On Tuesday I presented to the American Academy of Assisted Reproductive Treatment Attorneys conference in Chicago about whether the phenomenon of Baby Gammy actually changed anything. I am a Fellow of the Academy, and the first international Fellow outside the US and Canada. Here is my paper:
The Musicians
May Change but the Band Plays On.
Did Baby Gammy
Change Anything?
By Stephen Page[1]
American Academy
of Assisted Reproductive Technology Attorneys Conference
Chicago
6 October 2015
“What’s
clear is while one culprit’s been exposed, there will always be another rogue
operator, new sets of parents desperate to have children, and a willing supply
of surrogates trying to better their own lives. And when this pattern plays out
around the world in developing countries with next to no regulation, there are
very few winners.”[2]
It’s not all
about surrogacy!
As
I had to explain to one judge, who wanted to know why my gay clients wanted to
undertake surrogacy, the easiest way to have a child is to have sex. My
clients, as I told his Honour, tried repeatedly, but they were unable to
succeed because they were both men.
His
Honour then invited me to continue. I explained that no one would undergo the
option of last resort, surrogacy, if all the successful alternative was that of
sex. After all, why run the gauntlet with a battery of counselors, doctors,
lawyers and then finally a judge, if the alternative were that of sex?
For
many laypeople, and indeed many intended parents, the focus is on surrogacy.
Fair enough when you are a gay couple or a single man- you have little option,
but for single women, lesbian couples or heterosexual couples, surrogacy is
often one of the options, and the last option after other options have been
considered including:
·
Sperm
donation
·
Egg
donation
·
Embryo
donation
·
IVF
Many
intended parents, after seeing media coverage about surrogacy, or reading about
it via Google, then assume that surrogacy is the option for them. Often they’re
wrong.
Although
I talk in this paper about surrogacy, the other aspects of ART should not be forgotten.
Australians
restrict the ability to pay egg donors, for example. I have had clients head
overseas after asking 38 potential egg donors, none of whom responded
positively except the last one, who wanted A$5,000for an overseas holiday,
which aside from the risk of paying what would appear to be a capricious donor,
raised the further risk of criminality in two states and federally.
Australians
have headed overseas for egg donors to as far away as:
·
Argentina
·
USA
·
Mexico
·
Canada
·
Spain
·
Greece
·
Ukraine
·
India
(until recently)
·
Thailand
(until last year)
·
Cambodia
(if anecdotal stories are correct)
A
focus on surrogacy alone will miss the other aspects of ART that should not be
ignored.
Intended
parents may worry that they not commit criminal offences to do with surrogacy
(which depending on the jurisdiction has
a maximum penalty of up to three years imprisonment) but not realize
that there can be a criminal offence with overseas egg donor contracts (which
can have a maximum penalty of 15 years imprisonment).
Introduction to
the madness
Just
over a year ago, the Baby Gammy saga burst into view. Day by day the saga
played out with new developments.
I
had no connection with the case except that I was seemingly the world’s expert
du jour. I was at the epicenter of the media storm. For one month I did very
little billable work, instead every day being a series of media interviews,
backgrounders or setting up media interviews.
I
knew it was big when colleagues in Canada and Switzerland were interviewed about
the same story- the story of surrogacy gone wrong, involving two babies, an
Australian couple, a Thai surrogate and an Australian trained Thai fertility
doctor.
To
give you a perspective of that month of madness:
·
in
one day I did five separate national TV network interviews, plus several radio
interviews, a backgrounder, plus two or three press/internet interviews.
·
I
was contacted by seemingly everybody: The New York Times, Wall Street Journal,
The Guardian, Fuji TV, DW (German TV), Radio NZ, as well as seemingly most of
Australia’s media. Who knew that there was a Christian radio station in Sydney
or that there was a late night political talk show on pay TV in Australia? I
didn’t!
·
When
I went to speak at the inaugural AFCC conference in Australia, I spent much of
the day down the hall from the conference venue sitting in winter on the
polished stone floor? Why? This was the only place that I could find that was quiet
enough where I could find a plug to charge my phone at the time of doing a
dozen or two phone calls connected with interviews- with everywhere from
Brisbane radio to a colleague in Boston and journalists in Bangkok.
·
A
year later I was hit by a sense of déjà vu of going to the annual family law
conference in Queensland. What was different this time was that unlike last
year, I was not sitting in my car in the car park for a lengthy time. Last year
the interview with Fuji TV was conducted via Skype, using my phone. As it was
almost out of juice, I had to plug it into the phone charger in the car, and
then hold my phone dead still for 20 minutes. You cannot possibly realize how
heavy an iPhone is until you have achieved this!
When
you are subjected to this level of scrutiny, as happens when for example I said
that our Prime Minister was wrong (as he said that Australian intended parents
who went to Thailand who got stuck should have complied with the law in both
places, to which I responded that many of them did), and every journalist wants
to scoop all the others, suddenly you have to come up with some soundbites as
to how prevent something like Baby Gammy happening again.
Mine
were:
1.
Reduce demand by
increasing supply.
