In Victoria there is a 'dual track', so that the requirements differ depending on whether licensed ART is used. It is a requirement of both the ART and parentage legislation that the birth mother is over 25, but the ART legislation provides for a Patient Review Panel which can authorise noncompliant arrangements in exceptional circumstances: Assisted Reproductive Treatment Act 2008 (Vic) ss 40 (1) (b), 41;
264. Status of Children Act 1974 (Vic) s 23 (2).
265. Surrogacy Act 2010 (NSW) ss 18(2), 22 (1);
266. Surrogacy Act 2010 (Qld) s 23 (2);
267. Surrogacy Bill 2011 (Tas) cl 14 (3) (a);
268. Surrogacy Act 2008 (WA) ss 21 (3) (a), (b).
269. Surrogacy Act 2008 (WA) s 21 (3) - (4).
270. Surrogacy Act 2010 (NSW) s 16 (3);
271. Surrogacy Act 2010 (Qld) s 23 (2);
272. Surrogacy Bill 2011 (Tas) cl 13 (2);
273. Status of Children Act 1974 (Vic) s 20 (3);
274. Surrogacy Act 2008 (WA) s 20 (3).
275. In addition, SA transitional provisions providing eligibility for parentage transfer for existing children were originally limited to those under the age of five at the time the legislation came into operation: Statutes Amendment (Surrogacy) Act 2009 (SA) sch 1 cl 1 (4).
276. This meant that the child of one of the chief campaigners for the law - who was then aged five years and two months - was excluded: Liz Walsh, 'Heartache for Mum - Surrogacy Law Blow', Sunday Mail (Adelaide), 16 May 2010, 25.
277. Fortunately, this was remedied by the Statutes Amendment (Surrogacy) Amendment Act 2010 (SA) pt 2, which extends the age of the child to 10. Note, however, that this amendment still withholds discretion from the court.
278. BLH v SJW [2010] QDC 439 (28 September 2010).
279. Because the arrangement had been made prior to the commencement of the Surrogacy Act 2010 (Qld), the case involved the operation of transitional provisions allowing for waiver of numerous procedural requirements.
280. Yasmine Phillips and Debbie Guest, 'Surrogacy Laws Bring Hope after Long Wait', The West Australian (Perth), 27 June 2008, 11.
281. After the passage of the legislation, the Health Minister gave lower estimates, stating that he expected 10 couples to undertake surrogacy applications in the first year the process was offered, with five to eight applications in subsequent years: Yasmine Phillips, 'Laws Make Surrogacy "Close to Impossible"', The West Australian (Perth), 31 March 2009, 14.
282. Natasha Boddy, 'WA Gets First Surrogate Mother Bid', The West Australian (Perth), 7 August 2010, 15.
283. Peta Rule, 'Support, But No Surrogacy For Kylie', The West Australian (Perth), 22 January 2007, 13;
284. Anthony Deceglie, 'Who Will Have Our Baby', The Sunday Times (Perth), 11 April 2010, 16.
285. Anthony Deceglie, '25yo Limit Stalls Births', The Sunday Times (Perth), 20 June 2010, 40.
286. See, eg, the statement by the VLRC that 'altruistic surrogacy... should be regulated with great care... [and] careful scrutiny. Safeguards are necessary to protect surrogates, commissioning parents and children': VLRC Report, above n 4, 168.
287. See, eg, Kerry Petersen et al, 'Assisted Reproductive Technologies: Professional and Legal Restrictions in Australian Clinics' (2005) 12 Journal of Law and Medicine 373, 383, where the authors detail how fertility services in Victoria responded to legislative restrictions on access to ART by actively facilitating treatment elsewhere.
288. In 2008 the Canberra Fertility Centre reported that it had accepted 35 Queensland couples for IVF surrogacy: Queensland Report, above n 4, 11.