Australia has to allow commercial surrogacy. Surrogacy in Australia, with the
most limited exception in the Northern Territory, is non-commercial. Donors are
not able to be paid, except for out of pockets. Surrogates are not able to be
paid, except for out of pockets. It is illegal to advertise for surrogates in
most of Australia. If demand were increased, then Australian intended parents
would not be going overseas to developing countries where human rights
protections and governance standards were less than adequate- they would be
staying home, at their local high quality, heavily regulated IVF clinic. Who
wants to go to a developing country overseas when they could go just down the
road? After all, Australia produced the IVF pregnancy. Its twinning rate (along
with NZ) is the lowest in the world. The suggestion that Australian laws could
not protect the human rights of surrogates and children was laughable.
2.
Use soft power to
encourage overseas countries to lift their standards. This would be through
diplomatic efforts, but also through legal and medical organisations, such as
the International Bar Association and ASPIRE (Asia Pacific Initiative on
Reproduction).
3.
Have a sensible Hague
Convention on international surrogacy arrangements.
In
the midst of the saga, the chief family law judges, Chief Justice Diana Bryant
of the Family Court of Australia and Chief Judge John Pascoe of the Federal
Circuit Court of Australia, supported change. Their Honours:
·
Supported
the removal of extra-territorial sanctions for overseas surrogacy, which exist
in Queensland, New South Wales and the Australian Capital Territory. After all,
they reasoned, these laws are in place to prevent people from going to
developing countries, for which they have been spectacularly unsuccessful.
Either the laws should be enforced, which they weren’t as not one person had
been prosecuted, which made a mockery of the law, or they should be repealed.
·
Supported
the legalization of commercial surrogacy in Australia.
·
Called
for a Parliamentary inquiry to investigate commercial surrogacy, to see whether
it ought to be allowed in Australia.
A summary of
scandals
Probably
a better name for this paper might have been: the more things change, the more
they stay the same[3].
Despite the scandals, it might seem that very little has changed with the
regulation of surrogacy, nationally and internationally.
To
give an idea of recent troubles, it is best to highlight all of which have an
Australian element. Australians hold the dubious honour, due to our surrogacy
laws, and relative ease of obtaining citizenship, of probably being the highest
per capita users, and possibly the highest absolute users of international
surrogacy arrangements.
Scandal 1: Russia
and USA: Newton and Truong
Mark
Newton is a US/Australian dual citizen. His former partner, Peter Truong is an
Australian citizen of Vietnamese background. They lived together near Cairns.
Their
story was that they went to Russia, underwent surrogacy there using Mr Newton’s
sperm, and came home with a baby boy. They obtained at first a custody order
and then an adoption order in the US.
They
presented to the world as a loving gay couple who had undertaken surrogacy and
doted on their child.
Most
of what they said was a lie. The lie was exposed when a man in New Zealand in
2011 took his computer to the repair shop. The repairer noticed that there was
child porn.
The
truth was that Mr Newton and Mr Truong had purchased the baby from a Russian
woman for the purpose of sexualizing the child and making him available both
physically but also via video and pictures on the web, to a global paedophile
ring.
The
child was sexualized, according to media reports to an extraordinary degree. He
is now in the care of relatives in the US. Both Mr Newton and Mr Truong are
serving long sentences in US jails.
The
good news is that Queensland police, as part of Taskforce Argos[4], co-operated with the FBI
and counterparts in New Zealand and Europe in investigating the leads and
catching the various suspects.
Scandal 2: India:
The missing boy
In
2008 an Australian couple from Western Sydney had twins born to them in India
via surrogacy. They did not want the boy, and took the girl. The choice was
based on sexuality. It is not known where the boy ended up, other than with
“friends”, but it is likely that he did not leave India. The Chief Justice of
the Family Court of Australia, Diana Bryant, has called the actions, if correct
(and they appear to be so) to be child trafficking.
Her
Honour broke the scandal in October 2014, and there have been reports about the
case from Australia’s ABC[5] since then.
The
effect of the scandal, which broke in the aftermath of Baby Gammy, was that
India stopped all Australians from undertaking surrogacy there whatsoever.
Since early this year, India has relented somewhat so that limited numbers of intended
parents from Victoria, Tasmania, South Australia, Western Australia and the
Northern Territory can undertake surrogacy in India.
Following
earlier changes in 2012 when India changed the rules halfway through some
surrogacy journeys, many Australian intended parents got stuck on the way
through. Thankfully, all were able to bring their babies home, although it was
reported to me by clients that bribes had been paid to enable them to do so.
Scandal 3: Thailand/Cambodia:
Making multiple babies
At
the time that the Baby Gammy saga broke, and it appeared that almost the whole
of the world’s media beat a path to my door, what journalists in Thailand told
me was that Thai officials viewed much more seriously were the efforts of a 24
year old Japanese man, Mitsutoki
Shigeta, the son of an IT billionaire, to create many children. At last count,
there were 18, fathered by 13 surrogates, all created through the efforts of Australian-trained
Dr Pisit Tantiwattanakul.
I
do not know what ultimately has happened with these babies, or the Japanese
father, although it appears that in January he was awarded custody of three of
them[6] and was suing for 13 of
them to come into his care[7].
As
well, another 21 babies were taken into custody by Thai authorities, in what
they described as a baby factory. Those babies were conceived from eggs of
donors from Australia,
the US, Sweden, China, Spain, Brazil, Malaysia and Israel[8].
Scandal 4:
Thailand: the Baby Gammy Saga
The
biggest of the scandals was the Baby Gammy Saga. Every day in August and
September last year it appeared that there was a new development. The case
seemed as far removed as it could possibly get from the standard surrogacy
case, but nevertheless the facts kept rolling:
·
An
Australian couple, the Farnell’s, underwent surrogacy through Dr Pisit’s All
IVF in Bangkok.
·
They
came there through a backyard surrogacy agency in Bangkok.
·
The
surrogate it turns out was not a gestational surrogate, but a traditional
surrogate.
·
Although
doctors were not allowed to provide treatment for commercial surrogacy, it
appears that the surrogate was paid, and recruited other surrogates.
·
Twins
were conceived, presumably intentionally.
·
No
discussions appear to have occurred between the intended parents and the
surrogate as to what they might do if something went wrong, or if they did have
discussions, those discussions were clearly inadequate.
·
All
discovered in due course that the twins were a boy, Gammy and a girl. The girl
was healthy. Gammy had Down’s syndrome.
·
The
Farnell’s took that the view that there should be selective reduction of Gammy.
The surrogate refused.
·
Following
the births, the Farnell’s refused to take Gammy, and took the girl.
·
The
surrogate consented to the removal of the girl from Thailand to Australia.
·
After
their return to Australia, the Farnell’s refused to provide any financial help
with Gammy, who it turns out also had a congenital heart condition.
·
A
public appeal raised several hundred thousand dollars to help the mother
provide for Gammy.
·
When
the story broke, it was revealed that Mr Farnell was a convicted paedophile.
·
It
then became apparent to the world’s media that there was in fact no global
legal system concerning surrogacy, and that there were no criminal and child
protection checks on those undergoing surrogacy overseas.
·
Media
then camped out at the Farnell’s home, chasing down child protection service
officers.
·
Mr
and Mrs Farnell then took part in a 60 Minutes story to put their side of the
story.
Following
the multiple baby scandal, and the Baby Gammy saga, Thai officials (now
appointed by a junta) took swift action. The actions of Thai officials seemed
to change day by day. At first no action seemed to be taking place, then rules
were put in place, which then kept changing.
Thai
officials immediately announced that there would be no more surrogacy, unless
it was altruistic and the intended parents were Thai citizens. So that there
was no doubt about who could take the children from Thailand, it was also
suddenly announced that any intended parents who wanted to remove their babies
from Thailand would have to get an order from the Family Court there. This step
had never been required before, and was estimated to take six months to
complete, during which time the intended parents would likely lose their life
savings, their jobs and homes back in Australia and other countries.
The
Prime Minister, Mr Abbott, also announced that in effect Australian intended
parents had to obey the laws in Australia and in Thailand, effectively saying
that they only had themselves to blame. I said to media that the Prime Minister
was wrong- because many of these parents believed that they were obeying the
law in both places when they entered into the surrogacy contracts and could not
be blamed for a change of rules halfway or even more of the way through.
Luckily
the Australian government regrouped, via a committee of officials from various
departments, and made strenuous diplomatic efforts, mostly behind the scenes,
to ensure that the children could come to Australia in a timely manner. They
were largely successful. However, it has been reported to me by several of the
parents that they could only remove the children from Thailand following the
payment of a bribe to relevant Thai officials.
Two
Thai clinics were immediately closed down, one of which was Dr Pisit’s All IVF.
It was announced that Dr Pisit was placed under arrest, presumably never to practice
again.
Recent
anecdotal reports I have received suggest that some Thai doctors are still at
the centre of surrogacy: evidently the profits are too good. Thai doctors have
been responsible, so I have been told, for the creation of embryos in Cambodia,
sometimes with surrogates there, or for the subsequent export of embryos from
Cambodia to Nepal.
As
of 12 August 2015, Dr Pisit appeared on the web, no longer from All IVF, but
now appearing at “iBaby Fertility and Genetic Center, Leading Fertility Center
in Bangkok Thailand”[9]. This is what his website
said under “About us”:
“Why
iBaby : Dr. Pisit is a doctor of clinical embryology, receiving
his post-graduate credentials from Monash University in Melbourne, Australia…
Moreover, Dr.Pisit received doctorate of medicine from Chulalongkorn University, one of the best and world class university in Bangkok, Thailand and has a wealth of experience in the fields of embryology, gynecology and obstetrics. Dr.Pisit has spent over 10 years in the study and work of reproductive medical practices. Dr. Pisit has written heavily researched and detailed papers on pregnancy, embryo transfer and contraceptive affects on the uterus and also has done work for several hospitals throughout Thailand and Australia. Recently, at our clinic, Dr. Pisit works as an infertility specialist and director of embryologist.”
Moreover, Dr.Pisit received doctorate of medicine from Chulalongkorn University, one of the best and world class university in Bangkok, Thailand and has a wealth of experience in the fields of embryology, gynecology and obstetrics. Dr.Pisit has spent over 10 years in the study and work of reproductive medical practices. Dr. Pisit has written heavily researched and detailed papers on pregnancy, embryo transfer and contraceptive affects on the uterus and also has done work for several hospitals throughout Thailand and Australia. Recently, at our clinic, Dr. Pisit works as an infertility specialist and director of embryologist.”