289. Second wave inquiries received submissions specifically detailing interstate travel for ART in relation to surrogacy: see, eg, South Australian Report, above n 4, 26-7;
290. Queensland Report, above n 4, 11. This included visits to clinics in SA that provide pre-conception services, for example blood tests, to enable embryo transfers to take place in the ACT and NSW.
291. Indeed Philip Ruddock, the former federal Attorney-General (who had previously been involved in federal government attempts to prevent unmarried women from having the right to access to ART), argued for national laws on surrogacy in 2006 with the claim that 'it is not satisfactory that people are forced to effectively forum-shop... This can be distressing for people who have already faced difficulties starting a family': quoted in VLRC Report, above n 4, 166 (emphasis added).
292. VLRC Report, above n 4, 171.
293. SCAG Paper, above n 5, 14.
294. Australian Families Through Gestational Surrogacy, Statistics on Babies Born to Australians (2011) .
295. See, eg, Tigerlilycat, 'Australia India Surrogacy Advocates' on Tigerlilycat, Made in India (26 January 2009)
296. Amani (Meg), 'Australian Families Through Gestational Surrogacy' on Amani (Meg), Amani and Bob's Indian Surrogacy (13 March 2011)
297. Surrogacy - India, Essential Baby . Note also Australian Families Through Gestational Surrogacy, above n 165: of 269 surrogate births to Australian intended parents in 2010-11, 179 were from clinics and agencies in India, 45 from Thailand, 36 from the US and nine from Canada. This may reflect the self-selection of facilities contacted for the survey. Respondents comprised seven clinics and agencies from India, one clinic from Thailand, six agencies from the US and one agency from Canada.
298. Australian High Commission (India), Children Born through Surrogacy Arrangements Applying for Australian Citizenship By Descent .
299. Note also that of the reported 'altruistic' domestic arrangements where no payment was made to the surrogate, intended parents indicated that they incurred costs which ranged from $30 000 to $90 000. While the bulk of such payments were for private fertility treatment (because public funding is not granted to IVF treatment for surrogacy in Australia), they also included legal expenses of between $20 000 and $50 000. See, eg, Norman, above n 44; Joel Gibson, 'Complex Surrogacy Laws to Be Untangled', The Sydney Morning Herald (Sydney), 8 May 2010, 15.
300. Anita Stuhmcke, 'The Criminal Act of Commercial Surrogacy in Australia: A Call for Review' (2011) 18 Journal of Law and Medicine 601.
301. This argument was made as long ago as 1990 in NBCC, Surrogacy - Report 1, above n 18, 9-10 [2.4.4.4]-[2.4.4.9]. There is a lack of clarity around, for example, what 'reasonable expenses' entail and whether they can include wage and risk-based forms of compensation.
302. As one intended mother stated in the media survey, 'I would never expect someone to carry a baby for me and not be compensated for pain and suffering. People still die in child birth': Bruce McDougall, 'Pay Surrogate Mums: New Plan to Help Couples without Kids', The Daily Telegraph (Sydney), 2 August 2008, 4.
303. See, eg, Stephen Wilkinson, 'The Exploitation Argument against Commercial Surrogacy' (2003) 17 Bioethics 169, 184-7;
304. Eric Blyth and Claire Potter, 'Paying for It? Surrogacy, Market Forces and Assisted Conception' in Rachel Cook, Shelley Day Sclater and Felicity Kaganas (eds), Surrogate Motherhood: International Perspectives (Hart Publishing, 2003) 227, 232-3.
305. See also the argument of Anne Jequier, an IVF doctor quoted in Denise Rice, 'Surrogacy a Legal Maze', The Sunday Times (Perth), 17 June 2007, 68: Everyone gets their knickers so much in a twist about commercial surrogacy, but... I believe that money is perhaps one of the healthiest motivators you can have for doing most things. One of the things that we are starting to see is some really unpleasant pressure being put on close friends and relatives to act as surrogates because commercial surrogacy is banned.
306. See, eg, Jennifer Damelio and Kelly Sorensen, 'Enhancing Autonomy in Paid Surrogacy' (2008) 22 Bioethics 269, 275-7; Wilkinson, above n 174, 168.
307. See, eg, Jason K M Hanna, 'Revisiting Child-Based Objections to Commercial Surrogacy' (2010) 24 Bioethics 341.
308. See, eg, Jennifer A Parks, 'Care Ethics and the Global Practice of Commercial Surrogacy' (2010) 24 Bioethics 333;
309. Damien W Riggs and Clemence Due, 'Gay Men, Race Privilege and Surrogacy in India' (2010) 22 Outskirts ;
310. Jennifer Rimm, 'Booming Baby Business: Regulating Commercial Surrogacy in India' (2009) 30 University of Pennsylvania Journal of International Law 1429;
311. Ruby L Lee, 'New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation' (2009) 20 Hastings Women's Law Journal 275;
312. Amrita Pande, 'Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker' (2010) 35 Signs 969.
313. SCAG Paper, above n 5, 14.
314. New South Wales, Parliamentary Debates, Legislative Assembly, 10 November 2010, 27 599.
315. For example, a Queensland couple, 'Dee' and 'Rob', undertook paid surrogacy in the US and were able to conceal the circumstances of the birth because they had recently moved house: Kay Dibben, 'Surrogacy's Problem Child', The Sunday Mail (Brisbane), 22 June 2008, 62. Another Queensland couple, Dana and Ben Deverson, undertook paid surrogacy in the US (even though Dana was a former police officer).
316. When Dana then conceived naturally, she found it 'hard to explain' how her children are seven months apart in age: Kay Dibben, 'Mystery Woman Brought Us Joy', The Sunday Mail (Brisbane), 18 January 2009, 17;
317. Ainsley Pavey, 'Naturally, a Miracle for Couple "Unable to Conceive"', The Sunday Mail (Brisbane), 22 April 2007, 39.
318. The only contested surrogacy arrangement to go before the courts in Australia to date involved intended parents who resided in Queensland (and an agreement which was made in Queensland): Re Evelyn (1998) 23 Fam LR 53. The case was heard before the Family Court in 1997, and then the Full Court of the Family Court on appeal in 1998 in Brisbane. None of the parties to the arrangement were charged with an offence under Queensland law.
319. See also two cases concerning paid surrogacy in Thailand where the intended parents resided in Queensland: Collins and Tangtoi [2010] FamCA 878 (9 August 2010);
320. Dennis and Pradchaphet [2011] FamCA 123 (22 February 2011).
321. Note, however, that in two recent cases concerning paid surrogacy in Thailand, Watts J referred his judgments to the Office of the Director of Public Prosecutions in Queensland: Findlay and Punyawong [2011] FamCA 503 (30 June 2011);
322. Dudley and Chedi [2011] FamCA 502 (30 June 2011).
323. BLH v SJW [2010] QDC 439 (28 September 2010).
324. See above nn 152-155 and accompanying text; Kay Dibben, 'I'll Carry Your Child - Couples Wait for New Law', The Sunday Mail (Brisbane), 25 January 2009, 28;
325. Larry Schwartz, 'Dads Double Their Brood', The Age (Melbourne), 24 January 2008, 15;
326. Tamara McLean, 'Gays Flock to US for Babies', Herald Sun (Melbourne), 2 July 2008, 4.
327. See, eg, the evidence detailed in the report used as the basis for the UK changes: Human Fertilisation and Embryology Authority, One Child at a Time: Reducing Multiple Births after IVF - Report of the Expert Group on Multiple Births after IVF (October 2006) . In the foreword, the report's Chair, Peter Braude, states, at 3: Multiple pregnancy is a major cause of stillbirth, neonatal death and disability. Compared with singletons, twins are four times more likely to die in pregnancy, seven times more likely to die shortly after birth, ten times more likely to be admitted to a neonatal special care unit, and have six times the risk of cerebral palsy. Maternal morbidity and mortality is also increased due to late miscarriage, high blood pressure, pre-eclampsia, and haemorrhage amongst others.