There is no suggestion that Dr Pisit
is undertaking surrogacy work now, but certainly continuing fertility work.
A report I read in early
September from Thailand suggested that
the Thai government was now seeking to deregister Dr Pisit. Let’s see.
Scandal 5:
Mexico: Rudy Rupach, Planet Hospital
In
2013 I met Rudy Rupach in Melbourne. He turned up there as a sponsor of the
Surrogacy Australia conference, and appeared under a large banner spruiking
surrogacy in Mexico. While I do not profess to be an expert on the subject, my
immediate impression of Mr Rupach was that he seemed to be the archetypal
1970’s Californian porn film director: open necked shirt, heavy gold chain and
pulled back long black/grey hair.
Mr
Rupach touted the benefits of going to Mexico. He had tried running surrogacy
in India, but given the regulatory changes there, was now trying Mexico, in the
State of Tabasco. When I asked how surrogacy came about, I was told that it was
due to the efforts of a State senator, who was keen to help infertile women,
who moved a bill through the Tabasco legislature, and to whose political action
committee Mr Rupach paid a substantial donation before the next election.
However,
as Foreign Correspondent[10] and The New York Times[11]
revealed, Mr Rupach’s Planet Hospital struck problems:
·
The
company was insolvent, leaving intended parents from several countries,
including Australia, many thousands of dollars out of pocket;
·
It
operated, as alleged by intended parent, then lawyer and former Planet Hospital
employee Catherine Moscarello as a Ponzi scheme;
·
Women
were being trafficked from Colombia to be promised payment as surrogates, only
to learn that they were unpaid, abandoned, and unable to return home.
Last
heard from there was an FBI investigation and bankruptcy proceedings concerning
Planet Hospital[12].
But
that is not the end of Catherine Moscarello. Ms Moscarello, who lives here in
Illinois, and who was severely critical of Mr Rupach, has been disbarred by the
California State Bar[13] in November, 2014. The California Bar Journal Discipline Summary states:
“Moscarello stipulated that she
didn’t comply with the terms of a 2012 disciplinary order. She submitted four
quarterly reports to the Office of Probation late and did not provide proof of
restitution. She was ordered to pay the previously unpaid $1,200 plus interest
in restitution. Moscarello had two prior records of discipline. In 2013, she
was suspended for failing to refund unearned fees. In 2011, she was suspended
for misconduct in eight matters including improper withdrawal from employment
with a client and failing to perform competently, refund unearned fees to a
client, return a file to a client, communicate adequately with a client or
cooperate in a State Bar investigation.”
Moscarello
remains in the surrogacy business[14], running IP Conceptions,
which specialises in surrogacy in Mexico[15].
So what’s
changed?
Well,
not that much really. The locations have changed, but surrogacy in developing
countries continues. Certainly Thailand is closed for good for surrogacy. The
musicians may change, but the band plays on.
Certainly,
there has been a sea change in some aspects since pre-Baby Gammy. In April last
year I spoke at the Merck Serono conference on Cross-Border Reproductive Care
in Brisbane. Another speaker was acclaimed IVF specialist Dr.Wiwat Quangkananurug from Bangkok who described how
surrogacy was undertaken in Thailand, and how he would not deal with any of the
surrogacy agencies there, which in light of what happened in the Baby Gammy
saga seems particularly prescient in hindsight. He considered the agencies to
be scam merchants, often operating out of apartments, with little evidence that
they were genuine.
Dr Wiwat was critical of the Indian
approach to surrogacy, suggesting that in Thailand surrogates were better
looked after and that quality control was higher in Thailand.
India
Of course, such debates between
Indian and Thai doctors, at least so far as Australians are concerned now, is
academic. Hardly any Australians can now access surrogacy in India, and
Thailand is closed for business. India has talked since 2008 of regulating its
ART industry by passing an ART Bill. It still hasn’t done so, meaning that the industry
is largely self-regulated, or not regulated at all. The death of a 17 year old egg donor [16]
in 2010 allegedly by a clinic that was at the time popular with Australians,
has not prompted changes. Nor has the alleged rape of a law student there who refused
to be a surrogate[17].
No prosecutions
No
one has yet been prosecuted for undertaking surrogacy overseas.
No
one has yet been prosecuted for undertaking egg donor contracts overseas, even
though the criminal laws in several States, such as NSW, would appear to
stretch that far.
The
State Attorneys-General were recently reported as wanting to get tough about
these laws, but as yet nothing substantial appears to have happened.
The
impact of Thailand being shut for business for surrogacy has not deterred the
childless and the desperate. Australians have gone in increasing numbers to
Mexico and to Nepal.
The
number of Australians going to developing countries is likely to increase,
following the collapse in the Chinese exchange rate, which in turn has led the
Australian dollar down from near parity with the US dollar a year ago to now
buying US$0.63, with predictions that it will travel further south.
Mexico
One
Australian lawyer specialises in assisting clients to undertake surrogacy in
Mexico[18]. Reports have continued
to come from Mexico in 2015 about intended parents being stuck there, unable to
bring their babies home. There were stories this year of parents from the US[19], Canada and Spain[20] in this category. One
story about the Canadians was particularly revealing: they said that their
Mexican lawyers had discussed with them about which officials to bribe[21]! This was after:
"They've done their due diligence.
They hired a lawyer, they took the precautions they thought they needed
to."[22]
A prospective client of mine told me
that he and his partner had budgeted A$160,000 for the surrogacy journey
through Mexico!
Nepal
Australians are now undertaking
surrogacy in increasing numbers in Nepal, notwithstanding the recent earthquake
and pictures of Israeli gay couples being choppered out with their babies after
the earthquake. Nepal is an ironic location. Generally India will not allow
Australians to undertake surrogacy there. Nepal, being poorer than India, has
given the green light to medical tourism, including surrogacy. However, in
order to protect its women, Nepal will not agree to Nepalese women being
surrogates. They come from India!
At the time of writing, the Supreme
Court of Nepal issued an interlocutory injunction preventing all commercial
surrogacy there. Australian intended parents are stuck there, with pregnant
surrogates, as are intended parents from other countries.
It seems to be a replay of India in
2012 and Thailand in 2014: a developing country in which surrogacy is seen as a
panacea, but the panacea is more like opening Pandora’s Box: ethical and moral issues come with surrogacy,
something goes wrong, and a lack of regulation causes a kneejerk reaction, resulting
in intended parents being trapped.
The court case has exposed that
there are no laws in Nepal regulating or allowing surrogacy, but instead surrogacy
is allowed pursuant to a Cabinet decision made last year.
In the court case it is being argued
that surrogacy involves the exploitation of women and the children. It is
argued that the hospitals issue their own (non-State sanctioned) birth
certificates, and that children going overseas do so in breach of the 1961 Hague
Convention.
That Convention is the 1961 Hague Infants Convention[23].
The key provisions of the Convention are Articles 5 and 6:
“Article 5
If the habitual
residence of an infant is transferred from one Contracting State to another,
measures taken by the authorities of the State of the former habitual residence
shall remain in force in so far as the authorities of the new habitual
residence have not terminated or replaced them.
Measures taken
by the authorities of the State of the former habitual residence shall be
terminated or replaced only after previous notice to the said authorities.
In the case of
change of residence of an infant who was under the protection of authorities of
the State of his nationality, measures taken by them according to their
domestic law shall remain in force in the State of the new habitual residence.
Article 6
The authorities
of the State of the infant's nationality may, in agreement with those of the
State where he has his habitual residence or where he possesses property,
entrust to them the putting into force of the measures taken.
The authorities
of the State of the habitual residence of the infant may do the same with
regard to the authorities of the State where the infant possesses property.”
The member States of this Hague
Convention are, with one exception, China, all European. China is listed as
continuation, which I suspect is for Macao only, as Portugal is a signatory,
but the UK is not.
Member
States:
Austria
People’s Republic of China
France
Germany
Italy
Latvia
Lithuania
Luxembourg
Netherlands
Poland
Portugal
Spain
Switzerland
Turkey
|
Nepal is not a signatory. Nor are
the countries that have been the largest sources of intended parents: Israel,
Australia and USA, amongst others.
|
USA
Australians continue to go to the
US. They do not stick just to California (though that is the favourite
location) but have ventured all over, including to Arizona, Washington State,
Arkansas, Minnesota, Idaho, Massachusetts, Maryland, Illinois, Ohio and Hawaii.
The cost of Australians undertaking
surrogacy in the US varies.
The key in going to the USA (of
course aside from the issue of whether it is legal in the home State) is to
make sure that healthcare costs are under control. The Affordable Care Act may be
making a difference. However, recently a couple (who had not sought my advice
before going to the US) told me that some things had gone wrong in their
surrogacy journey, including uninsurable twins, resulting in a total cost of
A$1 million! Another couple, who were referred to me by an American attorney
ignored my advice to sort out health insurance and have had a health care bill
of $1million!
There are recent reports of
Australian authorities cracking down on the practice of Australian intended
parents bringing their babies home on tourist visas. What impact this will have
on practice I do not know. It is again a case of watch this space.
Canada
For those in Queensland, NSW and ACT
where there is no doubt that it is illegal to go overseas for commercial
surrogacy (including of course to the US) , some intended parents have been
going to Canada. It is possible to undertake altruistic surrogacy in Canada,
with ART occurring in the US, such as California or Nevada[24],
if properly planned.
Ukraine,
Greece, Georgia
I have also been approached by
agencies or doctors in the Ukraine, Greece and the Republic of Georgia seeking
Australian intended parents.
|
Country
|
Cheap,
cheap
|
Low
range
|
High
range
|
OUCH!
|
|
Australia
|
$25,000
|
$35,000
|
$60,000
|
$300,000[27]
|
|
Canada
|
|
$80,000
|
$100,000
|
|
|
India
|
|
$70,000
|
$80,000
|
|
|
Georgia
|
NK
|
NK
|
NK
|
NK
|
|
Mexico
|
NK
|
NK
|
$160,000
|
NK
|
|
Thailand
|
$50,000
|
$70,000
|
$80,000
|
|
|
Ukraine
|
NK
|
NK
|
NK
|
NK
|
|
USA
|
$25,000
|
$100,000
|
$250,000
|
$1million
|
Parliamentary Inquiry
Following Baby Gammy, the Australian
House of Representatives Select Committee on Social Policy and Legal Affairs
held an informal inquiry into surrogacy, called a Roundtable.