328. Annette Sharp, 'Charmyne's Indian Baby', The Daily Telegraph (Sydney), 9 November 2010, 16.
329. Wilkie and Mirkja [2010] FamCA 667 (9 July 2010);
330. Collins and Tangtoi [2010] FamCA 878 (9 August 2010);
331. O'Connor and Kasemsarn [2010] FamCA 987 (29 October 2010);
332. Findlay and Punyawong [2011] FamCA 503 (30 June 2011);
333. Ronalds and Victor [2011] FamCA 389 (13 May 2011).
334. Dudley and Chedi [2011] FamCA 502 (30 June 2011)
335. and Dennis and Pradchaphet [2011] FamCA 123 (22 February 2011) are two judgments concerning the same family. There were in fact three children born to the intended parents through two simultaneous arrangements, one child to Ms Pradchaphet and twins to another woman, Ms Chedi. In contrast, of the four decisions released concerning domestic arrangements, none involved a multiple birth.
336. See, eg, policy changes made in the UK by the Human Fertilisation and Embryology Agency from 2005 onwards after an expert review of the risks: for an outline of these changes, see Human Fertilisation and Embryology Authority, Multiple Births and Single Embryo Transfer Review (7 April 2009) .
337. Reproductive Technology Accreditation Committee, Fertility Council Australia, Code of Practice for Assisted Reproductive Technology Units (2010) 11 .
338. See Nisha Satkunarajah, 'Legal Case Brings France's Surrogacy Laws into Focus' [2011] (604) BioNews
339. Nisha Satkunarajah, 'Surrogate Child Denied German Passport' [2011] (606) BioNews .
340. See Re K (Minors: Foreign Surrogacy) [2010] EWHC 1180 (Fam) (28 May 2010) [6] (Hedley J).
341. For a general overview of the application of UK immigration law to inter-country surrogacy, see UK Border Agency, Inter-Country Surrogacy and the Immigration Rules (1 June 2009) .
342. Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (UK) SI 2010/985;
343. see also Explanatory Memorandum, Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (UK) SI 2010/985, 4 [8.7].
344. [2008] EWHC (Fam) 3030 (9 December 2008).
345. At the time, this specification was contained in Human Fertilisation and Embryology Act 1990 (UK) c 37, s 30 (7).
346. It is now contained in Human Fertilisation and Embryology Act 2008 (UK) c 22, s 54 (8).
347. See C and C [1997] Fam Law 226 (25 June 1996);
348. Re C [2002] 1 FLR 909.
349. X and Y [2008] EWHC 3030 (9 December 2008) [21]-[22].
350. X and Y [2008] EWHC 3030 (9 December 2008) [24] (Hedley J).
351. Re L (A Minor) [2010] EWCH 3146 (Fam) (8 December 2010) [10].
352. In the absence of a legal connection to either intended parent, intended parents could be in breach of the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, opened for signature 29 May 1993, 1870 UNTS 167 (entered into force 1 May 1995) ('Hague Convention') if they attempt to remove the child from the country of birth to be adopted in Australia without complying with the requirements for inter-country adoption: at ch 2. New Zealand has issued advice that, where a child is born as a result of overseas surrogacy in a Hague Convention signatory, an inter-country adoption is the only way to create a legal parental relationship with the child: Department of Internal Affairs, Child, Youth and Family and Immigration (NZ), International Surrogacy .
353. The Australian Citizenship Instructions, which are issued by the Department of Immigration and Citizenship to provide guidance on policy in relation to the Australian Citizenship Act 2007 (Cth)
354. also note this result of the Hague Convention: Department of Immigration and Citizenship, Australian Citizenship Instructions (ACIs) (1 January 2011) 51 ('January 2011 ACIs'). However, it is far from clear that the Hague Convention is applicable if the child is already the child of the intended parents under the law of the sending country and no adoption will be attempted in the receiving country. Article 2 of the Hague Convention provides that (emphasis added): (1) The Convention shall apply where a child habitually resident in one Contracting State ('the State of origin') has been, is being, or is to be moved to another Contracting State ('the receiving State') either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin. (2) The Convention covers only adoptions which create a permanent parent-child relationship.