Witnesses came in two groups. The
first group were opposed to surrogacy, because they saw it would be like the
exploitation of women through adoption and the robbing of people of their
heritage caused by anonymous donors.
The second group were calling for
change, the removal of discrimination, the legalization of commercial
surrogacy, and the removal of laws banning Australians going overseas.
Chief Justice Diana Bryant of the
Family Court of Australia and Chief Judge John Pascoe of the Federal Circuit
Court of Australia were both in the latter camp. Her Honour called for laws, prepared
in advance by 18 months, so that those going overseas had to meet certain
checklists back home, as it was assumed that Hague processes would be too slow.
Another witness raised concerns that to do so might mean that children were
trapped offshore, remaining stateless.
The committee’s conclusion? That
there ought to be a formal inquiry by the Committee to deal with international
issues, cross-border issues in Australia, issues to do with discrimination in
Australia, and the information that ought to be provided to intended parents.
The report has been with the Government for months, and despite there being
rumours that there will be an inquiry, none has yet materialised.
In April I took part in a discussion
held by the Women Judges Association of Australia about surrogacy. The question
that I long remember was from a man from the Lone Fathers Association of
Australia who asked why these people could not just get used to the idea of not
having children, after all that is what happens to parents often in the Family
Law Courts- that they do not get to see their children. I replied that was not
in the real world. In the real world, within less than a second a person who is
desperate to have children can click on the browser on their smartphone or
tablet and find millions of answers to surrogacy, based here and overseas. I
said that we could be like Canute and pretend that we can stop the tide, but
the reality is that we cannot, and that we are better off regulating surrogacy,
rather than seeking to ban it.
Indians in India
Many Indian-Australians wish to
undertake surrogacy in India, for a variety of reasons, mainly so that they can
have a child who is ethnically theirs, and they feel much more comfortable
negotiating Indian laws and custom than the wider Australian community. Undertaking
surrogacy there means that they can go to their homeland and spend time with
their extended families. It seems that these people, who have legitimate
aspirations and do not want to exploit anyone, let alone the surrogates, are
too often forgotten. In some cases, they have been able to speak the same
language as the surrogate, and even maintain an ongoing relationship with her,
valuing her role in their family’s life.
International altruistic surrogacy
This must not be forgotten. In all
the noise about exploitation and the need for regulation of international
commercial surrogacy, intended parents undertake international altruistic
surrogacy. This can be extremely complex.
A recent example of the complexities of international
altruistic surrogacy
Two sisters wished to undertake
surrogacy. The sister who could have children was to be the surrogate. The
sister who could not was to be the intended mother. Each of them were married.
Simple so far.
One couple lived in New Zealand. The
other lived in Australia. State, Australian and New Zealand laws had to be
negotiated, as well as the Hague
Intercountry Adoption Convention (because NZ handles surrogacy via an
adoption order when the baby comes home).
I drafted a surrogacy arrangement
which did not comply with State law, in the sense that an order would not be
able to be obtained (because the intended parents did not live in that State
and fertility treatment was not in that State), but it was legal. Legal, but
non-compliant, as opposed to legal and compliant, or illegal (commercial
surrogacy).
Fertility treatment was in the US.
After my client the surrogate was
pregnant, I was telephoned by a lawyer for a medical defence fund, acting on
behalf of the obstetrician. She wanted to know if her client, in providing
treatment, would be committing an offence. I said: “No.” She then asked me to explain. Dealing with complex issues of
law, including private international law, took me 15 minutes. She then asked me
to confirm that advice in writing, resulting in an eight page letter!
Treatment was provided, and a
healthy child was born as a result.
The Hague
Since 2010 the Permanent Bureau of
the Hague Conference of Private International Law, based, not surprisingly, at
The Hague in the Netherlands, has been working on the idea of the possibility
of there being a Hague Convention on International Surrogacy.
Australia, along with many other
Western countries, such as the US, is a member of the Hague Conference. As a
member nation, Australia is a party to several Hague Conventions to do with
children, such as the Hague International
Child Abduction Convention and the Hague
Intercountry Adoption Convention.
The current status of progress is
that there is likely to be a working group of international experts meeting
early in 2016 to flesh out the bare bones of a Convention. It is likely that
any Convention is, at best, two to three years away. It is clear that if there
any doubt about there being a Convention, most Member Nations formed the view
post-Baby Gammy that there needed to be one, including a requirement of basic
scanning of suitability of intended parents as to criminal and child protection
histories.
We shall see what transpires.
South
Australia
Not much has happened, as I said, in
Australia, except that is in South Australia. There a Liberal backbench MP,
John Dawkins MLC achieved changes to the Family
Relationships Act 1975 (SA), the law that covers surrogacy.
Some of those changes were advocated
by me- such as one counsellor before signing the surrogacy agreement, not three
as used to be the case[28],
and post-birth counselling (which was not previously provided) but he came up with his own idea
(independently also considered but rejected in Israel): that anyone from SA
going overseas for surrogacy needs the permission of the Attorney-General to do
so. As the MP explained to me, this was for the firm purpose of preventing a
repeat of Baby Gammy. I do not share his optimism, but I understand the direction
he took.