355. See also FLA s 60HA; Family Law Regulations 1984 (Cth) regs 12C-12CA.
356. See Family Law Regulations 1984 (Cth) reg 12CAA.
357. Department of Immigration and Citizenship, Australian Citizenship Instructions (ACIs) (1 July 2009) 31 ('July 2009 ACIs'). The instructions continue: 'Section 8 of the Act applies to couples who use artificial conception procedures or surrogacy arrangements occurring under a prescribed law of an Australian state or territory to become parents to a child.'
358. Department of Immigration and Citizenship, Australian Citizenship Instructions (ACIs) (1 May 2010) 49 .
359. The instructions provide: 'Some circumstances are not covered by section 8. These include children born to single women as a result of artificial conception procedures, and children who are born overseas as a result of a surrogacy arrangement.' In the instructions issued in September 2010 and January 2011, this text was omitted and s 8 is only addressed under the heading 'Children born in Australia as a result of a surrogacy arrangement', and then under the following heading, 'Children born overseas as a result of a surrogacy arrangement': Department of Immigration and Citizenship, Australian Citizenship Instructions (ACIs) (17 September 2010) 49-50 ('September 2010 ACIs');
360. January 2011 ACIs, above n 204, 50-1.
361. The instructions direct parents to contact the Citizenship Help Desk: September 2010 ACIs, 50; January 2011 ACIs, 51.
362. See H v Minister for Immigration and Citizenship (2010) 272 ALR 605, 612 (Moore, Kenny and Tracey JJ).
363. July 2009 ACIs, above n 207, 31: A surrogate child will generally be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen, who has been granted full parental rights by a court of law. In the case of a child born as a result of surrogacy arrangements, it is a requirement for registration of citizenship by descent that there be a genetic link between a parent and the child in question and that that parent be recognised on the birth certificate. Documents required to register a surrogate child as an Australian citizen by descent are: • a statement from the doctor to the courts stating clearly that genetic material from person A and/or person B has been implanted in person C; and • court documentation stating clearly the legal custody of the surrogate child and waiving the rights of the surrogate mother. The statement must also confirm the doctor's statement regarding the person/s donating the genetic material. Family situation is not relevant to registration of citizenship by descent, provided at least one biological parent is an Australian citizen who has been granted full parental rights by a court of law. See also Australian High Commission (India), above n 168.
364. Re Mark (2004) 31 Fam LR 162, 173-4 (Brown J).
365. See, eg, ND and BM (2003) 31 Fam LR 22, 27 (Kay J): one cannot contract out of parental status, even if all parties are in agreement.
366. See also Re Evelyn (1998) 23 Fam LR 53, where the terms of the surrogacy agreement were irrelevant to the Court's inquiry about who should raise the child.
367. Collins and Tangtoi [2010] FamCA 878 (9 August 2010) [9]-[10] (Loughnan J);
368. O'Connor and Kasemsarn [2010] FamCA 987 (29 October 2010) [12]-[15] (Ainslie-Wallace J);
369. Dennis and Pradchaphet [2011] FamCA 123 (22 February 2011) [6]-[8] (Stevenson J).
370. Collins and Tangtoi [2010] FamCA 878 (9 August 2010) [10] (Loughnan J).
371. This appears to be an incorrect reading of s 16 (2) of the Citizenship Act, which the Full Federal Court has recently stated requires that the parent be a parent at the time of the child's birth: see H v Minister for Immigration and Citizenship (2010) 292 ALR 605, 638 (Moore, Kenny and Tracey JJ).