The irony of this change is that
same sex couples and singles cannot proceed with surrogacy in South Australia
and have to go overseas, but then have to get the permission of the first law
officer, the Attorney-General, before they can go.
It is not known on what basis the
Attorney-General will approve or decline approval, or require further
information and documents about any international arrangements. It is likely
that SA residents who head off overseas will ignore the law and attempt to fly
under the radar, as have their cousins in Queensland, NSW and the ACT, unless
and until there is the first prosecution.
Finally, my
conception case
This
case was decided as long ago as 2012, but it is still unique, I understand, so
I mention it.
The
Surrogacy Act 2010 (Qld) has some
basic requirements before a parentage order can be made. One of those is that
the surrogacy arrangement was entered into “before
the child was conceived”. There was no definition of conception or conceived.
Was it the act of fertilization or was it the act of pregnancy? The difference could be stark- if the former,
and the parties were using an embryo created before the surrogacy arrangement
was entered into, then there could never be a parentage order.
That
was exactly the situation that faced the judge in my case, LWV and Anor v. LMH [2012] QChC 026[29]. The intended mother had
cancer. Several eggs were removed, ahead of treatment for cancer, fertilized
with her husband’s sperm, then frozen. Years later, her sister, my client,
entered into a surrogacy arrangement with the intended parents to be their
surrogate. A transfer then occurred, a pregnancy resulted and the child was
born. When was conception?
Judge
Clare SC was clear- it was the act of pregnancy, not fertilization. Her Honour
made a parentage order.
Her
Honour stated:
“[1] LCH is a long awaited and
precious gift, much loved by his family and a miracle of modern medicine. When
his biological parents were unable to conceive naturally, his aunt grew and
nurtured LCH in her body for them. LCH was born on 22 March 2012. He has been
in the care of his natural parents, LWV and AKV, since his release from the
hospital. This is an application for a Parentage Order. It is brought by LWV
and AKV and supported by the continuing altruism of the birth mother, LMH, who
is named as the respondent.
The court’s
power to make an order
3
[2] The parties
had a surrogacy arrangement. They have done everything they could to comply
with the law and now seek its protection for LCH through the parentage order.
[3] The power
to make such an order derives from the Surrogacy Act 2010
(Qld). As one might expect the Act
sets out rigorous conditions for the protection of the birth mother and the
protection of the child.
…[6] The
meaning of the term “conceived” as used in ss (2) (e) (iv) is critical to the
court’s jurisdiction in this case. This is because the embryo was created years
before the surrogacy arrangement, then frozen and not implanted in th
e uterus until months after the
written arrangement was settled. The question now is whether the reference to pre
conception as the cut-off point in ss (2) (iv) means before the creation of the
embryo or simply any time before the transformation of the embryo into a pregnancy.
If it were the earlier point in time, the court would have no power to make a
parentage order for LCH.
What does
“conceived” mean?
[7] The act offers no definition.
This appears to be the first time a court has been asked to interpret ss (2)
(e) (iv). Nonetheless, the answer seems
straightforward. Whatever approach to statutory interpretation
is applied, whether it is to view “conceive” as a technical term, or in its
everyday meaning, or the meaning that best advances the purposes the Act, the
result is the same. The point of conceiving a child is the commencement of the pregnancy,
which involves an active process within a woman’s body.
The everyday
meaning
[8] The phrase “conceived a child”
is in common usage. It is commonly understood to refer to an actual pregnancy.
[9] One must examine the context of
the provision. This is a provision about
surrogacy. As expressed in s 5, the purpose(s) of the Act are to safeguard the
interests of the child and regulate surrogacy agreements. There is an
underlying intention to protect the birth mother from duress to surrender her
child. Such issues only emerge after a pregnancy occurs. The Act applies to all
forms of conception. The use of invitro fertilisation is now widespread. In my
experience when lay people talk about IVF treatments they tend to reserve the
term “conceive” for the circumstance where an embryo actually takes to the
uterus and the woman succeeds in becoming pregnant as distinct from even
the procedure of implantation. I am satisfied
that in the ordinary everyday language of the community, the term “conceive a
child” means more than what can be achieved in a test tube and refers to the
commencement of a pregnancy in a woman’s body. This is consistent with the
current editions of both the Oxford English dictionary and the Macquarie
Dictionary. They define “conceive” as, inter alia, “to become pregnant”. The
former publication also defines “conceived”, the adjective, as “brought into
embryonic existence in the womb”.
[10] To construe the cut off point
in s 22 (2) (e) (iv) as the point of pregnancy (and therefore after
fertilisation) is also consistent with the definition of “surrogacy arrangement “ in s 7 of the Act.
[11] AKV’s eggs were fertilised and
preserved before she underwent the emergency procedure that saved her life but
left her unable to carry her own children. This was before the Surrogacy Act
had come into existence. It was therefore impossible for her to enter into an
arrangement under the Act before the embryos were created. The same situation is likely to confront any
woman undergoing emergency procedures in the future, notwithstanding the commencement
of the Act. A woman, although desirous of having a baby,
would have little hope of securing a
compliant surrogacy arrangement in
advance of an emergency
hysterectomy, given the requirements for the identification of a willing
surrogate, proper counselling and legal advice with time to reflect on all of
the implications. The Act is intended to help such people in genuine need of
surrogacy.