372. In mid 2011 the Australian Embassy in Bangkok published information on its website describing the requirements for citizenship by descent in surrogacy as 'under review' and providing instructions on the processing of applications for visas for children born through surrogacy: Australian Embassy (Thailand), Children Born through a Surrogacy Arrangement, [3.1], [6.1]-[6.12] . The Embassy instructions mirror the instructions given by the Australian High Commission in New Delhi by requiring DNA testing to establish a genetic link with at least one Australian parent. However, unlike the High Commission in New Delhi, they also require a mandatory interview with the birth mother and her husband (if any) to ascertain her consent to the child's removal from Thailand: at [6.6].
373. FLA s 60CC. The Court must apply a presumption of equal parental responsibility to the legal parents: at s 61DA.
374. The first three cases concerned intended parents who were gay male couples, all from Victoria: Re Mark (2004) 31 Fam LR 162 (arrangement in California);
375. Cadet and Scribe [2007] FamCA 1498 (5 November 2007) ('Cadet') (arrangement in Ohio);
376. Wilkie and Mirkja [2010] FamCA 667 (9 July 2010) ('Wilkie') (arrangement in India).
377. Ronalds and Victor [2011] FamCA 389 (13 May 2011) also involved a gay male couple with twins born in India.
378. Collins and Tangtoi [2010] FamCA 878 (9 August 2010) ('Collins');
379. Dennis and Pradchaphet [2011] FamCA 123 (22 February 2011) ('Dennis');
380. Dudley and Chedi [2011] FamCA 502 (30 June 2011) (Mr and Mrs Dennis are Mr and Mrs Dudley);
381. O'Connor and Kasemsarn [2010] FamCA 987 (29 October 2010) ('O'Connor');
382. Findlay and Punyawong [2011] FamCA 503 (30 June 2011);
383. Johnson and Chompunut [2011] FamCA 505 (30 June 2011);
384. Hubert and Juntasa [2011] FamCA 504 (30 June 2011). All of these cases involved applicants from NSW and Queensland, with a mix of intended parents who were heterosexual couples and gay couples, and one single man. All were represented by the same law firm.
385. O'Connor [2010] FamCA 987 (29 October 2010) [3] (Ainslie-Wallace J);
386. Re Mark (2004) 31 Fam LR 162, 163 (Brown J);
387. Cadet [2007] FamCA 1498 (5 November 2007) [2] (Brown J);
388. Wilkie [2010] FamCA 667 (9 July 2010) [6] (Cronin J);
389. Collins [2010] FamCA 878 (9 August 2010) [2] (Loughnan J);
390. Dennis [2011] FamCA 123 (22 February 2011) [5] (Stevenson J).
391. (2004) 31 Fam LR 162, 163 (Brown J).
392. See Cadet [2007] FamCA 1498 (5 November 2007) [1] (Brown J);
393. Collins [2010] FamCA 878 (9 August 2010) [1] (Loughnan J);
394. O'Connor [2010] FamCA 987 (29 October 2010) [9] (Ainslie-Wallace J).
395. Collins [2010] FamCA 878 (9 August 2010) [5]-[6] (Loughnan J);
396. O'Connor [2010] FamCA 987 (29 October 2010) [8]-[9] (Ainslie-Wallace J);
397. Dennis [2011] FamCA 123 (22 February 2011) [14] (Stevenson J).
398. [2010] FamCA 878 (9 August 2010) [20] (Loughnan J).
399. Wilkie [2010] FamCA 667 (9 July 2010) [2] (Cronin J).
400. Findlay and Punyawong [2011] FamCA 503 (30 June 2011);
401. Dudley and Chedi [2011] FamCA 502 (30 June 2011).
402. Watts J also considered doing so in Johnson and Chompunut [2011] FamCA 505 (30 June 2011)
403. and Hubert and Juntasa [2011] FamCA 504 (30 June 2011), but the relevant provisions were not yet in effect at the time the arrangements had been made.
404. [2008] EWHC 3030 (Fam) (9 December 2008) [24].
405. Millbank, 'De Facto Relationships', above n 38, 183-93.