[12] Therefore, to interpret the
preconception condition as condition to be satisfied before fertilisation would
not only be contrary to the ordinary language of the provision, it would
frustrate the underlying intention of the Act. There is no reason to reach
beyond the common language for the interpretation of s 22 (2) (e) (iv).
The expert
evidence
[13] The court has an affidavit from
Dr Justin Nasser, an obstetrician and gynaecologist involved in the case, as
well as various definitions from medical dictionaries. Of course, the
construction of the statute is a matter for the court, not doctors, but the
expert evidence of the biological processes is relevant to that task. According
to Dr Nasser:
“The creation of the embryos in 2008
was an act of fertilization. Fertilization is a step on the path way to
conception. Many eggs fertilise but many fewer pregnancies are conceived. The
act of conception or the act of conceiving the pregnancy was the actual embryo
transfer and the subsequent implantation of that embryo into the uterus of Lisa
over the next couple of days with the eventual positive pregnancy test
approximately two week after 7 July 2011... The act of conceiving in this case
is viewed as the act of achieving a pregnancy. Therefore, I view the conception
of LCH as occurring from the
embryo transfer on 7 July 2011.” Dr
Nasser’s professional distinction between
the processes of fertilisation and
conception is consistent with the common understanding of what it means to
conceive a child. The same can be said of the preponderance of definitions from
the medical dictionaries cited.
Authorities
outside of the jurisdiction
[14] Despite extensive research, the
parties have found only one case in which the notion of conception was
considered. This is the English case of
R (John Smeaton on Behalf of the
Society for the Protection of Unborn Children) v the Secretary of State for
Health. It was about the legality of
the morning after pill and therefore
approached the issue of conception
in the context of sexual intercourse
rather than
scientific intervention. The
distinction is not a relevant one as regards the true
meaning of conception. Professor
James Owen Drife, Professor of Obstetrics and
Gynaecology at the University of
Leeds, and, a Vice-President of the Royal College of Obstetricians and
Gynaecologists had testified in this way:
“In my view pregnancy begins when
the pregnancy test is positive, some ten to fourteen days after conception. My
reasons relate to the large numbers of fertilised oocytes which are believed to
be lost during the normal menstrual cycle. I do not believe these can be
described as “pregnancies”. When teaching students, I describe the processes of
spermatogenesis, ovulation and fertilisation as a continuum with implantation
and early pregnancy development. I reserve the term “pregnancy” for the phase
after implantation. When talking to patients, I would not use the term
“pregnancy” until a pregnancy test was positive or a menstrual period had been
missed.”
[15]
The weight of evidence in that case led Munby J to conclude:
“Put very simply, there are two key
stages in the biological process following sexual intercourse:
i) The first is fertilisation. This takes place after the man’s sperm
and the
woman’s
egg have met...
ii) The other key stage is implantation. This takes place after the
fertilised egg has moved into the womb. It involves a process by which the
fertilised egg physically attaches
itself to the wall of the womb. The process
does not start until, at the earliest, some four days after the commencement of fertilisation. The process of
implantation
itself takes some days.”
Conclusion
The
regulation of ART and surrogacy in Australia will inevitably be slower than the
innovations occurring throughout the world. How that regulation will change
remains unknown, but future shocks are likely. What the future holds we will
not know.
Little
did I know just over a year ago that Thailand and then India would lock their
doors, that Nepal and Mexico would open them, the former to be temporarily shut
again, and other countries, such as Greece would be opening them. We continue
to live in interesting times.
[1] Partner,
Harrington Family Lawyers, Brisbane, Australia. Stephen is a Fellow of AAARTA.
He was admitted as a solicitor in 1987, and has been an accredited family law
specialist since 1996. He is an international representative on the American
Bar Association’s Artificial Reproductive Technologies Committee, and is the
principal advocate and co-author of that Committee’s draft paper on the
proposed Hague surrogacy convention. Stephen has advised clients about
surrogacy and fertility issues from all eight Australian jurisdictions and at
last count 17 overseas countries. In 2012 he obtained a world first precedent
that conception occurs with pregnancy, not fertilization.
[2] Jane Cowan, Foreign Correspondent, Australian Broadcasting
Corporation, “The Last Resort”, 8/7/14: http://www.abc.net.au/foreign/archives_2014.htm .
[3] Translated from
the French: plus ca change, plus c’est la meme chose.
[5] Australian
Broadcasting Corporation
[23] Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants http://www.hcch.net/index_en.php?act=conventions.text&cid=39
[24] LAX being one plane flight from Brisbane,
Sydney and Melbourne, and Las Vegas just a quick hop over from LAX.
[25] Taken from figures supplied to me by
clients. All figures are in Australian dollars.
[26] This includes the hidden costs of getting
there and back, accommodation, and getting the baby home.
[27] This
one is a guesstimate based on legal costs involving a bitter surrogacy
litigation some years ago. I was not involved.
[28] One
for everybody, then a separate counsellor for the intended parents, and then a
separate counsellor for the surrogate and her partner. Not surprisingly the
parties could have different versions of what was agreed.
